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2010 DIGILAW 1052 (BOM)

Prabhakar Dadaji Dame v. Sharad s/o. Janrao Dame

2010-07-27

A.P.BHANGALE

body2010
JUDGMENT:- This appeal is directed against the judgment and order dated 22.4.1998 passed in Regular Civil Appeal No.1 29/1995 by learned 2nd Additional District Judge, Wardha, who confirmed the judgment and order passed by the trial Court, except to the extent of awarding compensatory cost to the original defendant. The order granting compensatory costs was set aside. In the trial Court, learned Civil Judge, Jr. On., Wardha had dismissed the Regular Civil Suit No.113/1993 awarding compensatory cost of Rs.500/- payable to the defendants. 2. Facts briefly are: The plaintiff had instituted the suit for possession based on title to the suit property i.e. Plot No.27 admeasuring 40' x 20' situated at Takli Tal. & Dist. Wardha. The suit plot was owned by father of the plaintiff and bequeathed in his favour under Will dated 26.3.1981. The defendant who is not concerned with the plot started storing /keeping firewood in the suit plot, which the plaintiff objected. On 5.5.1993, the defendant dug a pit with a view to construct a shed. The plaintiff complained to the Gram Panchayat, Takli, which issued notice dated 27.2.1993 to the defendant to remove the tinshed. On 7.5.1993 an experte injunction was granted against the defendant but the defendant has forcibly dispossessed the plaintiff of the portion 40' x 20' out of the suit plot. 3. The defendant had resisted the suit by denial of contentions in the plaint and claimed that defendant owns plot admeasuring 40' NS x 20' W. since his forefathers and alleged that the plaintiff in connivance with Sarpanch is trying to grab the property of the defendant. 4. The trial Court disbelieved the case of the plaintiff and found that the plaintiff had failed to prove that he acquired title to the suit plot under Will deed dated 26.3.1981, purportedly executed by his father in his favour. The trial Court found that the suit is false and vexatious and awarded compensatory cost of Rs.500/- payable to the defendant. The first appellate Court, however, felt that compensatory cost ought not to have been awarded in the facts and circumstances of the case, while confirming rest of the judgment and order passed by the trial Court. 5. The trial Court found that the suit is false and vexatious and awarded compensatory cost of Rs.500/- payable to the defendant. The first appellate Court, however, felt that compensatory cost ought not to have been awarded in the facts and circumstances of the case, while confirming rest of the judgment and order passed by the trial Court. 5. The appeal was admitted on 8.9.21998 on following substantial question of law: "Whether the Courts below were right in holding that the plaintiff has not proved the Will on the ground that the attesting witness has said that the testator did not sign the Will in their presence when the deposition of the attesting witness clearly shows that he has categorically made a statement that the Will was signed by the testator in his presence and he has specifically denied a suggestion that it was not signed in his presence?" 6. I have heard submissions advanced on behalfofthe parties. 7. The plaintiff had claimed that the suit plot was allotted to his father by an order of Tahsildar in 1954-55 far rehabilitation of flood-affected persons and his father had on 26.3.1981 bequeathed it in his favour. The only attesting witness examined by the plaintiff, however, admitted that he does not know the contents of the document Exh.41; as also does not know name of the scribe. There was no any evidence about ownership of the father of the plaintiff so as to bequeath the suit plot. The plaintiff had miserably failed to prove his title to the suit plot. 8. Learned Advocate for respondent made reference to the running in Niranjan Umeshchandra Joshi Vs. Mrudula Jyoti Rao and others, (2006)13 SCC 433 : [2007 ALL SCR 530], to argue that if there are suspicious circumstances surrounding execution of Will and genuineness of the Will it has to be considered as null and void. In the ruling cited it appears that the probate was refused for the alleged Will as there were several suspicious circumstances surrounding execution of Will. The testator was in Hospital in ICU and within 24 hours of his admission in ICU a power-of attorney and Will in favour of his second son was drafted, which bequeathed entire legacy of the deceased absolutely in favour of propounder of the Will. The testator was in Hospital in ICU and within 24 hours of his admission in ICU a power-of attorney and Will in favour of his second son was drafted, which bequeathed entire legacy of the deceased absolutely in favour of propounder of the Will. The Will along with two schedules drafted meticulously although testator had no documents with him in the small cubicle of hospital. The Doctor attending the patient was not examined, who could have stated about state of mind of the testator at the time of execution of the Will. The manner in which death certificate was granted was also suspicious. Under these circumstances, the Apex Court had refused to interfere with the order of the High Court refusing probate for the Will. 9. In order to prove a Will, it was necessary for the plaintiff to prove first that his Father owned the suit plot and was competent to bequeath the same and Furthermore in view of Section 63 of the Indian Succession Act, at least, one attesting witness must be examined to prove who depose about having seen the testator present and signing the Will. The witness examined in the present case did not know about the scribe as well as contents of the document. Second attesting witness was not examined. For these reasons, it cannot be said that conclusion of the courts below were either erroneous or contrary to law. The findings and conclusion of facts were concurrent to order dismissal of suit and were based on evidence. Hence no infirmity whatsoever can be Found. The substantial question of law stated has to be answered accordingly against the appellant. 10. In the result, the Appeal being sans merit, deserve dismissal, which I direct. Appeal dismissed.