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2008 DIGILAW 351 (BOM)

Pandurang Gunda Patil v. Dattu Dada Patil

2008-03-05

D.K.DESHMUKH, V.M.KANADE

body2008
JUDGMENT (PER D.K. DESHMUKH J.): 1. The parties to both these appeals are the same, both the appeals relate to the wills of the same person. Therefore, both these appeals can be conveniently disposed off by a common order. 2. Rama Krishna Patil, resident of Sangli, owned movable and immovable properties. Dattu Dada Patil, Raghunath Dada Patil, Ramchandra Dada Patil, Pandurang Dada Patil, Laxman Dada Patil, Narayan Dada Patil and Dhondiram Akaram Patil (hereinafter referred to as the applicants) filed miscellaneous application No.1 of 1976 for grant of letters of administration in relation to the will dated 25th May 1972 alleged to have been executed by Rama Krishna Patil who expired on 10th February 1975. It appears that by that will dated 25th May 1972, Rama Krishna Patil had bequeathed a part of his property to the applicants. To this application, Pandurang Gunda Patil, Nivrutti Gunda Patil, Ganpati Gunda Patil, Vasant Gunda Patil and Smt Tanubai Gunda Patil were joined as opponents (hereinafter referred to as the opponents). The application for letters of administration filed by the applicants was opposed by the opponents. The will in relation to which the letters of administration was claimed is a registered will. The principal defence was that on 25th May 1972, the date on which the will was alleged to be executed, the said Rama Krishna Patil was in hospital. In support of their case, the applicants examined Raghunath Dada Patil, who was one of the applicants, Kashinath Patankar who had scribed the will and Baburao Patil who attested thumb impression of the testator on the will. The opponents examined one of them, i.e. Pandurang Gunda Patil. The Joint Civil Judge, Senior Division, Sangli by his judgment dated 3rd August 1982 granted the application and issued letters of administration as prayed for. Against the judgment of the Trial Court, first appeal No.2573 of 1983 was preferred in this Court. The learned Single Judge of this Court by order dated 10th February 2000 dismissed that appeal. Challenging the order of the Trial Court and the learned Single Judge, present letters patent appeal being letters patent appeal No.161 of 2001 has been filed. 3. Against the judgment of the Trial Court, first appeal No.2573 of 1983 was preferred in this Court. The learned Single Judge of this Court by order dated 10th February 2000 dismissed that appeal. Challenging the order of the Trial Court and the learned Single Judge, present letters patent appeal being letters patent appeal No.161 of 2001 has been filed. 3. Miscellaneous application No.151 of 1976 was filed by the applicants, also for grant of letters of administration in relation to the will left behind by the same Rama Krishna Patil dated 6th February 1975 whereby, it appears, he bequeathed the property that remained with him and was not disposed off by the earlier will dated 25th May 1972. As observed above, Rama Krishna Patil died on 10th February 1975. The will dated 6th February 1975 in relation to which miscellaneous application No.151 of 1976 was filed is also are gistered will. To this application also, the opponents were joined as opponents, they contested the application. The principal defence was that on 6th February 1975, the date on which the testator is alleged to have made the will, he was not of sound and disposing mind. In support of their case, the applicants examined one of them i.e. Dhondiram Akaram Patil, they also examined Sitaram Govind Patil who had attested the thumb impression of the deceased on the will and kashinath Patankar, who has scribed the will. Miscellaneous application No.151 of 1976 was decided by the Joint Civil Judge, Senior Division, Sangli by his judgment dated 8th February 1983. The Trial Court rejected the application. Feeling aggrieved by that judgment, the applicants preferred first appeal No.353 of 1983. That first appeal was decided by the learned Single Judge of this Court by order dated 8th February 2000. The learned Single Judge dismissed the first appeal. Challenging the order passed by the Trial Court and the learned Single Judge, letters patent appeal No.162 of 2001 has been filed. 4. Now, first taking up letters patent appeal No.161 of 2001 for consideration, the learned counsel appearing for opponents, who were appellants in that appeal, submitted that the Courts below were not justified in holding that the will dated 25th May is a valid will. According to the learned counsel, the Courts should have seen that by that will, it was alleged that only part of the property was disposed off by the deceased. According to the learned counsel, the Courts should have seen that by that will, it was alleged that only part of the property was disposed off by the deceased. The learned counsel also took us through the evidence on record to show that on the date on which Rama Krishna Patil is alleged to have executed the will, he was in hospital. He also submitted that it is unnatural that the deceased will dispose off only a part of his property by the will. The learned counsel also relied on a judgment of the Supreme Court in the case of Rani Purnima Debi and anr., v/s Kumar Khagendra Narayan Deb and anr., reported in AIR 1962 SC 567 . The learned counsel appearing for applicants, who are respondents in this letters patent appeal, on the other hand, submitted that the Trial Court and the learned Single Judge have appreciated the evidence on record and have recorded findings in favour of the applicants. The learned counsel submits that the principal defence of the opponents was that on the date on which the will was executed, Rama Krishna Patil was in hospital and therefore, cannot be in Sangli where the will is supposed to have been registered. The learned counsel submits that however, no documentary evidence has been produced to show that on the relevant day, Rama Krishna Patil was in hospital. The doctor who treated him in the hospital has not ben examined. The learned counsel therefore submits that there is no reason to disturb the orders passed by the learned Trial Court and the learned Single Judge of this Court. 5. So far as letters patent appeal No.162 of 2001 is concerned, the learned counsel appearing for applicants submits that the Trial Court and the learned Single Judge have not appreciated the evidence on record properly. He submits that their approach was erroneous. The learned counsel submits that admittedly, the will which was propounded by the applicants dated 6th February 1975 was a registered will and no suspicious circumstances in relation to the registration of the will has been brought on record. According to the learned counsel therefore, the Trial Court committed an error in not granting letters of administration. The learned counsel submits that admittedly, the will which was propounded by the applicants dated 6th February 1975 was a registered will and no suspicious circumstances in relation to the registration of the will has been brought on record. According to the learned counsel therefore, the Trial Court committed an error in not granting letters of administration. The learned counsel submits that perusal of the judgment of the Trial Court shows that the Trial Court has recorded a finding that Rama Krishna Patil was not of sound and disposing mind on 6th February 1975 because his age was 95 years. The learned counsel submits that however, there is no evidence on record except a mention in the death certificate that in 1975, the age of Rama Krishna Patil was 75 years. The learned counsel submits that in the will, which has been held to be valid by the Trial Court in year 1972, the age of the deceased has been mentioned as 70 years and therefore in 1975, the deceased could not have been 95 years of his age. The learned counsel submits that the Trial Court has committed a grave error in appreciating evidence on record. The learned counsel also relies on a judgment of the Supreme Court in the case of Madhukar D. Shende v/s Tarabai Aba Shedage, reported in (2002) 2 SCC 85 . The learned counsel appearing for opponents, on the other hand, who are respondents in this appeal, submits that the evidence on record has been appreciated by the learned Trial Court and the learned Single Judge and the finding that has been recorded by them is a possible finding to be recorded on the basis of oral evidence on record. In the submission of the learned counsel therefore, there is no reason to disturb the findings recorded by the Trial Court and the learned Single Judge. 6. Now if in the light of these rival submissions in both the appeals the record of the cases is perused, it becomes clear that both the wills in relation to which letters of administration were claimed are registered wills. Both the wills have been registered in the office of the Sub-Registrar, Sangli. 6. Now if in the light of these rival submissions in both the appeals the record of the cases is perused, it becomes clear that both the wills in relation to which letters of administration were claimed are registered wills. Both the wills have been registered in the office of the Sub-Registrar, Sangli. So far as the approach of the Court while considering validity of a will which is a registered will is concerned, in our opinion, observations of the Supreme Court in paragraph 23 of its judgment in the case of Rani Purnima Debi referred to above are relevant. Paragraph 23 reads as under :- "23. There is no doubt that if a will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration will dispel the doubt as to the genuineness of the will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the will did not read it over to the testator or did not bring home to him that he was admitting the execution of a will or did not satisfy himself in some other way (as, for example, by seeing the testator reading the will) that the testator knew that it was a will the execution of which he was admitting, the fact that the will was registered would not be of much value. It is not unknown that registration may take place without the executant really knowing what he was registering. Law reports are full of cases in which registered wills have not been acted upon (see, for example, Vellaswamy Servai v. Sivaraman Servai, ILR 8 Rang. 179 : (AIR 1930 PC 24), Surendra Nath v. Jnanendra nath, AIR 1932 Cal. It is not unknown that registration may take place without the executant really knowing what he was registering. Law reports are full of cases in which registered wills have not been acted upon (see, for example, Vellaswamy Servai v. Sivaraman Servai, ILR 8 Rang. 179 : (AIR 1930 PC 24), Surendra Nath v. Jnanendra nath, AIR 1932 Cal. 574 and Girija Datta Singh v. Gangotri Datt Singh, (S) AIR 1955 SC 346 . Therefore, the mere fact of registration may not by itself be enough to dispel all suspicion that may attach to the execution and attestation of a will; though the fact that there has been registration would be an important circumstance in favour of the will being genuine if the evidence as to registration establishes that the testator admitted the execution of the will after knowing that it was a will the execution of which he was admitting." Perusal of the above quoted observations of the Supreme Court shows that if the will is registered, that circumstance goes to a long way to prove the genuineness of the will though by itself is not enough to dispel all suspicion that may attach to the execution and attestation of the will. On the other hand, if after submitting the evidence as to registration to close scrutiny, the Court finds that the will was registered after it was brought home of the testator, that the document of which he is admitting execution is his will and thereafter he admitted execution and signed it in token thereof, the registration will dispel doubts as to the genuineness of the will. Therefore, in our opinion, in order to find out whether both the wills propounded were genuine wills or not, we will have to see the evidence that has been led in relation to the registration of the wills. So far as writing of will is concerned, there are two witnesses examined by the applicants, one is Baburao who has attested the thumb impression of the deceased on the will who states that he went to the scriber Kashinath Patankar alongwith the deceased on 25th May 1972 on the instructions from Rama Krishna Patil, the scriber wrote the will. The will was handed over by the scriber to the deceased and thereafter thumb impression of the deceased was taken on the will. Thereafter, the will was taken to the Sub-Registrar’s Office for registration. The will was handed over by the scriber to the deceased and thereafter thumb impression of the deceased was taken on the will. Thereafter, the will was taken to the Sub-Registrar’s Office for registration. Baburao stated that he accompanied the deceased to the Sub-Registrar’s Office. In the Sub-Registrar’s Office, one Raghunath Kundalika Chouthe, advocate’s Clerk identified the deceased for the benefit of the Sub-Registrar and then the will was registered. So far as the cross-examination of this witness is concerned, there is no cross-examination whatsoever on the aspect of registration of the will except that the suggestion is given that on that day, Rama Krishna Patil was in the hospital of Dr Udgaonkar. So far as the deposition of scriber Kashinath Patankar is concerned, he confirms the attesting witness Baburao Patil in all particulars regarding writing of the will and obtaining thumb impression of the deceased on the will. He also stated that thereafter he sent the will for registration to the Sub-Registrar’s office. Thus, in this case, oral evidence in relation to the registration of the will led is reliable evidence. Perusal of the will shows that there is an endorsement made on the document by the Sub-Registrar that the Sub-Registrar called one Raghunath Kundalika Chouthe, who was a person known to the Sub-Registrar to identify the deceased and that person identified the deceased and thereafter the Sub-Registrar asked the deceased whether the will has been scribed as per his instructions and the Sub-Registrar has certified that the will has been scribed as per deceased’s instructions. It is thus clear that so far as 1972 will is concerned, there is no evidence on record which will create any doubt or suspicion in relation to the circumstance of registration of the will. So far as the submission about the will being in relation to only a part of the property of the testator is concerned, it has come in evidence that in 1972, the wife of the testator was alive, therefore he disposed off only a part of his property by the 1972 will. In so far as 1972 will is concerned, as observed above, the defence of the opponents was that on that date, the deceased was in the hospital of Dr Udgaonkar and therefore, the deceased could not have made his will at Sangli on that date. In so far as 1972 will is concerned, as observed above, the defence of the opponents was that on that date, the deceased was in the hospital of Dr Udgaonkar and therefore, the deceased could not have made his will at Sangli on that date. Perusal of the deposition of witness Pandurang Patil, who is the only witness examined on behalf of the opponents, shows that he admits that there were case papers prepared for admitting Rama Krishna Patil to the hospital of Dr Udgaonkar. He also states that Dr Udgaonkar is still alive on the date on which he was deposing, but he has not produced any case papers in support of his case that on 25th May 1972, Rama Krishna Patil was in hospital. He has also not examined Dr Udgaonkar. Thus, it is clear that the only defence put up in relation to the genuineness of the 1972 will has not been proved by the opponents and therefore, we find no fault with the finding recorded by he Trial Court and the learned Single Judge in relation to 1972 will. Now taking 1975 will for consideration, as observed above, 1975 will is also a registered will. In so far as writing and registration of that will is concerned, depositions of two witnesses are relevant, one is Kashinath Patankar i.e. scriber, other is Sitaram Hari Chavan who had attested thumb impression of the deceased on the will. Sitaram Chavan states in his deposition that on 6th February 1975 he accompanied the deceased to Sangli. In his presence, on the instructions given by the deceased, Kashinath scribed the will, it was read over by Kashinath to the deceased, thereafter thumb impression was put on the will by the deceased, it was attested by the witness Sitaram Chavan and thereafter the deceased alongwith the witness Sitaram Chavan went to the Sub-Registrar’s office for registration. This version is confirmed by the scriber in his deposition. So far as registration of the document is concerned, witness Sitaram Chavan states that he alongwith deceased went to the Sub-Registrar’s Office, the document of will was with them, the Sub-Registrar called Mahadeo Chavan of Sangliwadi who was a person known to the Sub-Registrar, to identify the deceased. After he identified the deceased, the will was registered. So far as registration of the document is concerned, witness Sitaram Chavan states that he alongwith deceased went to the Sub-Registrar’s Office, the document of will was with them, the Sub-Registrar called Mahadeo Chavan of Sangliwadi who was a person known to the Sub-Registrar, to identify the deceased. After he identified the deceased, the will was registered. Thus, so far as the registration of the will is concerned, it is the deposition of Sitaram Chavan which is relevant. So far as the cross-examination of Sitaram Chavan is concerned, we do not find any cross-examination on the aspect of registration of the will. On the document of the will, there is an endorsement made by the registering officer to the effect that he put it to the testator whether the will has been written as per his instructions and that the testator admitted that. There are no suspicious circumstances brought on record in so far as registration of 1975 will is concerned. Therefore, if there are no suspicious circumstances brought on record in relation to the registration of the will, then in view of the law laid down by the Supreme Court in its judgment in the case of Rani Purnima Debi referred to above, in our opinion, there can be no doubt about the genuineness of the 1975 will. We find that neither the Trial Court nor the learned Single Judge examined the evidence from this point of view. Neither the Trial Court nor the learned Single Judge considered the fact that the 1975 will is a registered will. In our opinion, considering that the 1975 will is a registered will and there are no suspicious circumstances about the registration of the will brought on record, there could not have been any doubt raised about the genuineness of the will. It appears from the judgment of the Trial Court that the Trial Court was much impressed by one circumstance in holding that the 1975 will is not a genuine will and that circumstance is that according to the Trial Court, in 1975 the age of the deceased was 95 years. However, we find that there is no evidence on record in support of that finding except that in the death certificate, the age of the deceased is mentioned as 95 years. However, we find that there is no evidence on record in support of that finding except that in the death certificate, the age of the deceased is mentioned as 95 years. We find that a suggestion was given in cross-examination to Sitaram Chavan that the age of the deceased in 1975 was 90 to 95 years, that suggestion was denied by him and he asserted that the deceased was 74 to 75 years of age. In our opinion, for determining what was the age of the deceased in 1975, there is documentary evidence on record and it is the 1972 will. That will has been held genuine even by the Trial Court and the Trial Court has in fact referred to the judgment of the Trial Court holding that the 1972 will is genuine. In that will, the deceased has mentioned his age as 70 years and in the 1975 will, the deceased has mentioned his age as 74 years. Thus, except the death certificate where the age of the deceased is mentioned as 95 years, there is no documentary evidence on record to show that the age of the deceased was 95 years. The Trial Court did not hold inquiry into the question as to what was the age of the deceased in 1975 and recorded a finding that he was 95 years of age in 1975 and therefore, according to the Trial Court, he was not of sound and disposing mind. 7. So far as the mental health of the deceased in the year 1975 is concerned, though it was the defence of the opponents that he was not of sound and disposing mind in 1975, they have not led any medical evidence to show what was the mental condition of the deceased in the year 1975 and therefore in our opinion, in the absence of any evidence on record to show that the mental condition of the deceased in 1975 was such that it cannot be said that he was in sound and disposing mind. In our opinion, the fact that the 1975 will is a registered will and there are no suspicious circumstances brought on record in relation to the fact of registration, the Trial Court could not have declined to grant letters of administration in relation to the 1975 will also. In our opinion, the fact that the 1975 will is a registered will and there are no suspicious circumstances brought on record in relation to the fact of registration, the Trial Court could not have declined to grant letters of administration in relation to the 1975 will also. In our opinion, therefore, the judgment of the Trial Court as also the judgment of the learned Single Judge will have to be set aside. In our opinion, therefore, following order would meet the ends of justice. 8. Letters patent appeal No.161 of 2001 is dismissed with no order as to costs. Letters patent appeal No.162 of 2001 is allowed. The judgment of the Joint Civil Judge, Senior Division, Sangli in miscellaneous application No.151 of 1976 and the judgment of the learned Single Judge in first appeal No.353 of 1983 dated 8th February 2000 are setide. Miscellaneous application No.151 of 1976 is granted. The Joint Civil Judge, Senior Division, Sangli is directed to issue letters of administration as prayed for in respect of will dated 6th February 1975 on payment of requisite court fees. Both the letters patent appeals are disposed off. No costs. Parties to act on the copy of this order duly authenticated by the Sheristedar / Private Secretary of the Court. Certified copy expedited. At this stage, the learned counsel appearing for appellants has made a request for stay of operation of this order. No useful purpose will be served by staying operation of the order. The request is rejected. Ordered Accordingly