Sambhaji Mane Vs. Ramchandra Vithal Ganeshkar & Ors  INSC 297 (10 July 1995)
Sujata V. (J) Manohar Sujata V. (J) Agrawal, S.C.
1995 AIR 2086 1995 SCC (5) 215 JT 1995 (7) 363 1995 SCALE (4)271
10TH DAY OF JULY, 1995 Present:
Mr. Justice S.C.Agrawal Hon'ble Mrs.Justice Sujata V. Manohar Mr. M.S. Ganesh,
Adv. for the appellant Mr.S.B.Wad, Sr. Adv. Mrs.S.Usha Reddy and Mrs. Jayasree
Wad, Advs. with him for the Respondents.
following Judgment of the Court was delivered:
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL
APPEAL NO. 2409 OF 1978 Vrindavanibai Sambhaji Mane ...Appellant V. Ramchandra Vithal
Ganeshkar ...Respondents and Ors. Mrs. Sujata V. Manohar. J.
appellant Vrindavanibai was the original defendant no.1 in the suit filed by Vithalrao
Ganpatrao Ganeshkar in the Court of the Civil Judge, Junior Division, at Pune.
The present respondents 1 to 5 are the heirs and legal representatives of the
original plaintiff Vithalrao Ganpatrao Ganeshkar. The suit was filed for a
declaration that the plaintiff was the owner of the suit property which
consists of a house bearing no.674, Narayan Peth at Pune.
suit property originally belonged to one Rangubai Maruti Ganeshkar. She died on
28.2.1947 and her property was inherited by her daughter Babubai Sonba Pawar. Babubai
was widowed in childhood. She had no children. She was in possession of this
house till her death. She resided in one of the rooms in this house. The other
rooms were rented out.
life time she was managing this property, recovering rent and maintaining
herself from this income. Babubai's mother had a sister Gangubai. Gangubai had
two daughters - Vrindavanibai and Indubai who are the appellant and respondent
no.2 before us. Babubai had good relations with the appellant Vrindavanibai and
her husband. The appellant often visited Babubai and generally looked after
died on 27.11.1963 on account of a heart attack. She was 50 years of age at the
time of her death. Prior to her death, she made a will dated 25.7.1963 under
which she has given all her properties to the appellant. Accordingly, the
appellant claims to be the owner of the property which is the subject matter of
dispute in the present proceedings.
original plaintiff Vithalrao Ganpatrao Ganeshkar was Rangubai's husband's
brother's son. From the evidence which is on record, it is apparent that the
original plaintiff or his family had not kept in touch with Babubai during her life
time. His son, who gave evidence at the trial, was not able to say anything
about how Babubai maintained herself during her life. Under the Hindu
Succession Act by which the parties are governed, the original plaintiff would
be the heir of Babubai had she died intestate.
the death of Babubai the appellant and her husband were in possession and
management of the suit property. The plaintiff Vithalrao tried to take
possession of the room which had been occupied by Babubai, as well as her moveables.
As a result of which, in December 1964 a police complaint was lodged and the
room was sealed. In March 1965 Vithalrao applied to get his name entered in
respect of this property in the City Survey Records. This was opposed by the
appellant and her husband. Ultimately, the names of Vithalrao as well as the
appellant and her sister - the 6th respondent, were entered in the City Survey
February 1967 the present suit was filed by Vithalrao for a declaration that he
was the owner of the said property and for its possession. In the written
statement which is filed by the appellant, she claimed title to the suit
property by virtue of the will left by Babubai in her favour. The written
statement was filed by her sometime in March 1968. Immediately, thereafter, she
produced the original will in court. The plaintiff did not raise any plea
questioning either the genuineness or the validity of the Will.
Trial Court framed an issue as to whether the appellant Vrindavanibai had
become the owner of the property of Babubai by virtue of the will dated 25.7.63
trial, the appellant led the evidence of two attesting witnesses of the Will
who deposed that they were present at the time of execution of the Will at the
invitation of Babubai. They had seen Babubai put her signature on the Will in
their presence and each of them had put his signature on the Will as an
attesting witness in the presence of Babubai as well as in the presence of each
other. The appellant also examined herself. She deposed that in the Diwali of
the year 1963 Babubai gave her the Will.
is how she came to know that Babubai had executed a Will in her favour on
25.7.1963. Neither she nor her husband were present at the time of execution of
the Will and did not know anything about the Will until it was given to her in
the Diwali of 1963. She did not know how the Will was got prepared by Babubai.
As against this evidence the plaintiff did not examine himself. His son Maruti,
however, gave evidence on behalf of the plaintiff. He denied the Will and
claimed the property as an heir of Babubai.
Trial Court held that the Will was not proved as it was not entirely satisfied
about the testimony of attesting witnesses. It decreed the suit. In appeal,
however, the District Court at Pune, after analysing the entire evidence, has,
by a detailed reasoning come to the conclusion that the Will has been properly
proved by the appellant. The Appellant Court accepted the testimony of the two
attesting witnesses as properly proving the Will. The Court further observed
that without any basis, the Trial Court ought not to have rejected the
testimony of the two attesting witnesses who were not shaken in
cross-examination though there might be minor discrepencies. Both these
witnesses were known to the testatrix. They have deposed that they were called
by her on the 25th of July, 1963 to her residence for the purpose of attesting
her Will. The Appellate Court came to the conclusion that there was nothing
suspicious about the circumstances relating to the execution of the Will or the
testimony given by the two attesting witnesses. The Appellate Court also noted
that the plaintiff did not take any plea challenging the genuineness of Babubai's
signature on the Will nor was it alleged that the Will was a forged document
prepared after the death of Babubai by the appellant to obtain her property.
There was also no plea of any undue influence being exercised by the appellant
over Babubai to get a Will executed in her favour.
order to satisfy its conscience the Appellate Court has also looked at the
undisputed signatures of Babubai which were available on Exhibits 54 to 56
which are rent receipts signed by Babubai. After comparing these signatures
with the signature on the Will, the court observed that the signature on the
Will is genuine. As there was no challenge to the genuineness of the signature
of Babubai on the Will, neither party led any expert evidence on this aspect.
only "suspicious circumstance" relied upon by the plaintiff was, that
the Will was not produced by the appellant immediately after the death of Babubai,
or at the earliest possible opportunity. It was not produced till she filed her
written statement in March 1968. There was a police complaint filed in December
1964 when the plaintiff had tried to take possession of Babubai's room. On this
occasion the appellant or her husband did not make any statement relating to
the existence of a Will in their favour. In the proceedings before the City
Survey Officer, a statement was given by the husband of the appellant. He also
did not make any reference to the Will of Babubai in favour of the appellant.
Appellate Court has held that on both these occasions the dispute was only
regarding the possession of the property. It was not an occasion on which the
appellant was required to establish her ownership or title over the suit
property. Hence, she may have decided not to disclose the existence of the Will
in those proceedings, and might have bided her time.
considering the entire evidence before it, the Appellate Court held that the
appellant had proved the Will and consequently her title to the suit property.
The appeal was, therefore, allowed.
Second Appeal, the learned Single Judge of the High Court has, however, re-assessed
the entire evidence and has come to the conclusion that the appellant has not
dispelled suspicious circumstances surrounding the execution of the Will. It is
difficult to appreciate this kind of re- assessment of evidence in Second
Appeal. Ordinarily, the decision on facts arrived at by the first Appellat
Court is not disturbed in Second Appeal. The Appellate Court had, for cogent
reasons, accepted the testimony of the two attesting witnessess. It is
difficult to see why this testimony was not accepted in Second Appeal.
Moreover, the Appellate Court had examined the question of non-disclosure of
the Will on two earlier occasions and had found that there was nothing
suspicious in that regard. The Will had been produced in court immediately
after the appellant had relied upon it in her written statement. Learned Single
Judge of the High Court seems to consider this as a suspicious circumstance
forgetting that there was no specific challenge to either the validity or
proper execution of the Will.
also apparent that there is nothing unnatural about the contents of the Will.
The evidence before the court makes it clear that while the plaintiff and his
family had not cared to enquire after Babubai and had not cared to look after
her during her life time, the appellant and her husband had throughout looked
after Babubai and maintained good relations with her. If, therefore, she made a
Will leaving her properties to the appellant, this was only natural. The 6th
respondent who is the sister of the appellant and who was also on good terms
with Babubai has not challenged the Will.
back as in 1894 the Privy Council in the case of Choteynarain Singh v. Mussamat
Ratan Koer (22 Indian Appeals 12) observed that in the case of execution of a
Will, an improbability must be clear and cogent. It must approach very nearly
to, if it does not altogether constitute, an impossibility. This was reiterated
by the Calcutta High Court in the case of Kristo Gopal Nath v. Baidya Nath
& Ors. (AIR 1939 Cal. 87). It said that when a court is dealing with a
testamentary case where there is a large and consistent body of testimony
evidencing the signing and attestation of the Will, but where it is suggested
that there are circumstances which raise a suspicion and make it impossible
that the Will could have been executed, the correct line of approach is to see
that the improbability in order to prevail against such evidence must be clear
and cogent and must approach very nearly to, if it does not altogether
constitute, an impossibility. There is no such improbability about the Will in
the present case.
is also a large body of case law about what are suspicious circumstances
surrounding the execution of a Will which require the propounder to explain
them to the satisfaction of the court before the Will can be accepted as
genuine. A Will has to be proved like any other document except for the fact
that it has to be proved after the death of the testator. Hence, the person
executing the document is not there to give testimony. The propounder, in the
absence of any suspicious circumstances surrounding the execution of the Will,
is required to prove the testamentary capacity and the signature of the
testator. Some of the suspicious circumstances of which the court has taken
The propounder taking a prominent part in the execution of a Will which confers
substantial benefits on him;
feeble mind which is likely to be influenced;
Unfair and unjust disposal of property. (See in this connection: H. Venkatachala
Iyengar v. B.N. Thimmajamma & Ors. (1959 Supp. (1) SCR 426), Indu Bala Bose
& Ors. v. Manindra Chandra Bose & Anr. (1982 (1) SCR 1188 at p. 1192)
and Guro(Smt.) v. Atma Singh & Ors. (1992 (2) SCC 507 at p. 511). Suffice
it to say that no such circumstances are present here.
Advocate for respondents 1 to 5 has submitted that Babubai was only fifty years
of age when she died. She was enjoying normal health. There was no reason for
her to make the Will. But in the Will itself Babubai has mentioned that she is
suffering from physical weakness although she is not a very old person and
hence she is making the Will. In any case, motive for making the Will is not
fact that testatrix made a Will at the age of fifty cannot be considered as a
suspicious circumstance reflecting on the genuineness of the Will.
premises, the High Court was not right in re- appraising evidence in Second
Appeal and coming to the conclusion that the Will was not genuine or was not proved.
appeal is, therefore, allowed. The judgment and order of the High Court is set
aside and the judgment and order of the first Appellate Court is restored.
There will, however, be no order as to costs.