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PETITIONER: VRINDAVANIBAI SAMBHAJI MANE

       Vs.

RESPONDENT: RAMCHANDRA VITHAL GANESHKAR & ORS.

DATE OF JUDGMENT10/07/1995

BENCH: MANOHAR SUJATA V. (J) BENCH: MANOHAR SUJATA V. (J) AGRAWAL, S.C. (J)

CITATION:  1995 AIR 2086            1995 SCC  (5) 215  JT 1995 (7)   363        1995 SCALE  (4)271

ACT:

HEADNOTE:

JUDGMENT:                THE 10TH DAY OF JULY, 1995 Present:           Hon’ble Mr.Justice S.C.Agrawal           Hon’ble Mrs.Justice Sujata V.Manohar Mr. M.S. Ganesh, Adv. for the appellant Mr.S.B.Wad, Sr. Adv. Mrs.S.Usha Reddy and Mrs. Jayasree Wad, Advs. with him for the Respondents.                     J U D G M E N T The following Judgment of the Court was delivered:                IN THE SUPREME COURT OF INDIA                CIVIL APPELLATE JURISDICTION                CIVIL APPEAL NO. 2409 OF 1978 Vrindavanibai Sambhaji Mane              ...Appellant V. Ramchandra Vithal Ganeshkar              ...Respondents and Ors.                     J U D G M E N T Mrs. Sujata V. Manohar. J.      The appellant  Vrindavanibai was the original defendant no.1 in  the suit  filed by Vithalrao Ganpatrao Ganeshkar in the Court  of the Civil Judge, Junior Division, at Pune. The present  respondents   1  to  5  are  the  heirs  and  legal representatives  of   the   original   plaintiff   Vithalrao Ganpatrao Ganeshkar.  The suit  was filed  for a declaration that the  plaintiff was the owner of the suit property which consists of a house bearing no.674, Narayan Peth at Pune.      The suit  property originally  belonged to one Rangubai Maruti Ganeshkar. She died on 28.2.1947 and her property was inherited by  her daughter  Babubai Sonba Pawar. Babubai was widowed in  childhood. She  had  no  children.  She  was  in possession of  this house till her death. She resided in one of the rooms in this house. The other rooms were rented out. In her  life time she was managing this property, recovering rent and  maintaining herself  from this  income.  Babubai’s mother had  a sister  Gangubai. Gangubai had two daughters -

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Vrindavanibai  and   Indubai  who   are  the  appellant  and respondent no.2  before us.  Babubai had good relations with the appellant  Vrindavanibai and  her husband. The appellant often  visited  Babubai  and  generally  looked  after  her. Babubai died on 27.11.1963 on account of a heart attack. She was 50  years of  age at the time of her death. Prior to her death, she  made a  will dated 25.7.1963 under which she has given all  her properties to the appellant. Accordingly, the appellant claims  to be  the owner  of the property which is the subject matter of dispute in the present proceedings.      The original  plaintiff Vithalrao  Ganpatrao  Ganeshkar was Rangubai’s  husband’s brother’s  son. From  the evidence which is  on  record,  it  is  apparent  that  the  original plaintiff or  his family  had not kept in touch with Babubai during her  life time.  His son,  who gave  evidence at  the trial, was  not able  to  say  anything  about  how  Babubai maintained  herself   during  her   life.  Under  the  Hindu Succession Act  by  which  the  parties  are  governed,  the original plaintiff would be the heir of Babubai had she died intestate.      After the  death  of  Babubai  the  appellant  and  her husband were  in  possession  and  management  of  the  suit property. The  plaintiff Vithalrao  tried to take possession of the  room which  had been occupied by Babubai, as well as her moveables.  As a  result of  which, in  December 1964  a police complaint  was lodged  and the  room was  sealed.  In March 1965  Vithalrao applied  to get  his name  entered  in respect of  this property  in the  City Survey Records. This was opposed  by the  appellant and  her husband. Ultimately, the names  of Vithalrao  as well  as the  appellant and  her sister - the 6th respondent, were entered in the City Survey Records.      In  February   1967  the  present  suit  was  filed  by Vithalrao for  a declaration  that he  was the  owner of the said  property  and  for  its  possession.  In  the  written statement which is filed by the appellant, she claimed title to the  suit property  by virtue of the will left by Babubai in her  favour. The  written  statement  was  filed  by  her sometime  in   March  1968.   Immediately,  thereafter,  she produced the  original will  in court. The plaintiff did not raise any  plea questioning  either the  genuineness or  the validity of the Will.      The Trial  Court framed  an issue  as  to  whether  the appellant Vrindavanibai had become the owner of the property of Babubai  by virtue  of the will dated 25.7.63 as alleged. At  the  trial,  the  appellant  led  the  evidence  of  two attesting witnesses  of the  Will who deposed that they were present at  the  time  of  execution  of  the  Will  at  the invitation  of  Babubai.  They  had  seen  Babubai  put  her signature on the Will in their presence and each of them had put his signature on the Will as an attesting witness in the presence of  Babubai as  well as  in the  presence  of  each other. The appellant also examined herself. She deposed that in the  Diwali of  the year  1963 Babubai gave her the Will. That is  how she  came to  know that  Babubai had executed a Will in her favour on 25.7.1963. Neither she nor her husband were present  at the  time of  execution of the Will and did not know  anything about  the Will until it was given to her in the Diwali of 1963. She did not know how the Will was got prepared by  Babubai. As against this evidence the plaintiff did not  examine himself.  His  son  Maruti,  however,  gave evidence on  behalf of the plaintiff. He denied the Will and claimed the property as an heir of Babubai.      The Trial Court held that the Will was not proved as it was not  entirely satisfied about the testimony of attesting

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witnesses. It  decreed the  suit. In  appeal,  however,  the District Court at Pune, after analysing the entire evidence, has, by a detailed reasoning come to the conclusion that the Will  has   been  properly  proved  by  the  appellant.  The Appellant Court  accepted the testimony of the two attesting witnesses as  properly proving  the Will.  The Court further observed that  without any  basis, the Trial Court ought not to  have   rejected  the  testimony  of  the  two  attesting witnesses who  were not  shaken in  cross-examination though there might  be minor  discrepencies. Both  these  witnesses were known  to the  testatrix. They  have deposed  that they were called  by her  on  the  25th  of  July,  1963  to  her residence  for  the  purpose  of  attesting  her  Will.  The Appellate Court  came  to  the  conclusion  that  there  was nothing suspicious  about the  circumstances relating to the execution of  the Will  or the  testimony given  by the  two attesting witnesses. The Appellate Court also noted that the plaintiff did  not take any plea challenging the genuineness of Babubai’s  signature on  the Will nor was it alleged that the Will  was a  forged document prepared after the death of Babubai by  the appellant  to obtain her property. There was also no  plea of  any undue influence being exercised by the appellant over Babubai to get a Will executed in her favour.      In order  to satisfy its conscience the Appellate Court has also  looked at  the undisputed  signatures  of  Babubai which were  available on  Exhibits 54  to 56  which are rent receipts signed by Babubai. After comparing these signatures with the  signature on the Will, the court observed that the signature on  the Will is genuine. As there was no challenge to the  genuineness of the signature of Babubai on the Will, neither party led any expert evidence on this aspect.      The only  "suspicious circumstance"  relied upon by the plaintiff was,  that  the  Will  was  not  produced  by  the appellant immediately  after the death of Babubai, or at the earliest possible  opportunity. It was not produced till she filed her  written statement  in March  1968.  There  was  a police complaint  filed in  December 1964 when the plaintiff had tried  to take  possession of  Babubai’s room.  On  this occasion the  appellant or  her husband  did  not  make  any statement relating  to the  existence of  a  Will  in  their favour. In the proceedings before the City Survey Officer, a statement was given by the husband of the appellant. He also did not  make any reference to the Will of Babubai in favour of the appellant.      The  Appellate  Court  has  held  that  on  both  these occasions the  dispute was  only regarding the possession of the property.  It was not an occasion on which the appellant was required  to establish  her ownership  or title over the suit property.  Hence, she  may have decided not to disclose the existence  of the  Will in  those proceedings, and might have bided her time.      After considering  the entire  evidence before  it, the Appellate Court  held that the appellant had proved the Will and consequently  her title to the suit property. The appeal was, therefore, allowed.      In Second  Appeal, the learned Single Judge of the High Court has,  however, re-assessed the entire evidence and has come to  the conclusion that the appellant has not dispelled suspicious circumstances  surrounding the  execution of  the Will. It  is  difficult  to  appreciate  this  kind  of  re- assessment of  evidence in  Second Appeal.  Ordinarily,  the decision on  facts arrived at by the first Appellat Court is not disturbed in Second Appeal. The Appellate Court had, for cogent reasons,  accepted the testimony of the two attesting witnessess. It  is difficult  to see  why this testimony was

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not accepted in Second Appeal. Moreover, the Appellate Court had examined  the question  of non-disclosure of the Will on two earlier  occasions and  had found that there was nothing suspicious in  that regard.  The Will  had been  produced in court immediately  after the appellant had relied upon it in her written  statement. Learned  Single Judge  of  the  High Court seems  to consider  this as  a suspicious circumstance forgetting that  there was  no specific  challenge to either the validity or proper execution of the Will.      It is  also apparent  that there  is nothing  unnatural about the  contents of  the Will.  The evidence  before  the court makes it clear that while the plaintiff and his family had not  cared to enquire after Babubai and had not cared to look after  her during  her life time, the appellant and her husband had  throughout looked  after Babubai and maintained good relations  with her.  If, therefore,  she made  a  Will leaving her  properties to  the  appellant,  this  was  only natural. The  6th  respondent  who  is  the  sister  of  the appellant and  who was  also on  good terms with Babubai has not challenged the Will.      As far back as in 1894 the Privy Council in the case of Choteynarain Singh v. Mussamat Ratan Koer (22 Indian Appeals 12) observed  that in  the case  of execution  of a Will, an improbability must  be clear  and cogent.  It must  approach very nearly  to, if  it does  not altogether  constitute, an impossibility. This  was reiterated  by  the  Calcutta  High Court in the case of Kristo Gopal Nath v. Baidya Nath & Ors. (AIR 1939  Cal. 87).  It said  that when  a court is dealing with  a  testamentary  case  where  there  is  a  large  and consistent body  of testimony  evidencing  the  signing  and attestation of  the Will,  but where  it is  suggested  that there are  circumstances which raise a suspicion and make it impossible that  the Will  could  have  been  executed,  the correct line of approach is to see that the improbability in order to  prevail against  such evidence  must be  clear and cogent and  must approach  very nearly  to, if  it does  not altogether constitute,  an impossibility.  There is  no such improbability about the Will in the present case.      There is  also a  large body of case law about what are suspicious circumstances surrounding the execution of a Will which  require   the  propounder  to  explain  them  to  the satisfaction of the court before the Will can be accepted as genuine. A  Will has  to be  proved like  any other document except for the fact that it has to be proved after the death of the testator. Hence, the person executing the document is not there  to give testimony. The propounder, in the absence of any suspicious circumstances surrounding the execution of the Will, is required to prove the testamentary capacity and the signature  of  the  testator.  Some  of  the  suspicious circumstances of which the court has taken note are: (1) The propounder taking  a prominent  part in  the execution  of a Will which  confers substantial  benefits on  him; (2) Shaky signature;  (3)   A  feeble  mind  which  is  likely  to  be influenced; (4) Unfair and unjust disposal of property. (See in  this   connection:  H.   Venkatachala  Iyengar  v.  B.N. Thimmajamma &  Ors. (1959 Supp. (1) SCR 426), Indu Bala Bose & Ors. v. Manindra Chandra Bose & Anr. (1982 (1) SCR 1188 at p. 1192)  and Guro(Smt.)  v. Atma Singh & Ors. (1992 (2) SCC 507 at p. 511). Suffice it to say that no such circumstances are present here.      Learned Advocate  for respondents  1 to 5 has submitted that Babubai  was only fifty years of age when she died. She was enjoying  normal health.  There was no reason for her to make the  Will. But in the Will itself Babubai has mentioned that she is suffering from physical weakness although she is

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not a  very old  person and hence she is making the Will. In any case, motive for making the Will is not really relevant. The fact  that testatrix  made a  Will at  the age  of fifty cannot be considered as a suspicious circumstance reflecting on the genuineness of the Will.      In the  premises, the  High Court  was not right in re- appraising evidence  in Second  Appeal  and  coming  to  the conclusion that  the Will was not genuine or was not proved. The appeal is, therefore, allowed. The judgment and order of the High  Court is  set aside  and the judgment and order of the first  Appellate Court is restored. There will, however, be no order as to costs.