Madhukar
D. Shende Vs. Tarabai Aba Shedage [2002] Insc 15 (9 January 2002)
R.C.
Lahoti & Brijesh Kumar R.C. Lahoti, J.
The
plaintiff, who has lost in a suit for declaration of title and issuance of
preventive injunction, in the alternative for recovery of possession, from the
courts below as also the High Court, has filed this petition seeking special
leave to file appeal.
Leave
granted.
The
suit property is situated at Shaniwar Peth, Satara in the State of Maharashtra. It bears C.T.S. No.876 and
admeasures 218 sq. meters. It is not disputed between the parties that the suit
property was initially owned by late Bhagubai who expired on 24th September, 1963. According to the plaintiff, late Bhagubai
executed a registered deed of will on 22nd September, 1963 in favour of Chingubai,
who is none else than her own sister's daughter. Having inherited the property
under the will of Bhagubai, Chingubai transferred her title and possession to
the plaintiff under a registered deed of sale dated 24th September, 1976 for a
consideration of Rs.5,000/-. The suit was filed some time in the year 1976 itself
alleging that defendant was threatening to dispossess the plaintiff and was
claiming title in herself. The defendant, in her written statement, submitted
that the property had come to vest in one Babu Kanha Mali who had orally gifted the same to the defendant 35
or 40 years prior to the institution of the suit and therefore the title in the
suit property vested in her. A plea of plaintiff's title having been
extinguished and the same having vested in the defendant by adverse possession
was also raised in the written statement. The trial court found the will dated 22nd September 1963 not proved, and so the plaintiff
having not acquired any title under the sale deed executed by Chingubai in his favour,
and therefore, directed the suit to be dismissed.
The
plaintiff preferred an appeal. He also sought for an amendment of the plaint so
as to seek relief of recovery of possession in alternative to the relief of
preventive injunction, in the event of the defendant being found in possession
of the suit property. The amendment was allowed. However, on merits the
appellate court affirmed the finding of the trial court that the will dated 22nd September 1963 was not proved. This finding has
been maintained by the High Court while dismissing the second appeal preferred
by the plaintiff. It is pertinent to note that before the High Court, the
learned counsel for the defendant did not dispute that the defendant's title in
the suit property was not proved. The learned counsel for the defendant also
gave up the plea of acquisition of title by adverse possession by the
defendant. It was conceded before the High Court that the title in the suit
property undisputedly vested in Bhagubai to begin with and the sale deed dated 24th September, 1976 by Chingubai in favour of the
plaintiff was also proved. The only question surviving for consideration was
whether the approach of the courts below while recording a finding of non-proof
of the will dated 22nd September, 1963 allegedly executed by Bhagubai in favour
of Chingubai was vitiated by error of law and in substance that was the
substantial question of law on which the second appeal was admitted for hearing
by the High Court. The same question arises for consideration before this
Court.
Having
heard the learned counsel for the parties, we are of the opinion that the
findings of the trial court and the first appellate court as also of the High
Court are vitiated for adopting an approach not permitted by law and because of
overlooking the material and relevant legal considerations.
The
High Court has in its judgment summed up the so- called suspicious
circumstances centering around the execution of the will, and found by the
courts below, as under:-
1. At
the time of execution of the will, late Bhagubai was about 80 years of age and
there is complete absence of any medical evidence to show sound and disposing
state of mind of the executant;
2. The
will was executed on 22nd
September, 1963 and
within two days thereafter on 24th September, 1963, the executant expired;
3. The
Sub-Registrar went to the house of the executant for registration of the will
though his office was situated only half a furlong away from the residence of
the executant and no reason has been assigned why the executant could not have
gone to the office of the Sub-Registrar if she was in a sound mental and
physical state;
4. Chingubai,
the plaintiff and beneficiary under the will, has not been examined; Vasant,
son of Chingubai, examined in evidence is not a witness to the execution of
will;
5.
Mohammed and Narhari, the two attesting witnesses to the will, also examined in
the Court, were classmates of Vasant.
Shri Subrat
Birla, the learned counsel for the appellant has submitted that an issue as to
the execution of will has to be determined in a civil case like any other issue
of fact though certain additional considerations become relevant because of the
document being a will in a dispute relating to which the executant is not
available to depose to the factum of execution and the will may have the effect
of interfering with the ordinary and natural course of succession. In any case,
submitted the learned counsel, evidence relating to execution of will cannot be
appreciated with an eye of suspicion and assuming the existence of certain
circumstances as suspicious though there is no suspicion about them. He further
submitted that in a given case, whether the burden of proof relating to
execution of will has been discharged or not should be appreciated in the
background of relationship and status of the parties between whom the dispute
has arisen. Mr. Bhasme, the learned counsel for defendant, submitted that the
concurrent findings of fact arrived at by the courts below and maintained by
the High Court do not call for any interference.
The
requirement of proof of a will is the same as any other document excepting that
the evidence tendered in proof of a will should additionally satisfy the
requirement of Section 63 of the Indian Succession Act, 1925 and Section 68 of
the Indian Evidence Act, 1872. If after considering the matters before it, that
is, the facts and circumstances as emanating from the material available on
record of a given case, the court either believes that the will was duly executed
by the testator or considers the existence of such fact so probable that any
prudent person ought, under the circumstances of that particular case, to act
upon the supposition that the will was duly executed by the testator, then the factum
of execution of will shall be said to have been proved. The delicate structure
of proof framed by a judicially trained mind cannot stand on weak foundation
nor survive any inherent defects therein but at the same time ought not to be
permitted to be demolished by wayward pelting of stones of suspicion and
supposition by wayfarers and waylayers. What was told by Baron Alderson to the
Jury in R v. Hodge 1838, 2 Lewis CC 227 may be apposite to some extent
"The mind was apt to take a pleasure in adapting circumstances to one
another and even in straining them a little, if need be, to force them to form
parts of one connected hole;
and
the more ingenuous the mind of the individual, the more likely was it,
considering such matters, to overreach and mislead itself, to supply some
little link that is wanting, to take for granted some fact consistent with its
previous theories and necessary to render them complete." The conscience
of the court has to be satisfied by the propounder of will adducing evidence so
as to dispel any suspicions or unnatural circumstances attaching to a will
provided that there is something unnatural or suspicious about the will. The
law of evidence does not permit conjecture or suspicion having the place of
legal proof nor permit them to demolish a fact otherwise proved by legal and
convincing evidence. Well founded suspicion may be a ground for closer scrutiny
of evidence but suspicion alone cannot form the foundation of a judicial
verdict positive or negative.
It is
well-settled that one who propounds a will must establish the competence of the
testator to make the will at the time when it was executed. The onus is
discharged by the propounder adducing prima facie evidence proving the
competence of the testator and execution of the will in the manner contemplated
by law. The contestant opposing the will may bring material on record meeting
such prima facie case in which event the onus would shift back on the propounder
to satisfy the court affirmatively that the testator did know well the contents
of the will and in sound disposing capacity executed the same. The factors,
such as the will being a natural one or being registered or executed in such
circumstances and ambience, as would leave no room for suspicion, assume
significance. If there is nothing unnatural about the transaction and the
evidence adduced satisfies the requirement of proving a will, the court would
not return a finding of 'not proved' merely on account of certain assumed
suspicion or supposition. Who are the persons propounding and supporting a will
as against the person disputing the will and the pleadings of the parties would
be relevant and of significance.
The factum
of will having been executed by Bhagubai in favour of Chingubai, the sister's
daughter, bequeathing the suit property is specifically alleged in the plaint.
In the written statement excepting for a bare denial, there is no other
pleading raised questioning the sane disposing capacity of Bhagubai at the time
of execution of will. It is true that the plaintiff Chingubai did not appear in
the witness box but that is because she was indisposed. Her son has appeared in
the witness box. The two attesting witnesses on account of being known to Chingubai's
son, being his classmates, were known to the family, and therefore, were natural
witness to be called to attest the execution of will. On account of their
acquaintance with the family, they could have naturally known and identified
the executant. Merely because of being classmates they would be interested in
obliging their classmates' mother so as to benefits her and go to the extent of
falsely deposing is too far fetched an inference to draw. The contents of the
will, coupled with oral evidence, show that for last 25/30 years, Chingubai had
taken care of Bhagubai and it was due to love and affection of Bhagubai for Chingubai
that the former was bequeathing her properties in favour of Chingubai. Chingubai
is none else than Bhagubai's sister's daughter and probably the only heir.
There is nothing to suggest that Bhagubai had anyone else than Chingubai, who
could be a closer heir or relation of Bhagubai and with whom Bhagubai could
have spent her last days. No other relation of Bhagubai, who would have
succeeded to the estate of Bhagubai if the will would not have been there, has
come forward to dispute or to object to the will. The challenge is thrown by a
stranger to the family and one who has trespassed upon the property.
There
is another very important piece of evidence. There are four properties
bequeathed by the same will by late Bhagubai in favour of Chingubai. One of
those four pieces of property (and not the property in dispute in the present
proceedings) has been earlier a subject matter of dispute and litigation
between these very parties. It appears that such other property was held by Tarabai,
the defendant respondent as a tenant of Bhagubai while the property CTS No.876
(subject matter of dispute in the present proceedings) was trespassed upon by Tarabai.
As to the tenancy premises, Chingubai filed a suit for ejectment against Tarabai
after terminating her tenancy and claiming right to sue by virtue of this very
will dated 22.9.63. In that suit also Tarabai, the defendant-respondent, had
denied the will. The suit was dismissed by the trial court. The plaintiff Chingubai
preferred an appeal in the court of District Judge, Satara which was allowed.
In its judgment dated 30.8.1966, the learned District Judge while dealing with
the will held inter alia as under:
"Bhagubai
was a helpless widow staying in her old age under the protection of Chingubai
at her place and she appears to have insignificantly small property and
naturally she would desire to give this property to the person who was looking
after her in her old age when she had become helpless. The Sub-Registrar has
examined the woman and being satisfied about the testamentary capacity of the
woman has registered the will. This also is the circumstance which has to be
taken into consideration. Having regard to the fact that the Will is challenged
by a mere tenant having no interest in the property except by adverse
possession, the evidence which has been tendered is, in my view, adequate to
prove the testamentary capacity as well as the execution of the Will.
Therefore,
differing with the learned Judge of the trial court, I hold that the will has
been duly propounded and the proof tendered for execution of the will and the proof
of the fact that Bhagubai was having disposing state of mind at the time of the
execution of the will are adequately proved in this case. Under these
circumstances I hold that Chingubai has succeeded in establishing the fact that
the will propounded by her confers on her such interest as may be had by Bhagubai."
The defendant Smt. Tarabai filed a petition under Article 227 of the
Constitution before the High Court laying challenge to the judgment of District
Judge. The High Court by judgment dated 2.10.1970(in Special Civil Application
No.1802 of 1966) while dealing with this very will recorded the following
finding:
"In
the first place, the Defendant has not led any evidence whatsoever to raise any
doubt about the evidence of the Plaintiff. Secondly, the will is attested and a
registered document. Thirdly, the plaintiff has examined the attesting witness,
who was in a position to judge whether Bhagubai was in a disposing state of
mind or not. Now, the finding of this issue essentially is a finding of fact
and I cannot conceive any reason why this one sided evidence could not have
been believed by the lower appellate court." The finding of the lower
Appellate Court holding the will to be a duly attested and registered document
executed by Bhagubai was upheld. This finding has been discarded in the present
proceedings by all the three courts, up to the High Court, on a singular
reasoning that the property in the earlier suit being a different one, the
finding as to excution of the will could not be res judicata in the present
proceeding though the parties are same. To our mind, the three courts upto the
High Court have all missed something significant as stated hereinafter.
Shri Subrat
Birla the learned counsel for the plaintiff-appellant submitted that the above
said decisions which are inter party would constitute res judicata for the
purpose of the present suit and the finding that the will dated 22.9.1963 is a
duly executed last will and testament of late Bhagubai could not have been
re-agitated by the defendant-respondent in the present suit. On the other hand,
Shri Bhasme the learned counsel for the defendant-respondent submitted that the
previous suit, though between the same parties, related to some other property
and was based on landlord-tenant relationship and any finding recorded in the
decision therein would not constitute res judicata in the present suit which is
a title suit. We are not inclined, in the facts and circumstances of this case,
to weigh the admissibility and binding efficacy of the decision rendered in the
earlier suit on the doctrine of res judicata and holding the earlier decisions
as conclusive between the parties. Res judicata is a mixed question of fact and
law.
We do
not find the plea of res judicata having been raised in the plaint.
Copies
of pleadings and issues framed in the earlier suit have not been tendered in
evidence and we do not find any issue on res judicata having been framed and
tried between the parties in the present suit.
No
submission raising the plea of res judicata was made before any of the courts
below or the High Court. We do not think such a plea can be permitted to be
raised before this Court for the first time and at the hearing. However, still
it cannot be lost sight of that the earlier litigation was between the same
parties wherein this very will was relied on by this very plaintiff in support
of his title to the property in dispute therein. The plaintiff's right to sue
based on this very will was claimed and asserted in the earlier suit and was
upheld though denied by this very defendant. These facts and finding are
recorded in the previous judgment and have relevance in the present suit. [Also
see, SCC 331]. Thus away from res judicata the judgment given in the earlier
suit is relevant piece of evidence under Sections 11, 13 and 35 of the Evidence
Act and has a material bearing on the controversy arising for decision in the
present suit. This material aspect has been completely overlooked by the High
Court and the courts below. A relevant and material piece of documentary
evidence, of undoubted veracity, has been ignored and that is a serious error
of law having a vitiating effect on the finding on most vital issue in the
case.
Other reasonings
of the trial court and the first appellate Court, for holding the will not
proved, too, to say the least, verge on absurdity.
Bhagubai
died a day after the execution and registration of the will.
There
is nothing to show that Bhagubai was physically or mentally incapacitated from
executing the will. On the one hand, the courts below have questioned the
propriety of the Sub-Registrar having come to the house of Bhagubai for
registering the will on the ground as to why Bhagubai could not have gone to
the office of Registrar on an assumption that she was fit to do so and yet the
mental capacity of Bhagubai to execute the will has been doubted. The two
attesting witnesses have been held to be 'interested' on the ground of their
being classfellows of Chingubai's son and on the other hand, it has been
doubted whether they would have known and identified the executant.
There
is nothing to doubt the mental and physical capacity of Bhagubai but the same
has been suspected because of "complete absence of any medical evidence,
of a doctor which would show that the testator was in a sound and disposing
state of mind". There is no rule of law or of evidence which requires a
doctor to be kept present when a will is executed. In short, the courts below
have allowed their findings to be influenced by such suspicion and conjectures
as have no foundation in the evidence and have no relevance in the facts and
circumstances of the case and unwittingly allowed their process of judicial
thinking to be vitiated by irrelevant reasonings and considerations. The
weighty factor that the factum of execution of will by Bhagubai was being
denied by a rank trespasser without raising any specific pleadings and the fact
that no relation of Bhagubai has chosen to lay a challenge to the will, have
been simply overlooked. In our opinion, the High Court ought not to have
sustained such a perverse finding which would result in the property of a
rightful owner being lost to a trespasser.
The
appeal is allowed. The judgment and decree of the Trial Court as upheld by the
first Appellate Court and the High Court are set aside. Instead the suit filed
by the plaintiff is directed to be decreed .
The
plaintiff is declared to be the owner of the suit property and entitled to
recovery of possession from the defendant. The defendant shall hand over vacant
and peaceful possession of the suit property to the plaintiff within a period
of two months from today failing which the plaintiff shall be entitled to
execute the decree and recover possession. The plaintiff appellant shall also
be entitled to costs throughout.
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