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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.109 OF 2015
APPELLANT:
(Ori. Defendants)
1. Smt. Madankuwar wd/o Rekhchandji
Parakh, aged about 96 years, Occ.
Household, r/o Dhanraj Plaza, Main
Road, Chandrapur.
2. Smt. Shardkuwar wd/o Pannalaji
Talera, aged about 78 years, Occ.
Household, r/o Pawan Building, Ekori
ward, Chandrapur.
3. Smt. Shantakuwar wd/o Gulabchandji
Shishodiya, aged about 74 years, Occ.
Household, r/o Bogulkanta, Hyderabad
(Telangana) A.P.
VERSUSRESPONDENTS:
(Ori. Plaintiff)
1. Smt. Sushila w/o Gyanchand Katariya,
Aged about 67 years, Occ. Household,
r/o Near Bank of India, Main road,
Chandrapur.
(Ori. Deft. No.4) 2. Shri Deepakkumar S/o Rekhchandji
Parakh, aged about 49 years, Occ.
Business, R/o Dhanraj Plaza, Main
Road, Chandrapur.
Mr. K. H. Deshpande, Senior Advocate with Mr. Akshay Sudame,
Advocate for the appellants.
Mr. Anil Mardikar, Senior Advocate with Mr. S. Tapadia, Advocate
for the respondent no.1.
Mr. V. R. Choudhari, Advocate for the respondent no.2.
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CORAM: A.S. CHANDURKAR, J.
DATE ON WHICH SUBMISSIONS WERE HEARD: 03082017
DATE ON WHICH JUDGMENT IS PRONOUNCED: 24082017
ORAL JUDGMENT :
1. This appeal filed under Section 100 of the Code of
Civil Procedure, 1908 is at the instance of the original defendant
nos.1 to 3 who are aggrieved by the judgment and decree passed
by the first appellate Court decreeing the suit for partition and
separate possession filed by the respondent no.1.
2. Facts found necessary for deciding this appeal are
stated thus:
3. One Jethmalji Parakh was married to Smt. Hirabai.
Said Jethmalji died in November, 1956. Thereafter, his stepson
Rekhchand and Hirabai constituted joint Hindu family possessing
various properties. Rekhchandji was married to one Madan Kuwar
– defendant no.1. They had three daughters namely the plaintiff
and the defendant nos.2 and 3. The defendant no.4 was taken in
adoption as son of late Rekhchandji. According to the plaintiff,
Hirabai had executed a will in her favour on 18101981. Said
Hirabai also executed a lease deed in favour of the plaintiff on
3071982. Though the defendant nos.1 to 3 sought to rely upon a
partition that took place on 911983, this partition was denied by
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the plaintiff. On that basis, the plaintiff filed suit for partition and
separate possession of various properties as described in the
Schedule to the plaint.
4. The defendant nos.1 to 4 filed their written statement
and admitted the relationship between the parties. It was denied
that Hirabai had executed any will in favour of the plaintiff on
18101981. They relied upon an oral partition that took place on
31121982 which was later on reduced to writing on 911983.
According to the defendants, this partition was acted upon by all
the parties including the plaintiff. The defendants relied upon will
dated 2651983 executed by Hirabai and according to them, the
earlier will dated 18101981 could not be acted upon. It was thus,
prayed that the suit be dismissed.
5. After the parties led evidence, the trial Court held that
the plaintiff had failed to prove that Hirabai had executed a will in
her favour on 18101981. The partition dated 911983 was also
held to be not proved by the defendant nos.1 to 4. The subsequent
will dated 2651983 was also not accepted. The suit accordingly
came to be dismissed.
The first appellate Court in the appeal filed by the
plaintiff confirmed the finding that the plaintiff had failed to prove
the execution of will dated 18101981. Similarly, the finding that
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the defendant nos.1 to 3 had failed to prove the Will dated
2651983 was affirmed. The first appellate Court, however,
granted the alternate prayer and held the plaintiff as well as the
defendant nos.1 to 3 entitled to 1/4th share each by virtue of the
decree for partition.
6. The defendant nos.1 to 3 being aggrieved by this
adjudication have preferred the present second appeal. The
plaintiff being aggrieved by the finding recorded with regard to the
will dated 18101981 and the family settlement dated 20111982
has also filed cross objections.
7. This Court on 442016 allowed the second appeal and
dismissed the cross objections. After setting aside the judgment of
the appellate Court, the judgment of the trial Court was restored.
This judgment in the second appeal was then challenged by the
original plaintiff before the Hon’ble Supreme Court. Civil Appeal
Nos.2568/2017 and 2569/2015 were disposed of on 1022017.
It was found that this Court while deciding the second appeal had
reframed the substantial questions of law that had been originally
framed while admitting the appeal. It was held that the procedure
as laid down by provisions of Section 100(5) of the Code of Civil
Procedure, 1908 (for short, the Code) while reframing said
substantial questions of law had not been followed. On that
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ground, the judgment of this Court was set aside and the
proceedings were remitted for reconsideration in accordance with
law. It was observed that the appeal be decided within two or
three months. In view of aforesaid order, the appeal was taken up
for hearing.
8. After hearing the learned Counsel for the appellants
and the respondents the following substantial questions of law
were framed on 2772017:
(1) Whether the findings of fact recorded by both
the Courts below for rejecting the Will
(Exh.202) dated 28th October, 1981, projected
by the plaintiff are perverse?
(2) Whether the plaintiff having accepted,
admitted and acted upon the Family Settlement
dated 20th November, 1982 (Exh.244) would
be estopped by conduct in setting up a
challenge to the same Family Settlement as not
receivable in evidence for want of registration?
(3) Whether the plaintiff did not receive any share
from the share of Hirabai under the Family
Settlement dated 20th November, 1982 (Exh.
244) and consequently whether she was
entitled to claim partition in the undivided
estate of Hirabai?
(4) Whether the Family Settlement dated 20th
November, 1982 (Exh.244) and oral partition
reduced to Memorandum Fard dated 9th
January, 1983 (Exh.243) require compulsory
registration under Section 17 of the
Registration Act?
9. I have heard Shri K. H. Deshpande, learned Senior
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Advocate with Mr. A. M. Sudame, learned Advocate for the
appellants and Shri Anil Mardikar, learned Senior Advocate with
Mr. S. Tapadia for the respondent no.1. Shri V. R. Choudhari,
learned Advocate appeared for the respondent no.2.
10. Shri K. H. Deshpande, learned Senior Counsel for the
appellants – defendant nos.1 to 3 made the following submissions:
(a) Both the Courts were justified in holding the will dated
18101981 Exhibit202 to be not duly proved. According to him,
there were various suspicious circumstances on record which
supported the aforesaid conclusion. It was submitted that though
it was claimed that this will was executed on 18101981, it was
not at all referred to in the earlier suit that was filed by the present
plaintiff. Regular Civil Suit No.238/1984 was filed by the plaintiff
against some of the present defendants on 1381984 seeking
mandatory and perpetual injunction with regard to the suit
properties by relying upon the family settlement dated
20111982. Existence of said will was not pleaded in that suit.
Similarly, there was also no reference to the said will in the lease
deed dated 3171982 (Exhibit214) as well as in the family
arrangement dated 22111982 (Exhibit244) as well as the
partition deed dated 911983 (Exhibit243). It was then
submitted that the manner in which the said will was executed
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coupled with the active participation of the plaintiff’s husband
therein also cast a doubt on its execution. Said will saw the light of
the day only in the year 1987 when the present suit was filed on
13111987. The thumb impression of the executant Hirabai was
also not duly proved and therefore these findings which were
findings of fact recorded by both the Courts could not be termed to
be perverse. According to the learned Senior Counsel, this finding
therefore did not require any interference.
(b) The plaintiff having accepted and acted upon the
family settlement dated 20111982 (Exhibit244) was estopped by
her conduct from challenging this settlement on the ground that it
was not registered. Referring to the pleadings of the present
plaintiff in Regular Civil Suit No.238/1984, it was submitted that
the family arrangement dated 20111982 as well as the partition
deed dated 911983 were relied upon by the said plaintiff. The
family arrangement dated 20111982 was in fact scribed by the
plaintiff's husband Shri Gyanchand Kataria. It was prepared with
the consultation of all family members. Referring to the judgment
in Regular Civil Appeal No.2 of 2001 that was filed by the present
plaintiff challenging dismissal of Regular Civil Suit No.238/1984,
it was submitted that the appellate Court in para 7 of its judgment
had recorded a finding that said family arrangement dated
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20111982 did not require registration and was admissible in
evidence. As the family settlement dated 20111982 merely
recorded what was already agreed, said document did not require
registration. On the aspect of estoppel on account of conduct in
accepting such family arrangement, the learned Senior Counsel
placed reliance on the decisions in Kale and others Vs. Dy. Director
of Consolidation (1976) 3 SCC 119 and in P. N. Wankudre vs. C. S.
Wankudre AIR 2002 Bombay 129. It was thus submitted that
having accepted and acted upon the said family settlement, the
plaintiff was estopped from laying a challenge to the same.
(c) The plaintiff having received share from the estate of
Hirabai under the family settlement dated 20111982, she was
not entitled to claim partition in the undivided estate of Hirabai.
The plaintiff had accepted the family settlement as well as the
partition and had also acted upon the same. No grievance in that
regard was made by her in the earlier suit. Having accepted said
arrangement, she was precluded from again demanding partition
from the share of Hirabai.
(d) The family settlement dated 20111982 as well as
partition deed dated 911983 were not required to be registered
as they did not create any right in immoveable property for the
first time. These documents merely recognized the preexisting
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rights of the parties and they did not by themselves transfer any
right or property. Referring to the pleadings in the earlier suit, it
was contended that the plaintiff had in fact admitted the family
settlement and partition and therefore, it was not at all necessary
to again prove the same. The averments in the plaint in Regular
Civil Suit No.238/1984 as well as documents filed in that suit were
not at all considered by the appellate Court. Reference was also
made to the adjudication in Regular Civil Appeal No.2/2001 in
that regard. In any event, it was submitted that the proviso to
Section 49 of the Indian Registration Act, 1908 could be taken into
consideration to hold that there was severance of the joint family.
In that regard, reliance was placed on the decisions in Roshan
Singh and Others Vs. Zile Singh and others AIR 1988 SC 881.
It was thus, submitted that for aforesaid reasons, the
judgment of the first appellate Court was liable to be set aside and
the judgment of the trial Court dismissing the suit ought to be
restored.
11. Per contra, Shri Anil Mardikar, learned Senior
Advocate for the respondent no.1 – plaintiff opposed aforesaid
submissions by contending as under:
(a) The will dated 18101981 (Exhibit202)was the last
will that was duly executed by Hirabai bequeathing her properties
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in favour of the plaintiff. It was submitted that execution of this
will was not denied and in paragraph 4 of the written statement
it was merely pleaded that the executant was not in good health or
sound mind. No suspicious circumstances were pleaded for
denying the validity of the aforesaid will. The will at Exhibit404
also executed by Hirabai was undated, but it was prepared prior to
the will at Exhibit202. Reference was made to the letter at
Exhibit198 to point out the nature of relations Hirabai had with
other family members and it was on that basis that they had been
excluded from being granted any share as per that will. The thumb
impression of Hirabai on the said will had been duly proved and
on account of death of the attesting witness Dr. Dave, his son was
examined under Section 69 of the Indian Evidence Act. The
husband of the plaintiff was in the office of the District
Government Pleader in the year 198384 which was subsequent to
the execution of said will on 18101981. The circumstances relied
upon for discarding said will could hardly be termed as suspicious.
The typewriter was brought merely to facilitate preparation of the
will and the contents of that will were prepared as per the
directions of Hirabai. The contents were then read over and
explained to Hirabai who had put her thumb impression on the
same. According to the learned Senior Counsel as the property that
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was the subject matter of the earlier suit being Regular Civil Suit
No.238/1984 was different from the property bequeathed under
the will at Exhibit202, there was no reference made to the same
in the earlier suit. Similarly, the lease at Exhibit214 was to
operate during the life time of Hirabai and hence, there was no
reason to refer to it in the said will. Exhibit232 being a photo
copy of the will at Exhibit202 and the thumb impressions of
Hirabai having been obtained separately, there was bound to be
some difference in that regard. Hirabai was in good physical and
mental condition as was deposed by DW1. Failure on the part of
PW2 in identifying the photograph of Hirabai was also not a
suspicious circumstance inasmuch as the will having been
executed in the year 1981 and said witness having deposed after
almost twenty years, there was bound to be some difficulty in
identifying the executor of the will. In any event neither were the
negatives of the photographs placed on record nor was any
photographer examined. As the plaintiff was already in possession
of the suit property as a lessee pursuant to the lease deed at
Exhibit214, there was no occasion for the plaintiff to refer to the
said will at any earlier point of time. It was only on account of the
dispute being raised by the defendants that the plaintiff was
required to file the suit by referring to the said will in the year
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1987. It was thus submitted that the will was duly proved in the
light of provisions of Sections 61 and 63 as well as Section 69 of
the Indian Evidence Act and therefore both the Courts recorded a
perverse finding while discarding said will. In that regard the
learned Senior Counsel placed reliance on the following
judgments:
(1) Madhukar D. Shende vs. Tarabai Aba Shedage (2002)
2 SCC 85.
(2) Leela Rajagopal and Ors. v. Kamala Menon Cocharan
and Ors. AIR 2015 SC 107.
(3) Rajgopal vs. Kishan Gopal and anr AIR 2003 SC 4319.
(4) Surendra Pal and others v. Dr. (Mrs.) Saraswati Arora
and anr. AIR 1974 SC 1999.
(5) Mahesh Kumar V Vinod Kumar and ors. AIR 2012 SCW
2347.
(6) Naresh Charan Das Gupta v. Paresh Charan Das Gupta
and anr. AIR 1955 SC 363.
(7) Laxman Ganpati Khot and others v. Anusuyabai and
anr. AIR 1976 Bom. 264.
(8) Ramdas Bhatu vs. Anant Chunilal 2006 (6) Mh.L.J.
571.
(b) In addition to the aforesaid, the learned Senior
Counsel referred to the observations in paragraph 17 of the
judgment of the appellate Court to the effect that the plaintiff had
failed to refer the will at Exhibit202 to the Finger Print Expert for
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verifying the thumb impression of Hirabai. For said purpose he
referred to Civil Application Nos.293/2017 that was filed on behalf
of the original plaintiff seeking permission to file additional
documents in the form of the opinion of the Finger Print Expert.
Alternatively, it was prayed that the thumb impression on Exhibit
202 be directed to be examined by the Thumb Impression Expert.
According to the learned Senior Counsel before the trial Court
there was no serious dispute raised with regard to the thumb
impression of Hirabai and hence, the plaintiff did not feel
it necessary to make such application before the trial Court. As the
first appellate Court had taken into consideration absence of any
evidence being led with regard to the said thumb impression and
had treated the same as a suspicious circumstance, this
application was moved by relying upon the provisions of Order XLI
Rule 27 of the Code. If such evidence was permitted to be brought
on record, the same would enable the Court to adjudicate this
question in a better manner.
(c) It could not be said that the plaintiff had accepted,
admitted and acted upon the family settlement dated 20111982.
Hence, there was no question of she being estopped by conduct in
challenging the same. Referring to various clauses of this family
settlement, it was submitted that the property therein was that of
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Rekhchand. Hirabai's property remained with her which could be
gathered from the documents at Exhibit216, 221 and 222.
Referring to the judgment of the appellate Court in Regular Civil
Appeal No.2 of 2001 that arose out of the earlier suit filed by the
plaintiff, it was submitted that the family arrangement was on
record of those proceedings and it was held therein that the
property of Rekhchand was the subject matter of that suit. As no
relief was sought with regard to said properties, there was no
question of any estoppel operating. As 1/8th share was given to
the plaintiff in the said family arrangement, it was clear that the
property of Rekhchand was its subject matter. This arrangement
also took place during the life time of Hirabai who was shown as
party no.3 therein. As the plaintiff did not receive any share in the
property of Hirabai, she was entitled to seek partition from her
undivided estate. Reference was made to the judgment of the
Hon'ble Supreme Court in Seethalakshmi Ammal v.
Muthuvenkatarama AIR 1998 SC 1692 in that regard.
(d) That the trial Court while answering issue no.5 had
held that the defendants had failed to prove the partition dated
911983 between them and Hirabai. Though the said defendants
as respondents in Regular Civil Appeal No.60/2012 had filed
application below Exhibit 22 for challenging these findings, the
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appellate Court by order dated 1612014 had rejected the said
application filed under provisions of Order XLI Rule 22 of the
Code. It was therefore not permissible for the said defendants to
challenge said findings of the trial Court. It was however fairly
submitted by the learned Senior Counsel that the findings recorded
in paragraph 7 of the judgment of the appellate Court in Regular
Civil Appeal No.2/2001 that the family settlement dated 911983
being a document of family arrangement was not compulsorily
registrable and therefore, admissible in evidence had become final.
It was, therefore, submitted that in the light of the
cross objections filed by the plaintiff, the will dated 18101981
(Exhibit202) deserves to be accepted. However, if that will was
held to be not validly proved, the plaintiff would be entitled to rely
upon the family settlement dated 20111982 (Exhibit244) for
claiming a share in the joint family property.
12. Shri V. R. Choudhari, learned Counsel appearing for
respondent no.2 who was the original defendant no.4 adopted the
arguments of learned Senior Counsel for the appellants –
defendant nos.1 to 3.
13. In reply to the aforesaid arguments, Shri K. H.
Deshpande, learned Senior Advocate submitted that there were no
pleadings on behalf of the plaintiff that the undated will at Exhibit
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404 was executed prior to the will at Exhibit202. As the
document of family arrangement dated 20111982 was scribed by
the plaintiff's husband, a reference to the will dated 18101981
was necessary. Absence of such mention indicated that the
plaintiff was satisfied with what she had received. Hirabai being a
party to the partition deed at Exhibit243, it could not be said by
the plaintiff that Hirabai had disowned this document. Once the
will dated 18101981 was discarded, this document become
relevant. Relying upon the decision in Union of India vs. Ibrahim
Uddin and another (2012) 8 SCC 148 it was submitted that no case
for leading additional evidence was made out by the plaintiff.
14. I have heard the learned Counsel for the parties at
length and with their able assistance, I have also perused the
records of the case.
AS TO SUBSTANTIAL QUESTION OF LAW NO.1:
15. This substantial question of law pertains to the validity
of the will dated 28101981 (Exhibit202). According to the
plaintiff, this will was executed by Hirabai and her property was
bequeathed in favour of the plaintiff. It was pleaded that this will
was executed when Hirabai was in good health and in sound mind.
As the defendants were selling some of the properties that were
bequeathed to the plaintiff, it became necessary to file the present
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proceedings. In the written statement filed on behalf of the
defendant nos.1 to 4, it was denied that Hirabai in good health
and sound mind and that she had executed a last will dated
18101981. It was pleaded that the properties sought to be sold
were within their own rights and the plaintiff had no concern with
the same. It was pleaded that the alleged will was false and
fabricated. The defendants then relied upon a subsequent will
dated 2651983 executed by Hirabai and thus contended that the
will dated 18101981 was a false and fabricated document.
Both the Courts have after considering the evidence on
record referred to various suspicious circumstances for not
accepting the claim of the plaintiff based on the will dated
18101981. It has been found that though it was claimed that
such will was executed on 18101981, it found no reference in the
documents prepared subsequently being the lease deed dated 30
71982 (Exhibit214), family arrangement dated 20111982
(Exhibit244) and the partition deed dated 911983 (Exhibit
243). It was then found that the will had been got typed by
bringing a typewriter at the place of its preparation. It was scribed
in Hindi while Hirabai was illiterate and could neither read nor
write Hindi. The presence of PW2 – Shaineshchandra was found
to be a bit unnatural as he was not well acquainted with Hirabai.
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Said PW2 also could not identify the photograph of Hirabai when
he was confronted with the same in his crossexamination. The
appellate Court further observed that the plaintiff did not take any
steps to have the thumb impression of Hirabai examined by an
expert.
16. On behalf of the plaintiff, Civil Application No.293/
2017 has been moved seeking permission to file on record a copy
of the opinion of an Hand Writing expert. An alternate prayer is
also made to have the thumb impression of Hirabai examined by
an expert. This application is purportedly under provisions of
Order XLI Rule 27 of the Code. According to the plaintiff, the
defendants had not seriously disputed that the thumb impression
on the will dated 18101981 was that of Hirabai. In view thereof,
this application was not moved before the first appellate Court nor
was it found necessary by the plaintiff to have the opinion of such
expert before the trial Court. For showing her bonafides, the
plaintiff intended to dispel all doubts about the will bearing the
thumb impression of Hirabai and hence, this application was
moved.
According to the defendants, the plaintiff had not
satisfied the ingredients of Order XLI Rule 27 of the Code and that
the application was moved for delaying the proceedings.
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17. On hearing the learned Counsel in that regard, I find
that this application moved by the plaintiff does not deserve to be
allowed. The plaintiff being the propounder of the will dated
18101981, it was for her to remove all circumstances that could
cast a doubt on the execution of the will. In the written statement,
it had been denied that such will was executed by Hirabai. The
reasons furnished for not obtaining the opinion of Thumb
Impression expert either before the trial Court or first appellate
Court do not appear to be convincing. The ingredients for
permitting the plaintiff to rely upon the additional evidence under
provisions of Order XLI Rule 27 of the Code also are not satisfied.
On considering the entire evidence on record, I do not find the
necessity to rely upon such additional evidence for a proper
adjudication of the appeal. After considering the law laid down in
Ibrahim Uddin and another (supra) I find that the prayer made in
the application for relying upon the opinion of the Thumb
Impression expert dated 932017 as well as the alternate prayer
for obtaining such opinion does not deserve to be granted.
Accordingly, said application stands rejected.
18. It is necessary to briefly refer to the suspicious
circumstances that have been taken into consideration by both the
Courts. An important circumstance that has gone unexplained is
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the absence of any reference to the will dated 19101981 in the
lease deed dated 3071982, family arrangement dated
20111982 and the deed of partition dated 911983. Besides
these documents, Regular Civil Suit No.238/1984 had been filed
by the present plaintiff seeking the relief of removal of
encroachment along with a prayer for perpetual injunction. This
relief was sought with regard to the properties referred to in the
Schedule of the plaint. Reference in that plaint was made to the
family arrangement dated 20111982 as well as the partition
dated 911983. However, there was no reference made in that
plaint to the will dated 18101981. Be it noted that Hirabai was a
party to all these documents and it would have been natural for
her to have referred to the will executed by her on 18101981 in
the documents executed subsequently. There is no justifiable
reason for the absence of any reference to the will in the aforesaid
documents. Moreover, by executing said will as alleged, rights had
been conferred on the plaintiff by Hirabai. In such situation, if the
will was already executed on 18101981 then there was no reason
for executing lease dated 3071982 again by Hirabai in favour of
the plaintiff with regard to the same property. Said lease was for a
period of sixty years and Hirabai was aged about 75 years when
the lease deed was executed. The reason furnished that the lease
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was executed to enable Hirabai to receive lease amount does not
appear to be very convincing.
The aforesaid aspects are clearly evident from the
record and absence of reference to the execution of the will in the
subsequent documents dealing with the right in said properties to
which the executant was the party does not appear to be very
natural.
19. The will at Exhibit202 has been type written in Hindi.
It has come on record that Hirabai was illiterate and was speaking
Marwadi language. PW2 in his deposition has further admitted
that the portion marked 'D' was not narrated by Hirabai when the
rough notes were being taken by him. The exclusion of other
relatives including defendant nos.1 to 3 which is sought to be
justified on account of strained relations by referring to the letter
at Exhibit198 also does not appear very convincing. This letter at
Exhibit198 is dated 1931977 written by the defendant no.1 to
the plaintiff. Similarly, the thumb impression of Hirabai appears
only on the first and third page of the will. Absence of the thumb
impression on the second page of the will is sought to be explained
by stating that as the thumb impression was put on the first and
third page, its absence on the second page was not very material.
Further the description of the property sought to be bequeathed
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has not been mentioned in the said will and it is stated in general
terms that all properties in which Hirabai had a right stood
bequeathed. Though it is true that the photographs with which
PW2 was confronted were not duly proved as required in view of
the law laid down in Laxman Ganpati Khot and Ramdas Bhatu
Chaudhary (supra), that aspect by itself would not assist the case
of the plaintiff.
20. I find that both the Courts on consideration of the
entire evidence on record have found that there were various
suspicious circumstances surrounding the alleged execution of will
dated 18101981. The plaintiff has been found to have been
unable to remove those suspicious circumstances by leading cogent
evidence. The plaintiff as propounder of the will failed to prove its
execution in a manner that would warrant its acceptance as the
last will of Hirabai. As held in Dhannulal vs. Ganeshram (2015) 12
SCC 301, proof of a will stands on a higher degree in comparison
with other documents. On a consideration of the cumulative
effective of the entire material on record and after scrutinizing the
same in the light of the ratio of the decisions cited by both parties,
I do not find any reason to disregard the findings concurrently
recorded by both the Courts as regards invalidity of will dated 18
101981. The appreciation of evidence in that regard cannot be
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said to be perverse nor can it be said that such conclusion arrived
at by both the Courts was an impossible conclusion not warranted
by the evidence on record. Substantial question of law No.1 is
answered by holding that the rejection of the will dated
18101981 projected by the plaintiff is not a perverse conclusion.
AS TO SUBSTANTIAL QUESTION OF LAW NOS.2 & 4:
21. On 20111982 a family arrangement at Exhibit244
was entered into between the parties. The need for this family
arrangement was felt on account of the death of the husband of
the defendant no.1 as well as aunt of the husband of defendant
no.1. The joint property of the Hindu undivided family had not
been partitioned after the death of Rekhchand, husband of
defendant no.1. The defendant no.1 intended that a male child be
adopted to continue the family tree. Hence, with a view to avoid
any dispute pursuant to such adoption, it was resolved to make an
arrangement of the family properties before hand. The plaintiff
who had 1/8th share in the joint family property was given various
properties in lieu of that share. Hirabai had consented for
adoption of a male child and on that count also she gave some
properties from her half share to the plaintiff. In lieu thereof the
defendant nos.1 to 3 each agreed to pay Hirabai Rs.100/ per
month. On receiving various properties in the family arrangement,
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the plaintiff no.1 relinquished all her rights over the other
properties of the joint family. The plaintiff, defendant nos.1 to 3 as
well as Hirabai were signatories to this family arrangement that
was scribed by the husband of the plaintiff.
On 31121982, there was an oral partition between
Hirabai and defendant nos.1 to 3. This oral partition was then
scribed on 911983 (Exhibit243). In this document a reference
has been made to the family arrangement dated 20111982 and
the rights given to the plaintiff therein. Excluding those properties
in which the plaintiff had been given her rights, Hirabai and the
defendant nos.1 to 3 partitioned the remaining properties.
22. The plaintiff on 1681984 filed Regular Civil Suit
No.238/1984 pleading that on 20111982 she was given certain
properties exclusively. The said suit was filed against present
defendant no.1 and defendant no.4 praying that they be directed
to remove encroachment in the properties to which the plaintiff
had an absolute right. It is pertinent to note that in the plaint of
that suit at Exhibit203 there is a clear reference to the family
arrangement dated 20111982 with further pleading that the
plaintiff had become the absolute owner of those properties by
virtue of said family arrangement. This document of family
arrangement as well as copy of the partition deed dated 911983
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were filed on record along with the plaint. The averments of the
plaintiff in that suit, therefore, clearly indicate that the plaintiff
had accepted, admitted and acted upon the family settlement at
Exhibit244 as well as memorandum of partition dated 911983.
In that view of the matter, it was open for the defendants to
canvass that the findings recorded against issue no.5 by the trial
Court were incorrect. In any event, the appellate Court while
rejecting application below Exhibit 22 had observed that said
grounds could be argued in the appeal.
23. The aspect of estoppel in the matter of accepting a
family arrangement and subsequently trying to resile from the
same has been considered in Kale and others (supra) by the
Hon'ble Supreme Court. The following observations in said
decision apply to the case in hand:
“9. By virtue of a family settlement or
arrangement members of a family descending
from a common ancestor or a near relation seek to
sink their differences and disputes, settle and
resolve their confrlicting claims or disputed titles
once for all in order to buy peace of mind and
bring about complete harmony and good will in
the family. The family arrangements are governed
by a special equity peculiar to themselves and
would be enforced if honestly made.
The object of the arrangement is to
protect the family from longdrawn litigation or
perpetual strifes which mar the unity and
solidarity of the family and create hatred and bad
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blood between the various members of the family.
The Courts have, therefore, leaned in
favour of upholding a family arrangement instead
of disturbing the same on technical or trivial
grounds. Where the Courts find that the family
arrangement suffers from a legal lacuna or a
formal defect the rule of estoppel is pressed into
service and is applied to shut out plea of the
person who being a party to family arrangement
seeks to unsettle a settled dispute and claims to
revoke the family arrangement under which he
has himself enjoyed some material benefits.”
24. The evidence on record indicates that initially on
20111982, the family members before the adoption of defendant
no.4 gave share of the joint family property to the plaintiff. The
remaining property was then partitioned between the defendant
nos.1 to 3. In other words, those properties that were not allotted
to the plaintiff as per Exhibit244 were subsequently divided
between other family members as per Exhibit243. The plaintiff
enjoyed the properties received by her as per Exhibit244 and
made no grievance in that regard till the year 1987 when she came
up with her stand that by virtue of will dated 18101981, she was
the owner of the suit property. Absence of any grievance
immediately after the family arrangement was scribed by her
husband and which was signed by the plaintiff is a factor that
cannot be ignored. The aforesaid conduct of the plaintiff clearly
estops her from contending that both these documents did not
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deserve to be taken into consideration for want of registration.
Moreover, in Regular Civil Appeal No.2/2001 that arose out of
dismissal of Regular Civil Appeal No.238/1984, the learned 2nd
Additional Sessions Judge, Chandrapur while considering the
family arrangement dated 20111982 has in paragraph seven of
the judgment recorded a finding that said document was not
compulsorily registrable and therefore admissible in evidence.
This finding has attained finality in the proceedings to which the
present plaintiff and the defendant nos.1 and 4 are party.
Similarly, on a plain reading of the memorandum of partition at
Exhibit243, it can be found that it refers to the oral partition that
had taken place on 31121982 between the defendant nos.1 to 3
and Hirabai. It was only scribed on 911983. As observed in
Roshansingh (supra), the subsequent list of properties prepared
pursuant to earlier agreement of partition does not require any
registration. The first appellate Court committed an error when
it held that the family settlement at Exhibit244 was improperly
stamped and unregistered due to which it could not be read in
evidence. The trial Court had rightly found that the plaintiff had
acted upon these documents and was thus estopped from
challenging the same.
Accordingly, substantial question of law Nos. 2 and 4
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are answered by holding that the plaintiff having accepted and
acted upon family settlement as well as the memorandum of
partition, she was estopped from challenging the same. Said
documents even otherwise did not require any compulsory
registration under Section 17 of the Registration Act, 1908.
AS TO SUBSTANTIAL QUESTION OF LAW NO.3:
25. Perusal of the family settlement dated 20111982
(Exhibit244) indicates the purpose of making the family
arrangement. The adoption of a male child was being pondered
over as the defendant no.1 had three daugthters. After recognizing
the 1/8th share of the plaintiff in the joint family property, various
properties were given to the plaintiff in lieu of her share in the
joint family property. Hirabai from her half share had also given
some property to the plaintiff as mentioned in clause (6) of this
family arrangement. In lieu thereof the plaintiff gave up her rights
in other properties. These remaining properties were then
partitioned on 31121982 and scribed accordingly on 911983.
Thereafter, on 2141983 the defendant no.4 was taken in
adoption. As referred to earlier, the document of family
arrangement has to be given due importance as it was got
executed to enable adoption of a male heir to continue the family
tree. It was in lieu thereof that the plaintiff got certain properties
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from the undivided share of Hirabai after which she gave up her
rights in the remaining estate of Rekhchand and Hirabai. This
document having been scribed by her husband and no grievance in
that regard having been made shortly thereafter, it cannot be said
that the plaintiff did not receive any share in the property from the
share of Hirabai. She was, therefore, not entitled to claim partition
in the undivided estate of Hirabai. The first appellate Court
misconstrued both the documents at Exhibits244 and 243 when it
held otherwise. On a plain reading of both these documents, it
cannot be said that the plaintiff was deprived of her share in any
manner whatsoever. Hence, the ratio of the decision relied upon
by the learned Senior Counsel for the plaintiff cannot be applied to
the facts of the case. The substantial question of law No.3 stands
answered accordingly.
26. Thus, as a result of the answers given to the aforesaid
substantial questions of law, the judgment of the first appellate
Court to the extent it has granted 1/4th share in the suit property
to the plaintiff is liable to be set aside. The finding with regard to
the nonacceptance of will dated 18101981 is however liable to
be confirmed. As a result thereof, the judgment of the first
appellate Court to that extent is set aside. As a consequence
thereof, the judgment of the trial Court dismissing the suit has to
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be restored.
27. In the result, the following order is passed:
(a) The second appeal is allowed.
(b) The crossobjection filed by the original plaintiff stands
dismissed.
(c) The judgment of the first appellate Court in Regular
Civil Appeal No.60 of 2012 dated 1892014 is quashed and set
aside.
(d) The judgment of the trial Court in Special Civil Suit
No.129 of 1987 is restored. There would be no order as to costs.
JUDGE
/MULEY/
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.109 OF 2015
APPELLANT:
(Ori. Defendants)
1. Smt. Madankuwar wd/o Rekhchandji
Parakh, aged about 96 years, Occ.
Household, r/o Dhanraj Plaza, Main
Road, Chandrapur.
2. Smt. Shardkuwar wd/o Pannalaji
Talera, aged about 78 years, Occ.
Household, r/o Pawan Building, Ekori
ward, Chandrapur.
3. Smt. Shantakuwar wd/o Gulabchandji
Shishodiya, aged about 74 years, Occ.
Household, r/o Bogulkanta, Hyderabad
(Telangana) A.P.
VERSUSRESPONDENTS:
(Ori. Plaintiff)
1. Smt. Sushila w/o Gyanchand Katariya,
Aged about 67 years, Occ. Household,
r/o Near Bank of India, Main road,
Chandrapur.
(Ori. Deft. No.4) 2. Shri Deepakkumar S/o Rekhchandji
Parakh, aged about 49 years, Occ.
Business, R/o Dhanraj Plaza, Main
Road, Chandrapur.
Mr. K. H. Deshpande, Senior Advocate with Mr. Akshay Sudame,
Advocate for the appellants.
Mr. Anil Mardikar, Senior Advocate with Mr. S. Tapadia, Advocate
for the respondent no.1.
Mr. V. R. Choudhari, Advocate for the respondent no.2.
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CORAM: A.S. CHANDURKAR, J.
DATE ON WHICH SUBMISSIONS WERE HEARD: 03082017
DATE ON WHICH JUDGMENT IS PRONOUNCED: 24082017
ORAL JUDGMENT :
1. This appeal filed under Section 100 of the Code of
Civil Procedure, 1908 is at the instance of the original defendant
nos.1 to 3 who are aggrieved by the judgment and decree passed
by the first appellate Court decreeing the suit for partition and
separate possession filed by the respondent no.1.
2. Facts found necessary for deciding this appeal are
stated thus:
3. One Jethmalji Parakh was married to Smt. Hirabai.
Said Jethmalji died in November, 1956. Thereafter, his stepson
Rekhchand and Hirabai constituted joint Hindu family possessing
various properties. Rekhchandji was married to one Madan Kuwar
– defendant no.1. They had three daughters namely the plaintiff
and the defendant nos.2 and 3. The defendant no.4 was taken in
adoption as son of late Rekhchandji. According to the plaintiff,
Hirabai had executed a will in her favour on 18101981. Said
Hirabai also executed a lease deed in favour of the plaintiff on
3071982. Though the defendant nos.1 to 3 sought to rely upon a
partition that took place on 911983, this partition was denied by
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the plaintiff. On that basis, the plaintiff filed suit for partition and
separate possession of various properties as described in the
Schedule to the plaint.
4. The defendant nos.1 to 4 filed their written statement
and admitted the relationship between the parties. It was denied
that Hirabai had executed any will in favour of the plaintiff on
18101981. They relied upon an oral partition that took place on
31121982 which was later on reduced to writing on 911983.
According to the defendants, this partition was acted upon by all
the parties including the plaintiff. The defendants relied upon will
dated 2651983 executed by Hirabai and according to them, the
earlier will dated 18101981 could not be acted upon. It was thus,
prayed that the suit be dismissed.
5. After the parties led evidence, the trial Court held that
the plaintiff had failed to prove that Hirabai had executed a will in
her favour on 18101981. The partition dated 911983 was also
held to be not proved by the defendant nos.1 to 4. The subsequent
will dated 2651983 was also not accepted. The suit accordingly
came to be dismissed.
The first appellate Court in the appeal filed by the
plaintiff confirmed the finding that the plaintiff had failed to prove
the execution of will dated 18101981. Similarly, the finding that
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the defendant nos.1 to 3 had failed to prove the Will dated
2651983 was affirmed. The first appellate Court, however,
granted the alternate prayer and held the plaintiff as well as the
defendant nos.1 to 3 entitled to 1/4th share each by virtue of the
decree for partition.
6. The defendant nos.1 to 3 being aggrieved by this
adjudication have preferred the present second appeal. The
plaintiff being aggrieved by the finding recorded with regard to the
will dated 18101981 and the family settlement dated 20111982
has also filed cross objections.
7. This Court on 442016 allowed the second appeal and
dismissed the cross objections. After setting aside the judgment of
the appellate Court, the judgment of the trial Court was restored.
This judgment in the second appeal was then challenged by the
original plaintiff before the Hon’ble Supreme Court. Civil Appeal
Nos.2568/2017 and 2569/2015 were disposed of on 1022017.
It was found that this Court while deciding the second appeal had
reframed the substantial questions of law that had been originally
framed while admitting the appeal. It was held that the procedure
as laid down by provisions of Section 100(5) of the Code of Civil
Procedure, 1908 (for short, the Code) while reframing said
substantial questions of law had not been followed. On that
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ground, the judgment of this Court was set aside and the
proceedings were remitted for reconsideration in accordance with
law. It was observed that the appeal be decided within two or
three months. In view of aforesaid order, the appeal was taken up
for hearing.
8. After hearing the learned Counsel for the appellants
and the respondents the following substantial questions of law
were framed on 2772017:
(1) Whether the findings of fact recorded by both
the Courts below for rejecting the Will
(Exh.202) dated 28th October, 1981, projected
by the plaintiff are perverse?
(2) Whether the plaintiff having accepted,
admitted and acted upon the Family Settlement
dated 20th November, 1982 (Exh.244) would
be estopped by conduct in setting up a
challenge to the same Family Settlement as not
receivable in evidence for want of registration?
(3) Whether the plaintiff did not receive any share
from the share of Hirabai under the Family
Settlement dated 20th November, 1982 (Exh.
244) and consequently whether she was
entitled to claim partition in the undivided
estate of Hirabai?
(4) Whether the Family Settlement dated 20th
November, 1982 (Exh.244) and oral partition
reduced to Memorandum Fard dated 9th
January, 1983 (Exh.243) require compulsory
registration under Section 17 of the
Registration Act?
9. I have heard Shri K. H. Deshpande, learned Senior
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Advocate with Mr. A. M. Sudame, learned Advocate for the
appellants and Shri Anil Mardikar, learned Senior Advocate with
Mr. S. Tapadia for the respondent no.1. Shri V. R. Choudhari,
learned Advocate appeared for the respondent no.2.
10. Shri K. H. Deshpande, learned Senior Counsel for the
appellants – defendant nos.1 to 3 made the following submissions:
(a) Both the Courts were justified in holding the will dated
18101981 Exhibit202 to be not duly proved. According to him,
there were various suspicious circumstances on record which
supported the aforesaid conclusion. It was submitted that though
it was claimed that this will was executed on 18101981, it was
not at all referred to in the earlier suit that was filed by the present
plaintiff. Regular Civil Suit No.238/1984 was filed by the plaintiff
against some of the present defendants on 1381984 seeking
mandatory and perpetual injunction with regard to the suit
properties by relying upon the family settlement dated
20111982. Existence of said will was not pleaded in that suit.
Similarly, there was also no reference to the said will in the lease
deed dated 3171982 (Exhibit214) as well as in the family
arrangement dated 22111982 (Exhibit244) as well as the
partition deed dated 911983 (Exhibit243). It was then
submitted that the manner in which the said will was executed
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coupled with the active participation of the plaintiff’s husband
therein also cast a doubt on its execution. Said will saw the light of
the day only in the year 1987 when the present suit was filed on
13111987. The thumb impression of the executant Hirabai was
also not duly proved and therefore these findings which were
findings of fact recorded by both the Courts could not be termed to
be perverse. According to the learned Senior Counsel, this finding
therefore did not require any interference.
(b) The plaintiff having accepted and acted upon the
family settlement dated 20111982 (Exhibit244) was estopped by
her conduct from challenging this settlement on the ground that it
was not registered. Referring to the pleadings of the present
plaintiff in Regular Civil Suit No.238/1984, it was submitted that
the family arrangement dated 20111982 as well as the partition
deed dated 911983 were relied upon by the said plaintiff. The
family arrangement dated 20111982 was in fact scribed by the
plaintiff's husband Shri Gyanchand Kataria. It was prepared with
the consultation of all family members. Referring to the judgment
in Regular Civil Appeal No.2 of 2001 that was filed by the present
plaintiff challenging dismissal of Regular Civil Suit No.238/1984,
it was submitted that the appellate Court in para 7 of its judgment
had recorded a finding that said family arrangement dated
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20111982 did not require registration and was admissible in
evidence. As the family settlement dated 20111982 merely
recorded what was already agreed, said document did not require
registration. On the aspect of estoppel on account of conduct in
accepting such family arrangement, the learned Senior Counsel
placed reliance on the decisions in Kale and others Vs. Dy. Director
of Consolidation (1976) 3 SCC 119 and in P. N. Wankudre vs. C. S.
Wankudre AIR 2002 Bombay 129. It was thus submitted that
having accepted and acted upon the said family settlement, the
plaintiff was estopped from laying a challenge to the same.
(c) The plaintiff having received share from the estate of
Hirabai under the family settlement dated 20111982, she was
not entitled to claim partition in the undivided estate of Hirabai.
The plaintiff had accepted the family settlement as well as the
partition and had also acted upon the same. No grievance in that
regard was made by her in the earlier suit. Having accepted said
arrangement, she was precluded from again demanding partition
from the share of Hirabai.
(d) The family settlement dated 20111982 as well as
partition deed dated 911983 were not required to be registered
as they did not create any right in immoveable property for the
first time. These documents merely recognized the preexisting
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rights of the parties and they did not by themselves transfer any
right or property. Referring to the pleadings in the earlier suit, it
was contended that the plaintiff had in fact admitted the family
settlement and partition and therefore, it was not at all necessary
to again prove the same. The averments in the plaint in Regular
Civil Suit No.238/1984 as well as documents filed in that suit were
not at all considered by the appellate Court. Reference was also
made to the adjudication in Regular Civil Appeal No.2/2001 in
that regard. In any event, it was submitted that the proviso to
Section 49 of the Indian Registration Act, 1908 could be taken into
consideration to hold that there was severance of the joint family.
In that regard, reliance was placed on the decisions in Roshan
Singh and Others Vs. Zile Singh and others AIR 1988 SC 881.
It was thus, submitted that for aforesaid reasons, the
judgment of the first appellate Court was liable to be set aside and
the judgment of the trial Court dismissing the suit ought to be
restored.
11. Per contra, Shri Anil Mardikar, learned Senior
Advocate for the respondent no.1 – plaintiff opposed aforesaid
submissions by contending as under:
(a) The will dated 18101981 (Exhibit202)was the last
will that was duly executed by Hirabai bequeathing her properties
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in favour of the plaintiff. It was submitted that execution of this
will was not denied and in paragraph 4 of the written statement
it was merely pleaded that the executant was not in good health or
sound mind. No suspicious circumstances were pleaded for
denying the validity of the aforesaid will. The will at Exhibit404
also executed by Hirabai was undated, but it was prepared prior to
the will at Exhibit202. Reference was made to the letter at
Exhibit198 to point out the nature of relations Hirabai had with
other family members and it was on that basis that they had been
excluded from being granted any share as per that will. The thumb
impression of Hirabai on the said will had been duly proved and
on account of death of the attesting witness Dr. Dave, his son was
examined under Section 69 of the Indian Evidence Act. The
husband of the plaintiff was in the office of the District
Government Pleader in the year 198384 which was subsequent to
the execution of said will on 18101981. The circumstances relied
upon for discarding said will could hardly be termed as suspicious.
The typewriter was brought merely to facilitate preparation of the
will and the contents of that will were prepared as per the
directions of Hirabai. The contents were then read over and
explained to Hirabai who had put her thumb impression on the
same. According to the learned Senior Counsel as the property that
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was the subject matter of the earlier suit being Regular Civil Suit
No.238/1984 was different from the property bequeathed under
the will at Exhibit202, there was no reference made to the same
in the earlier suit. Similarly, the lease at Exhibit214 was to
operate during the life time of Hirabai and hence, there was no
reason to refer to it in the said will. Exhibit232 being a photo
copy of the will at Exhibit202 and the thumb impressions of
Hirabai having been obtained separately, there was bound to be
some difference in that regard. Hirabai was in good physical and
mental condition as was deposed by DW1. Failure on the part of
PW2 in identifying the photograph of Hirabai was also not a
suspicious circumstance inasmuch as the will having been
executed in the year 1981 and said witness having deposed after
almost twenty years, there was bound to be some difficulty in
identifying the executor of the will. In any event neither were the
negatives of the photographs placed on record nor was any
photographer examined. As the plaintiff was already in possession
of the suit property as a lessee pursuant to the lease deed at
Exhibit214, there was no occasion for the plaintiff to refer to the
said will at any earlier point of time. It was only on account of the
dispute being raised by the defendants that the plaintiff was
required to file the suit by referring to the said will in the year
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1987. It was thus submitted that the will was duly proved in the
light of provisions of Sections 61 and 63 as well as Section 69 of
the Indian Evidence Act and therefore both the Courts recorded a
perverse finding while discarding said will. In that regard the
learned Senior Counsel placed reliance on the following
judgments:
(1) Madhukar D. Shende vs. Tarabai Aba Shedage (2002)
2 SCC 85.
(2) Leela Rajagopal and Ors. v. Kamala Menon Cocharan
and Ors. AIR 2015 SC 107.
(3) Rajgopal vs. Kishan Gopal and anr AIR 2003 SC 4319.
(4) Surendra Pal and others v. Dr. (Mrs.) Saraswati Arora
and anr. AIR 1974 SC 1999.
(5) Mahesh Kumar V Vinod Kumar and ors. AIR 2012 SCW
2347.
(6) Naresh Charan Das Gupta v. Paresh Charan Das Gupta
and anr. AIR 1955 SC 363.
(7) Laxman Ganpati Khot and others v. Anusuyabai and
anr. AIR 1976 Bom. 264.
(8) Ramdas Bhatu vs. Anant Chunilal 2006 (6) Mh.L.J.
571.
(b) In addition to the aforesaid, the learned Senior
Counsel referred to the observations in paragraph 17 of the
judgment of the appellate Court to the effect that the plaintiff had
failed to refer the will at Exhibit202 to the Finger Print Expert for
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verifying the thumb impression of Hirabai. For said purpose he
referred to Civil Application Nos.293/2017 that was filed on behalf
of the original plaintiff seeking permission to file additional
documents in the form of the opinion of the Finger Print Expert.
Alternatively, it was prayed that the thumb impression on Exhibit
202 be directed to be examined by the Thumb Impression Expert.
According to the learned Senior Counsel before the trial Court
there was no serious dispute raised with regard to the thumb
impression of Hirabai and hence, the plaintiff did not feel
it necessary to make such application before the trial Court. As the
first appellate Court had taken into consideration absence of any
evidence being led with regard to the said thumb impression and
had treated the same as a suspicious circumstance, this
application was moved by relying upon the provisions of Order XLI
Rule 27 of the Code. If such evidence was permitted to be brought
on record, the same would enable the Court to adjudicate this
question in a better manner.
(c) It could not be said that the plaintiff had accepted,
admitted and acted upon the family settlement dated 20111982.
Hence, there was no question of she being estopped by conduct in
challenging the same. Referring to various clauses of this family
settlement, it was submitted that the property therein was that of
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Rekhchand. Hirabai's property remained with her which could be
gathered from the documents at Exhibit216, 221 and 222.
Referring to the judgment of the appellate Court in Regular Civil
Appeal No.2 of 2001 that arose out of the earlier suit filed by the
plaintiff, it was submitted that the family arrangement was on
record of those proceedings and it was held therein that the
property of Rekhchand was the subject matter of that suit. As no
relief was sought with regard to said properties, there was no
question of any estoppel operating. As 1/8th share was given to
the plaintiff in the said family arrangement, it was clear that the
property of Rekhchand was its subject matter. This arrangement
also took place during the life time of Hirabai who was shown as
party no.3 therein. As the plaintiff did not receive any share in the
property of Hirabai, she was entitled to seek partition from her
undivided estate. Reference was made to the judgment of the
Hon'ble Supreme Court in Seethalakshmi Ammal v.
Muthuvenkatarama AIR 1998 SC 1692 in that regard.
(d) That the trial Court while answering issue no.5 had
held that the defendants had failed to prove the partition dated
911983 between them and Hirabai. Though the said defendants
as respondents in Regular Civil Appeal No.60/2012 had filed
application below Exhibit 22 for challenging these findings, the
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appellate Court by order dated 1612014 had rejected the said
application filed under provisions of Order XLI Rule 22 of the
Code. It was therefore not permissible for the said defendants to
challenge said findings of the trial Court. It was however fairly
submitted by the learned Senior Counsel that the findings recorded
in paragraph 7 of the judgment of the appellate Court in Regular
Civil Appeal No.2/2001 that the family settlement dated 911983
being a document of family arrangement was not compulsorily
registrable and therefore, admissible in evidence had become final.
It was, therefore, submitted that in the light of the
cross objections filed by the plaintiff, the will dated 18101981
(Exhibit202) deserves to be accepted. However, if that will was
held to be not validly proved, the plaintiff would be entitled to rely
upon the family settlement dated 20111982 (Exhibit244) for
claiming a share in the joint family property.
12. Shri V. R. Choudhari, learned Counsel appearing for
respondent no.2 who was the original defendant no.4 adopted the
arguments of learned Senior Counsel for the appellants –
defendant nos.1 to 3.
13. In reply to the aforesaid arguments, Shri K. H.
Deshpande, learned Senior Advocate submitted that there were no
pleadings on behalf of the plaintiff that the undated will at Exhibit
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404 was executed prior to the will at Exhibit202. As the
document of family arrangement dated 20111982 was scribed by
the plaintiff's husband, a reference to the will dated 18101981
was necessary. Absence of such mention indicated that the
plaintiff was satisfied with what she had received. Hirabai being a
party to the partition deed at Exhibit243, it could not be said by
the plaintiff that Hirabai had disowned this document. Once the
will dated 18101981 was discarded, this document become
relevant. Relying upon the decision in Union of India vs. Ibrahim
Uddin and another (2012) 8 SCC 148 it was submitted that no case
for leading additional evidence was made out by the plaintiff.
14. I have heard the learned Counsel for the parties at
length and with their able assistance, I have also perused the
records of the case.
AS TO SUBSTANTIAL QUESTION OF LAW NO.1:
15. This substantial question of law pertains to the validity
of the will dated 28101981 (Exhibit202). According to the
plaintiff, this will was executed by Hirabai and her property was
bequeathed in favour of the plaintiff. It was pleaded that this will
was executed when Hirabai was in good health and in sound mind.
As the defendants were selling some of the properties that were
bequeathed to the plaintiff, it became necessary to file the present
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proceedings. In the written statement filed on behalf of the
defendant nos.1 to 4, it was denied that Hirabai in good health
and sound mind and that she had executed a last will dated
18101981. It was pleaded that the properties sought to be sold
were within their own rights and the plaintiff had no concern with
the same. It was pleaded that the alleged will was false and
fabricated. The defendants then relied upon a subsequent will
dated 2651983 executed by Hirabai and thus contended that the
will dated 18101981 was a false and fabricated document.
Both the Courts have after considering the evidence on
record referred to various suspicious circumstances for not
accepting the claim of the plaintiff based on the will dated
18101981. It has been found that though it was claimed that
such will was executed on 18101981, it found no reference in the
documents prepared subsequently being the lease deed dated 30
71982 (Exhibit214), family arrangement dated 20111982
(Exhibit244) and the partition deed dated 911983 (Exhibit
243). It was then found that the will had been got typed by
bringing a typewriter at the place of its preparation. It was scribed
in Hindi while Hirabai was illiterate and could neither read nor
write Hindi. The presence of PW2 – Shaineshchandra was found
to be a bit unnatural as he was not well acquainted with Hirabai.
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Said PW2 also could not identify the photograph of Hirabai when
he was confronted with the same in his crossexamination. The
appellate Court further observed that the plaintiff did not take any
steps to have the thumb impression of Hirabai examined by an
expert.
16. On behalf of the plaintiff, Civil Application No.293/
2017 has been moved seeking permission to file on record a copy
of the opinion of an Hand Writing expert. An alternate prayer is
also made to have the thumb impression of Hirabai examined by
an expert. This application is purportedly under provisions of
Order XLI Rule 27 of the Code. According to the plaintiff, the
defendants had not seriously disputed that the thumb impression
on the will dated 18101981 was that of Hirabai. In view thereof,
this application was not moved before the first appellate Court nor
was it found necessary by the plaintiff to have the opinion of such
expert before the trial Court. For showing her bonafides, the
plaintiff intended to dispel all doubts about the will bearing the
thumb impression of Hirabai and hence, this application was
moved.
According to the defendants, the plaintiff had not
satisfied the ingredients of Order XLI Rule 27 of the Code and that
the application was moved for delaying the proceedings.
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17. On hearing the learned Counsel in that regard, I find
that this application moved by the plaintiff does not deserve to be
allowed. The plaintiff being the propounder of the will dated
18101981, it was for her to remove all circumstances that could
cast a doubt on the execution of the will. In the written statement,
it had been denied that such will was executed by Hirabai. The
reasons furnished for not obtaining the opinion of Thumb
Impression expert either before the trial Court or first appellate
Court do not appear to be convincing. The ingredients for
permitting the plaintiff to rely upon the additional evidence under
provisions of Order XLI Rule 27 of the Code also are not satisfied.
On considering the entire evidence on record, I do not find the
necessity to rely upon such additional evidence for a proper
adjudication of the appeal. After considering the law laid down in
Ibrahim Uddin and another (supra) I find that the prayer made in
the application for relying upon the opinion of the Thumb
Impression expert dated 932017 as well as the alternate prayer
for obtaining such opinion does not deserve to be granted.
Accordingly, said application stands rejected.
18. It is necessary to briefly refer to the suspicious
circumstances that have been taken into consideration by both the
Courts. An important circumstance that has gone unexplained is
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the absence of any reference to the will dated 19101981 in the
lease deed dated 3071982, family arrangement dated
20111982 and the deed of partition dated 911983. Besides
these documents, Regular Civil Suit No.238/1984 had been filed
by the present plaintiff seeking the relief of removal of
encroachment along with a prayer for perpetual injunction. This
relief was sought with regard to the properties referred to in the
Schedule of the plaint. Reference in that plaint was made to the
family arrangement dated 20111982 as well as the partition
dated 911983. However, there was no reference made in that
plaint to the will dated 18101981. Be it noted that Hirabai was a
party to all these documents and it would have been natural for
her to have referred to the will executed by her on 18101981 in
the documents executed subsequently. There is no justifiable
reason for the absence of any reference to the will in the aforesaid
documents. Moreover, by executing said will as alleged, rights had
been conferred on the plaintiff by Hirabai. In such situation, if the
will was already executed on 18101981 then there was no reason
for executing lease dated 3071982 again by Hirabai in favour of
the plaintiff with regard to the same property. Said lease was for a
period of sixty years and Hirabai was aged about 75 years when
the lease deed was executed. The reason furnished that the lease
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was executed to enable Hirabai to receive lease amount does not
appear to be very convincing.
The aforesaid aspects are clearly evident from the
record and absence of reference to the execution of the will in the
subsequent documents dealing with the right in said properties to
which the executant was the party does not appear to be very
natural.
19. The will at Exhibit202 has been type written in Hindi.
It has come on record that Hirabai was illiterate and was speaking
Marwadi language. PW2 in his deposition has further admitted
that the portion marked 'D' was not narrated by Hirabai when the
rough notes were being taken by him. The exclusion of other
relatives including defendant nos.1 to 3 which is sought to be
justified on account of strained relations by referring to the letter
at Exhibit198 also does not appear very convincing. This letter at
Exhibit198 is dated 1931977 written by the defendant no.1 to
the plaintiff. Similarly, the thumb impression of Hirabai appears
only on the first and third page of the will. Absence of the thumb
impression on the second page of the will is sought to be explained
by stating that as the thumb impression was put on the first and
third page, its absence on the second page was not very material.
Further the description of the property sought to be bequeathed
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has not been mentioned in the said will and it is stated in general
terms that all properties in which Hirabai had a right stood
bequeathed. Though it is true that the photographs with which
PW2 was confronted were not duly proved as required in view of
the law laid down in Laxman Ganpati Khot and Ramdas Bhatu
Chaudhary (supra), that aspect by itself would not assist the case
of the plaintiff.
20. I find that both the Courts on consideration of the
entire evidence on record have found that there were various
suspicious circumstances surrounding the alleged execution of will
dated 18101981. The plaintiff has been found to have been
unable to remove those suspicious circumstances by leading cogent
evidence. The plaintiff as propounder of the will failed to prove its
execution in a manner that would warrant its acceptance as the
last will of Hirabai. As held in Dhannulal vs. Ganeshram (2015) 12
SCC 301, proof of a will stands on a higher degree in comparison
with other documents. On a consideration of the cumulative
effective of the entire material on record and after scrutinizing the
same in the light of the ratio of the decisions cited by both parties,
I do not find any reason to disregard the findings concurrently
recorded by both the Courts as regards invalidity of will dated 18
101981. The appreciation of evidence in that regard cannot be
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said to be perverse nor can it be said that such conclusion arrived
at by both the Courts was an impossible conclusion not warranted
by the evidence on record. Substantial question of law No.1 is
answered by holding that the rejection of the will dated
18101981 projected by the plaintiff is not a perverse conclusion.
AS TO SUBSTANTIAL QUESTION OF LAW NOS.2 & 4:
21. On 20111982 a family arrangement at Exhibit244
was entered into between the parties. The need for this family
arrangement was felt on account of the death of the husband of
the defendant no.1 as well as aunt of the husband of defendant
no.1. The joint property of the Hindu undivided family had not
been partitioned after the death of Rekhchand, husband of
defendant no.1. The defendant no.1 intended that a male child be
adopted to continue the family tree. Hence, with a view to avoid
any dispute pursuant to such adoption, it was resolved to make an
arrangement of the family properties before hand. The plaintiff
who had 1/8th share in the joint family property was given various
properties in lieu of that share. Hirabai had consented for
adoption of a male child and on that count also she gave some
properties from her half share to the plaintiff. In lieu thereof the
defendant nos.1 to 3 each agreed to pay Hirabai Rs.100/ per
month. On receiving various properties in the family arrangement,
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the plaintiff no.1 relinquished all her rights over the other
properties of the joint family. The plaintiff, defendant nos.1 to 3 as
well as Hirabai were signatories to this family arrangement that
was scribed by the husband of the plaintiff.
On 31121982, there was an oral partition between
Hirabai and defendant nos.1 to 3. This oral partition was then
scribed on 911983 (Exhibit243). In this document a reference
has been made to the family arrangement dated 20111982 and
the rights given to the plaintiff therein. Excluding those properties
in which the plaintiff had been given her rights, Hirabai and the
defendant nos.1 to 3 partitioned the remaining properties.
22. The plaintiff on 1681984 filed Regular Civil Suit
No.238/1984 pleading that on 20111982 she was given certain
properties exclusively. The said suit was filed against present
defendant no.1 and defendant no.4 praying that they be directed
to remove encroachment in the properties to which the plaintiff
had an absolute right. It is pertinent to note that in the plaint of
that suit at Exhibit203 there is a clear reference to the family
arrangement dated 20111982 with further pleading that the
plaintiff had become the absolute owner of those properties by
virtue of said family arrangement. This document of family
arrangement as well as copy of the partition deed dated 911983
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were filed on record along with the plaint. The averments of the
plaintiff in that suit, therefore, clearly indicate that the plaintiff
had accepted, admitted and acted upon the family settlement at
Exhibit244 as well as memorandum of partition dated 911983.
In that view of the matter, it was open for the defendants to
canvass that the findings recorded against issue no.5 by the trial
Court were incorrect. In any event, the appellate Court while
rejecting application below Exhibit 22 had observed that said
grounds could be argued in the appeal.
23. The aspect of estoppel in the matter of accepting a
family arrangement and subsequently trying to resile from the
same has been considered in Kale and others (supra) by the
Hon'ble Supreme Court. The following observations in said
decision apply to the case in hand:
“9. By virtue of a family settlement or
arrangement members of a family descending
from a common ancestor or a near relation seek to
sink their differences and disputes, settle and
resolve their confrlicting claims or disputed titles
once for all in order to buy peace of mind and
bring about complete harmony and good will in
the family. The family arrangements are governed
by a special equity peculiar to themselves and
would be enforced if honestly made.
The object of the arrangement is to
protect the family from longdrawn litigation or
perpetual strifes which mar the unity and
solidarity of the family and create hatred and bad
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blood between the various members of the family.
The Courts have, therefore, leaned in
favour of upholding a family arrangement instead
of disturbing the same on technical or trivial
grounds. Where the Courts find that the family
arrangement suffers from a legal lacuna or a
formal defect the rule of estoppel is pressed into
service and is applied to shut out plea of the
person who being a party to family arrangement
seeks to unsettle a settled dispute and claims to
revoke the family arrangement under which he
has himself enjoyed some material benefits.”
24. The evidence on record indicates that initially on
20111982, the family members before the adoption of defendant
no.4 gave share of the joint family property to the plaintiff. The
remaining property was then partitioned between the defendant
nos.1 to 3. In other words, those properties that were not allotted
to the plaintiff as per Exhibit244 were subsequently divided
between other family members as per Exhibit243. The plaintiff
enjoyed the properties received by her as per Exhibit244 and
made no grievance in that regard till the year 1987 when she came
up with her stand that by virtue of will dated 18101981, she was
the owner of the suit property. Absence of any grievance
immediately after the family arrangement was scribed by her
husband and which was signed by the plaintiff is a factor that
cannot be ignored. The aforesaid conduct of the plaintiff clearly
estops her from contending that both these documents did not
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deserve to be taken into consideration for want of registration.
Moreover, in Regular Civil Appeal No.2/2001 that arose out of
dismissal of Regular Civil Appeal No.238/1984, the learned 2nd
Additional Sessions Judge, Chandrapur while considering the
family arrangement dated 20111982 has in paragraph seven of
the judgment recorded a finding that said document was not
compulsorily registrable and therefore admissible in evidence.
This finding has attained finality in the proceedings to which the
present plaintiff and the defendant nos.1 and 4 are party.
Similarly, on a plain reading of the memorandum of partition at
Exhibit243, it can be found that it refers to the oral partition that
had taken place on 31121982 between the defendant nos.1 to 3
and Hirabai. It was only scribed on 911983. As observed in
Roshansingh (supra), the subsequent list of properties prepared
pursuant to earlier agreement of partition does not require any
registration. The first appellate Court committed an error when
it held that the family settlement at Exhibit244 was improperly
stamped and unregistered due to which it could not be read in
evidence. The trial Court had rightly found that the plaintiff had
acted upon these documents and was thus estopped from
challenging the same.
Accordingly, substantial question of law Nos. 2 and 4
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are answered by holding that the plaintiff having accepted and
acted upon family settlement as well as the memorandum of
partition, she was estopped from challenging the same. Said
documents even otherwise did not require any compulsory
registration under Section 17 of the Registration Act, 1908.
AS TO SUBSTANTIAL QUESTION OF LAW NO.3:
25. Perusal of the family settlement dated 20111982
(Exhibit244) indicates the purpose of making the family
arrangement. The adoption of a male child was being pondered
over as the defendant no.1 had three daugthters. After recognizing
the 1/8th share of the plaintiff in the joint family property, various
properties were given to the plaintiff in lieu of her share in the
joint family property. Hirabai from her half share had also given
some property to the plaintiff as mentioned in clause (6) of this
family arrangement. In lieu thereof the plaintiff gave up her rights
in other properties. These remaining properties were then
partitioned on 31121982 and scribed accordingly on 911983.
Thereafter, on 2141983 the defendant no.4 was taken in
adoption. As referred to earlier, the document of family
arrangement has to be given due importance as it was got
executed to enable adoption of a male heir to continue the family
tree. It was in lieu thereof that the plaintiff got certain properties
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from the undivided share of Hirabai after which she gave up her
rights in the remaining estate of Rekhchand and Hirabai. This
document having been scribed by her husband and no grievance in
that regard having been made shortly thereafter, it cannot be said
that the plaintiff did not receive any share in the property from the
share of Hirabai. She was, therefore, not entitled to claim partition
in the undivided estate of Hirabai. The first appellate Court
misconstrued both the documents at Exhibits244 and 243 when it
held otherwise. On a plain reading of both these documents, it
cannot be said that the plaintiff was deprived of her share in any
manner whatsoever. Hence, the ratio of the decision relied upon
by the learned Senior Counsel for the plaintiff cannot be applied to
the facts of the case. The substantial question of law No.3 stands
answered accordingly.
26. Thus, as a result of the answers given to the aforesaid
substantial questions of law, the judgment of the first appellate
Court to the extent it has granted 1/4th share in the suit property
to the plaintiff is liable to be set aside. The finding with regard to
the nonacceptance of will dated 18101981 is however liable to
be confirmed. As a result thereof, the judgment of the first
appellate Court to that extent is set aside. As a consequence
thereof, the judgment of the trial Court dismissing the suit has to
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be restored.
27. In the result, the following order is passed:
(a) The second appeal is allowed.
(b) The crossobjection filed by the original plaintiff stands
dismissed.
(c) The judgment of the first appellate Court in Regular
Civil Appeal No.60 of 2012 dated 1892014 is quashed and set
aside.
(d) The judgment of the trial Court in Special Civil Suit
No.129 of 1987 is restored. There would be no order as to costs.
JUDGE
/MULEY/
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