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2008 DIGILAW 1735 (BOM)

Sugrabee W/o Ikram v. Mubarak Mehboob Pathan

2008-12-11

V.R.KINGAONKAR

body2008
Judgment : 1. Challenge in this appeal is to judgment rendered by learned District Judge, Osmanabad, in an appeal (RCA No.20/1984), whereby and whereunder, judgment and order pertaining to dismissal of suit (RCS No.94/1978) came to be reversed. 2. Original defendant - Sugrabi is appellant herein, whereas original plaintiff - Mubarak is the Respondent. For sake of convenience, they will be referred hereinafter as per their nomenclature in the trial Court. The dispute relates to an agricultural land bearing S.No.10-A, admeasuring 13 acres 5 gunthas situated at village Wanegaon under Tuljapur Tahsil (Dist. Osmanabad). This land will be referred hereinafter as "the suit land". 3. Admittedly, the suit land was originally owned by deceased Basha Maheboobkhan Pathan. He died issueless in or about 1971. He was old aged person. He was, admittedly, suffering from leprosy. 4. The plaintiff’s case before the trial Court was that deceased Basha Pathan bequeathed the suit land in his favour by virtue of a Will-deed dated 15.1963. The deceased - Basha Pathan was his cousin of second degree and there was no other relative to attend him in his last days. He attended deceased Basha Pathan during his last days and looked after him. He use to cultivate the suit land for and on behalf of deceased Basha Pathan. He is in cultivating possession of the suit land more than 12 years preceding the suit. Though the defendant has no right or concern, whatsoever, in respect of the suit land, yet, she unlawfully attempted to disturb his possession. Consequently, he filed suit for declaration to the effect that he is owner and lawful possessor of the suit land and for perpetual injunction restraining her from disturbing his possession. 5. By filingwritten statement (Exh.15), the defendant resisted the suit. She denied that the suit land was bequeathed in the plaintiff’s favour. She asserted that the Will-deed is a forged and fabricated document. She asserted that she is the daughter of real brother of deceased Basha and hence, she is his legal heir. She denied plaintiff’s averment that he is cousin of second degree in relation to deceased Basha. According to the defendant, deceased Basha was blind, deaf and had no fingers to his legs and hands. He used to reside at village Jindobachi Mardi, Tq. Omerga, since about 10 years before his death. She denied plaintiff’s averment that he is cousin of second degree in relation to deceased Basha. According to the defendant, deceased Basha was blind, deaf and had no fingers to his legs and hands. He used to reside at village Jindobachi Mardi, Tq. Omerga, since about 10 years before his death. The suit land was being cultivated by one Sheshrao Deokar on batai basis since after about 1949. She denied that the plaintiff use to maintain deceased Basha during his life time. She contended that the plaintiff manipulated certain collusive revenue entries in respect of the suit land and has set up a false claim on the basis of a forged and fabricated document styled as Will-deed. Consequently, she sought dismissal of the suit. .6. The parties went to trial over issues struck below Exh.51. They adduced oral and documentary .evidence in support of the rival contentions. On merits, the trial Court came to the conclusion that the plaintiff could not establish his case. The trial Court held that the so-called Will-deed (Exh.55) produced by the plaintiff was not proved as required U/s 68 of the Indian Evidence Act. The trial Court noticed that deceased Basha was unable to affix thumb mark on the document due to absence of fingers and at the material time both of his thumbs were impaired due to leprosy. The trial Court further held that the defendant is the legal heir of deceased Basha and hence, was entitled to claim ownership rights in respect of the suit land. The trial Court further held that the plaintiff could not prove his lawful possession and ownership in respect of the suit land. In keeping with such findings, the suit came to be dismissed. The plaintiff preferred an appeal (RCA No.20/84) which came to be allowed vide the impugned judgment and order. 7. The appeal was admitted by this Court as per order dated 27.1990 without formulating any substantial question of law. The Second Appeal cannot be heard without framing substantial question of law in view of limitations engrafted vide Section 100 of the C.P.C. .8. Therefore, I heard learned advocates for the parties in extenso. The following substantial question of law is formulated after hearing the learned counsel for the parties. The Second Appeal cannot be heard without framing substantial question of law in view of limitations engrafted vide Section 100 of the C.P.C. .8. Therefore, I heard learned advocates for the parties in extenso. The following substantial question of law is formulated after hearing the learned counsel for the parties. ."Whether in the facts and circumstances of the present case, the plaintiff, being propounder of the alleged Will-deed dated 15.1963 (Exh.55) discharged burden to dispel doubtful circumstances and the first appellate Court was, therefore, right in holding that the bequeath of the suit land was made by deceased Basha Pathan in plaintiff’s favour.?" 9. Heard learned counsel for the parties. .10. Before I embark on scrutiny of the evidence, it may be mentioned that the pleadings of the plaintiff would show that he sought declaration of ownership in respect of the suit land on strength of the Will-deed dated 15.1963 (Exh.55). The tenor of the plaint reveals that the plaintiff is not closely related to deceased Basha Pathan. He claims to be cousin of second degree in relation to deceased Basha Pathan. The plaint does not show that the defendant is not related to deceased Basha Pathan. What is asserted by the plaintiff is that she does not get any right under the Mohammedan law but manipulated certain false revenue entries at the behest of some of the villagers and, therefore, was attempting to dispossess him. The defendant pleaded that she is the niece of deceased Basha Pathan being the daughter of his real brother, by name, Amin. It was case of the plaintiff that during life time of Basha Pathan, he use to cultivate the suit land and use to maintain him. Coming to the oral evidence of the parties, it may be gathered that P.W. Mubarak (plaintiff) does not state that he use to cultivate the suit land during life time of Basha. He does not state that he took care of deceased Basha and use to look after him. There is no whisper in his statement that due to love and affection, deceased Basha bequeathed the suit land in his favour though, he is a .distinct relative nor he gave details of the pedigree to show his relation with deceased Basha Pathan as a cousin of second degree. He deposed that since the death of Basha Pathan, he is in possession of the suit land. He deposed that since the death of Basha Pathan, he is in possession of the suit land. He also deposed that on the basis of Will-deed (Exh.55), deceased Basha Pathan gave the suit land to him. 11. The version of P.W. Mubarak reveals that reason for the bequeath in his favour is not stated by him. He admits, unequivocally, that deceased Basha was suffering from leprosy and was not having fingers to his hands and legs. He further admits that since about 7/8 years prior to his death, said Basha Pathan was unable to see and hear properly. Though, he denied that the defendant is niece of deceased Basha, yet, this denial does not find place in the plaint. He admits that the defendant is inhabitant of his village. He is unable to state in which year she was married. He was unable to tell since when she is residing in his village. However, he admits that she is residing in his village since her marriage. He further admits that her son is aged about 32 years. In other words, her son is approximately of his age. It appears that P.W. Mubarak either has no personal knowledge or has offered bare denial to avoid her claim as the only heir of deceased Basha Pathan. 12. The only independent evidence tendered by the plaintiff is that of P.W. Tukaram. He claims to have attested the Will-deed (Exh.55). His version purports to show that deceased Basha Pathan executed the Will-deed in favour of P.W. Mubarak (plaintiff) and bequeathed the suit land to him. He narrated that deceased Basha Pathan affixed thumb impression on the Will-deed in his presence. According to him, deceased Basha Pathan gave the suit land to P.W. Mubarak for his maintenance and, therefore, executed the Will-deed. He states that thumbs of deceased Basha Pathan were damaged due to leprosy to certain extent. His version reveals that he purposefully avoided to disclose name of brother of deceased Basha Pathan. The witness would further state that he is unable to locate whether the defendant is daughter of brother of deceased Basha Pathan. The testimony of P.W. Tukaram does not show that deceased Basha Pathan expressed his last will so as to bequeath the suit land in favour of plaintiff -P.W. Mubarak. The witness would further state that he is unable to locate whether the defendant is daughter of brother of deceased Basha Pathan. The testimony of P.W. Tukaram does not show that deceased Basha Pathan expressed his last will so as to bequeath the suit land in favour of plaintiff -P.W. Mubarak. The tenor of his testimony is to the effect that the suit land was given to the plaintiff so as to ensure his maintenance by deceased Basha Pathan. Thus, it was for the purpose of maintenance of deceased Basha Pathan that the Will-deed was executed by him. He does not subscribe to the version of the plaintiff that prior to execution of the Will-deed, the plaintiff use to maintain deceased Basha Pathan and use to cultivate the suit land for and on his behalf. .13. The version of D.W. Sugrabi reveals that deceased Basha Pathan was her real uncle. She deposed that she was aged about five (5) years when her father by name Amin died. Her testimony reveals that name of her grand father was Maheboobkhan. It is pertinent to note that P.W. Tukaram admits that name of father of deceased Basha Pathan was Maheboobkhan. The testimony of D.W. Sugrabi reveals that after death of her father, she was maintained by deceased Basha Pathan. He settled and got performed her marriage. Her version reveals that deceased Basha was unmarried .due to the fact that he was afflicted by leprosy. Her version reveals that deceased Basha use to manage cultivation of the suit land. She states that she came into possession of the suit land after death of said Basha. She admits, very candidly, that father of Basha Pathan and father of plaintiff Mubarak were cousins. She denied that deceased Basha Pathan executed the Will-deed in respect of the suit land. 10.14. The impugned judgment reveals that the first appellate Court gave much importance to the version of P.W. Tukaram, who claims to be attesting witness of the Will-deed (Exh.55). It also appears that the first appellate Court considered the fact that the Will-deed dated 15.1963 (Exh.55) reveals that thumb impressions purportedly affixed by deceased Basha Pathan as a testator are "blurred". The first appellate Court also gave much importance to the fact that the Will-deed also bears thumb impressions of some other persons. It also appears that the first appellate Court considered the fact that the Will-deed dated 15.1963 (Exh.55) reveals that thumb impressions purportedly affixed by deceased Basha Pathan as a testator are "blurred". The first appellate Court also gave much importance to the fact that the Will-deed also bears thumb impressions of some other persons. The first appellate Court considered the claim of the plaintiff that he did look after and maintain the testator and out of love and affection the latter might have executed the private document i.e. Will-deed (Exh.55) and bequeathed the suit property in his favour. This approach of the first appellate Court appears to be improper and incorrect. As stated earlier, P.W. Mubarak could not prove that he use to maintain deceased Basha Pathan before execution of the so-called Will-deed (Exh.55) nor there is any whisper in his statement that deceased Basha Pathan had developed love and affection towards him. Needless to say, the first appellate Court assumed such reasons and rendered finding on basis of mere surmises. 115. Though, P.W. Tukaram states that thumbs of deceased Basha Pathan were damaged to certain extent and a part thereof had peeled off, yet, he did not specify as to what extent the thumbs were damaged. The first appellate Court overlooked categorical statement of P.W. Mubarak that deceased Basha Pathan was not having fingers to his hands and legs. In fact, the testimony of P.W. Mubarak reveals that deceased Basha was unable to affix thumb impression due to absence of fingers to his hands and legs. 116. The recitals of the Will-deed (Exh.55) would show that stamp of Rupee 1/- was purchased by P.W. 2 Tukaram, for and on behalf of the plaintiff. The recitals of the Will-deed would show that deceased Basha Pathan was blind at the material time. It also appears that the plaintiff participated in the execution of the alleged Will-deed (Exh.55). It is narrated in the document that deceased Basha Pathan believed that the plaintiff would maintain him during his life time. It appears that P.W. Tukaram is a interested witness. He has not explained as to why he had purchased the stamp paper for the plaintiff. The scribe of the Will-deed is also not examined. .17. The Will-deed (Exh.55) is not proved in accordance with provisions of Section 63 and Section 68 of the Evidence Act. The Apex Court in "Daulat Ram Vs. He has not explained as to why he had purchased the stamp paper for the plaintiff. The scribe of the Will-deed is also not examined. .17. The Will-deed (Exh.55) is not proved in accordance with provisions of Section 63 and Section 68 of the Evidence Act. The Apex Court in "Daulat Ram Vs. Sodha" (2005 (2) Mh.L.J. (SC) 170), held that Propounder has to show that the Will was signed by testator and he was in sound disposing state of mind. It is observed: ."In order to assess as to whether the Will has been validly executed and is a genuine document, the propounder has to show that the Will was signed by the testator and that he had put his signature to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But where there are suspicious circumstances, the onus is on the propounder to remove the suspicion by leading appropriate evidence. The burden to prove that the Will was forged or that it was obtained under undue influence or coercion or by playing a fraud is on the person who alleges it to be so." .18. The Apex Court in "Gorantla Thataiah Vs. Thotakura Venkata Subbaiah and others" (AIR 1968 Supreme Court 1332), held: ."In a case in which a will is prepared under circumstances which raise the suspicion of the court that it does not express the mind of the testator, it is for those who propound the will to remove that suspicion. What are suspicious circumstances must be judged in the facts and circumstances of each particular case. If, however, the propounder takes a prominent part in the execution of the will which confers substantial benefits on him that itself is a suspicious circumstance attending the execution of the will and in appreciating the evidence in such a case, the court should proceed in a vigilant and cautious manner." 19. If, however, the propounder takes a prominent part in the execution of the will which confers substantial benefits on him that itself is a suspicious circumstance attending the execution of the will and in appreciating the evidence in such a case, the court should proceed in a vigilant and cautious manner." 19. The evidence of the parties would unmistakably show that deceased Basha Pathan was blind at the material time and was unable to put thumb impression due to the fact that he had no fingers to either of the hands and legs. It was improper for the first appellate Court, therefore, to rely on the Will-deed (Exh.55) merely because thumb impressions appearing to have been made by deceased Basha Pathan are "blurred". The version of P.W. Mubarak and P.W. Tukaram falls short to prove that deceased Basha Pathan, in fact, bequeathed the suit land as alleged. The mutation entry No.278 came to be recorded in name of the defendant as the only heir of deceased Basha Pathan. The entries in the 7/12 extract (Exh.5) would show that name of the plaintiff was recorded on the basis of Will-deed vide mutation entry No.155. He has not, however, filed copy of the mutation entry No.155. The plaintiff’s name appeared in the cultivation column for the year 1977-78. The suit was filed after seven (7) years of death of said Basha Pathan. Considering the attending circumstances and the evidence of the parties, I am of the opinion that the plaintiff failed to dispel the reasonable doubts arising from the circumstances. He failed to prove that deceased Basha Pathan was mentally fit to bequeath the suit land in his favour. He also failed to prove that deceased Basha Pathan really had developed love and affection for him due to services rendered by him and desired to make the last will as enumerated in the Will-deed (Exh.55). Under these circumstances, the Will-deed (Exh.55) could not have been upheld as genuine and valid. 20. For the aforestated reasons, I have no hesitation in holding that the plaintiff’s suit is wrongly decreed by the first appellate Court. The trial Court was right in dismissing the suit. Hence, the appeal is allowed. The impugned judgment is set aside and that of the trial Court is restored in its place. No costs.