Date : 14/06/2012 1.00. Present Second Appeal under section 100 of the Code of Civil Procedure has been preferred by the appellants herein – heirs and legal representative of the original plaintiff to quash and set aside the impugned Judgement and Order passed by the learned appellate court - learned Assistant Judge, Bharuch dtd.20/12/1984 by which the learned appellate court has allowed the said appeal preferred by the respondents herein – original defendants by quashing and setting aside the judgement and decree passed by the learned trial court – learned Civil Judge (J.D.), Rajpipla in Regular Civil Suit No. 117 of 1977 by which the learned trial court has decreed the suit for partition of the suit properties. 2.00. That the original plaintiff instituted Regular Civil Suit No.117 of 1977 in the court of learned Civil Judge (J.D.), Rajpipla for partition of the suit properties alleging inter-alia that the suit properties are ancestral properties and he has share in the said suit properties.
2.01. That the suit was resisted by the defendants by filing Written Statement at Ex.17. It was specifically denied that the suit properties are ancestral properties. It was contended on behalf of the defendants that the suit properties are self-acquired properties of Bhikhabhai and that the plaintiff had no right, title or interest in the suit properties. It was also the case on behalf of the defendants that as such Bhikhabhai executed Will in favour of the defendant No.4 in presence of all brothers and sisters. It was also contended on behalf of the defendants that the suit is instituted after a period of more than 12 years and hence the suit is time barred.
2.02. That the learned trial court framed the Issues and one of the Issue was with respect to Will executed by the deceased father in favour of the defendants, more particularly as to Whether the plaintiff proves that the Will executed by the deceased father in favour of the defendants was not executed under influence and not in sound and disposition capacity of mind?
2.03. That the respective parties led evidence on all the Issues and the learned trial court held that the Will was executed when the testator was not of free mind and was not able to understand the consequences and it was executed undue influence of the defendant No.4.
2.04. That the learned trial court also held that the plaintiff has failed to prove that the suit properties are properties ancestral properties. That the learned trial court by the judgement and decree dtd.30/6/1983 allowed the suit for partition and held that the plaintiff has 1/7th share in the suit properties.
2.05. Being aggrieved by and dissatisfied with the judgement and decree passed by the learned trial court, the defendants preferred Regular Civil Appeal No. 133 of 1983 before the learned District Court, Bharuch and the learned Assistant Judge, Bharuch by the impugned Judgement and Order has allowed the said appeal by quashing and setting aside the judgement and decree passed by the learned trial court.
2.06. Being aggrieved by and dissatisfied with the impugned Judgement and Order passed by the learned appellate court the original plaintiff has preferred present Second Appeal under section 100 of the Code of Civil Procedure. It appears that during the pendency of the present appeal, the original plaintiff has expired and therefore, his heirs are brought on record as appellants.
2.07. Present Second Appeal is admitted for consideration of the following substantial questions of law;-
(1) Whether the learned Lower Appellate Court was right in reversing the judgement and decree passed by the trial court on the question on genuineness of the Will Exhibit 124?
(2) Whether the facts and circumstances stated in the memo of appeal, the learned Lower Appellate Court was right in holding that the plaintiff has failed to prove that the Will executed by his father was under undue influence and not in sound and disposing capacity of mind?
3.00. Mr.Vikram Thakore, learned has appeared on behalf of the appellant. It is submitted by Mr.Thakor learned advocate appearing on behalf of the appellants that the lower appellate court has materially erred in reversing the finding given by the learned trial court on the genuineness of the Will which was on appreciation of evidence. It is submitted by Mr.Thakore, learned advocate appearing on behalf of the appellants that admittedly when the deceased was suffering from paralytic attack, the learned trial court had rightly held that the testator was not able to understand the consequences and he was not in sound and disposing capacity of mind. It is submitted that the said finding was given by the learned trial court on appreciation of evidence, more particularly evidence of attesting witness and therefore, the same was not required to be interfered with by the learned appellate court. It is further submitted by Mr.Thakor, learned advocate appearing on behalf of the original plaintiff that in fact it has come on record that all throughout the original defendant No.4 has taken active part and in fact he went to the advocate and/or brought the advocate and the contents of the Will were even written at the instructions of the defendant No.4 and even he took the deceased to the office of the Sub-Registrar and therefore, the learned trial court had rightly observed and held that the Will was executed by the deceased under the undue influence of the defendant No.4, which was not required to be interfered with by the learned appellate court.
3.01. Mr.Thakor, learned advocate appearing on behalf of the appellants – original plaintiffs has heavily relied upon the decisions of the Hon'ble Supreme Court in the case of K.Laxmanan Versus Thekkayil Padmini and Others, reported in AIR 2009 S.C. 951; in the case of Bharpur Singh & Ors. Versus Shamsher Singh, reported in AIR 2009 S.C. 1766 as well as in the case of Apoline D'Souza Versus John D'Souza, reported in AIR 2007 S.C. 2219. Relying upon above decisions, it is submitted by the learned advocate appearing on behalf of the original plaintiff that if it is found that there are suspicious circumstances, in that case, such suspicions circumstances had to be removed by the propounder of the Will and if it is not done so, it can be said that the execution of the Will is not proved. It is further submitted that as held by the Hon'ble Supreme Court onus of proving the Will is on the propounder.
By making above submissions and relying upon above decisions, it is requested to allow the present Second Appeal.
4.00. Present Second Appeal is opposed by Mr.Harshad Patel, learned advocate appearing on behalf of the original defendants. It is submitted that the learned appellate court has rightly re-appreciated the evidence on record in exercise of appellate jurisdiction and the finding given by the learned appellate court is on re-appreciation of entire evidence on record, which is not required to be interfered with by this Court in exercise of powers under section 100 of the Code of Civil Procedure. It is submitted that as such the learned appellate court has given cogent reasons while upsetting the finding given by the learned trial court with respect to genuineness of the Will and/or finding given by the learned trial court that when the Will was executed, testator was not of free mind and that the Will was executed under the undue influence of the defendant No.4. It is submitted that as such the defendant No.4 has removed all the doubts with respect to suspicious circumstances alleged by the plaintiff by leading evidence. It is submitted that even the learned appellate court has also further considered the fact that the Will was registered Will and the deceased was taken to the office of the Sub-Registrar for registration of the Will. Therefore, it is submitted that no illegality has been committed by the learned appellate court in allowing the appeal and hence no interference of this Court is required in exercise of powers under section 100 of the Code of Civil Procedure. Therefore, it is requested to dismiss the present Second Appeal.
5.00. Heard the learned advocates appearing on behalf of the respective parties at length.
6.00. At the outset, it is required to be noted that the plaintiff instituted the suit for partition of the suit properties alleging inter-alia that the suit properties are ancestral HUF properties and that he has share in the suit properties. The suit was resisted by the defendants by filing Written Statement by denying that the suit properties are ancestral properties. It was the case on behalf of the defendants that as such the deceased father executed the Will in favour of the defendant No.4 in presence of all brothers. However, the main contention of the appellants was that the deceased had a paralytic attack since last five years and accepting the same, the learned trial court held that the Will was executed when testator mind was not of free mind and was able to understand the consequences. The learned trial court also held that the Will was executed under undue influence of the defendant No.4. While coming to such conclusion, the learned trial court considered the fact that the defendant No.4 went to the advocate, he accompanied the deceased all throughout and even he brought the deceased to the office of the Sub-registrar. The aforesaid finding has been reversed by the learned appellate court on re-appreciation of evidence and the learned appellate court has held that the defendant No.4 has removed the doubts with respect to suspicious circumstances, alleged. While upsetting the finding given by the learned trial court the learned appellate court has re-appreciated the entire evidence on record which is permissible under the provisions of the Code of Civil Procedure. It cannot be disputed that as a first appellate court, the learned appellate court can re-appreciate the entire evidence on record. The learned appellate court also considered the deposition of the persons who attested the Will. While reversing the finding the learned appellate court in para 15 to 17 has observed and held as under :-
“15. The defendant has stated in his evidence that the deceased was suffering from paralysis but he was able to speak in tumbling tongue. It is quite possible that the deceased might be speaking in a tumbling tongue but there is no evidence on record to show that he was not in sound and disposing state of mind at the time of executing the will. It is in the evidence that the deceased Bhikhabhai had an attack of paralysis since last five years. The defendant has stated in his evidence that his leg and hand was not properly working But it cannot be said that he was not in sound and disposing state of mind at the time of executing the will. It is in the evidence of the Defendant that the deceased Bhikhabhai had given instruction to prepare the will to the advocate Jayantibhai who prepared the will. The will not prepared at that time but the draft was prepared by the Jayantibhai and it was typed by the Defendant No.4. The said typed will was produced before the Sub registrar and all the attesting witnesses signed on it in presence of the Sub registrar. It will discuss this evidence later on before that it is required to be decided whether the deceased Bhikhabhai was in sound and disposing state of mind at the time of executing the will at Exhibit 124. The plaintiff had given a public notice in the paper of which deceased Bhikhabhai had given replied in the public notice in the newspaper Paper Paheragir dt.13-12-75 through his advocate Shri J.H.Mehta of Rajpipla. The said notice was drafted by Shri J.H.Mehta on 10-12-75 and published on 13-12-75. The said
notice is produced at Exhibit 120 in which it is clearly mentioned by the deceased that he executed a will of his property on 22-10-75 and he has got a right to execute will of his property. If the deceased Bhikhabhai was not in sound and disposing state of mind at the time of executing the will then he ought to have replied the notice given by the plaintiff which is published in the paper Paherigir which is at Exhibit 120. This very fact goes to show that deceased Bhikhabhai has executed will in sound and disposing state of mind otherwise he ought not to have given this public notice through his advocate. The plaintiff has contended that advocate Jayatntibhai is not examined and so it cannot be said that he has written will according to the say of the deceased. But it is not necessary that advocate Jayantibhai is required to be examined because it is proved from the evidence that the deceased Bhikhabhai has executed will of Exhibit 124. The defendant has also examined Bhupendra Chandubhai Gandhi at Exhibit 122 who has identified the thumb mark of the deceased Bhikhabhai on will at Exhibit 124. He has categorically stated in his evidence that he has identified the thumb mark of Bhikhabhai at Exhibit 124. He has also stated he was able to speak when he executed the will at Exhibit 124. It is also in his evidence that deceased Bhikhabhai had come to the office of registrar in cart and at that time he was in a position to understand. The evidence of this witness is quite natural. He knows deceased Bhikhabhai because he used to take milk from him. This witness is an independent witness and he has no reason to help the defendant because he has categorically stated that he has identified the thumb mark on Exhibit
124. The defendant has also examined Himmatbhai Bhaijibhai at Exhibit 123. It is in his evidence that deceased Bhikhabhai told him that he wants to execute will and he has to sign as attesting witness. It is also in his evidence that he had gone at the office of the Registrar and signed as attested witness. He has also stated that Umedbhai Mavjibhai has also signed as attesting witness in his presence. It is denied that Umedbhai Mavjibhai has signed on blank paper. It is also in his evidence that the deceased was suffering from paralysis but he was able to speak. No doubt he has stated that the will was not written in his presence but the defendant no.4 has stated in his evidence that the father had given instruction to the advocate Jayantibhai in his presence and thereafter will was typed and signed before the Registrar. It is also in his evidence that the deceased has put his thumb mark at Exhibit 124 before Sub-Registrar. It appears from Exhibit
124 that thumb mark was identified witness Bhupendrabhai Chandubhai who examined by the defendant. Moreover Himmatbhai Bhajibhai has also signed as attested witness at Exhibit 124. It is also in the evidence of the defendant and their witnesses the deceased admitted to have executed will before the Registrar. The will is registered by the Registrar office. Thus it appears from Exhibit 124 that will is executed by the deceased Bhikhabhai in presence of attesting witness and also in presence of the Sub-registrar.
16. It appears from the evidence that the deceased Bhikhabhai was suffering from paralysis attack since last five years but merely because he was suffering from paralysis, it cannot be said
that he has not executed will at Exhibit 124 in sound and disposing state of mind. On the contrary, it appears from the evidence that the deceased was in a position to understand everything and was able to speak. Moreover he has given the instruction to the advocate Jayantibhai to draft the will. The said will was drafted by Jayantibhai. If he is not in a position to understand or if he has not executed will in sound and disposing state of mind then he ought not to have asked his advocate Shri J.H. Mehta to give the public notice in which it is clearly mentioned that he has willingly executed will of his property. The said notice is produced at Exhibit 120. Thus it appears from all these evidence that the deceased Bhikhabhai has executed will in sound and disposing state of mind. It is true that he was suffering from paralysis attack. But it cannot be said that the person who are having the paralysis attack cannot execute will in sound and disposing state of mind. It is an admitted fact that the testator i.e. deceased had effect of paralysis on the right hand and leg but he was able to speak in a trumbling tongue. So there is no evidence on record to show that his mind was not properly working and he has not executed will in sound and disposing state of mind. The learned trial Judge has not properly appreciated the evidence in respect of execution of will and wrongly came to the conclusion that the deceased has not executed will in a sound and disposing state of mind.
17. Thus it appears to me from the evidence that the deceased Bhikhabhai has executed will at Exhibit 124 in a sound disposing
state of mind. The plaintiff has also alleged that the deceased Bhikhabhai was under undue influence of defendant No.4. But there is no evidence on record to show that defendant No.4 used undue influence of the deceased for execution of will. No doubt it is in the evidence that the Defendant No.4 had gone to the advocate because he was residing with him. It is also in the evidence that all the brothers were present the deceased gave an instruction to his advocate. It was contended by the plaintiff that the Defendant No.4 has taken active par in execution of will. It is quite natural that the deceased is not in a position to walk and so the Defendant No.4 who is residing just near to him, might have helped him in calling the advocate to take instruction from the deceased. Moreover it is in the evidence that the defendant No.4 had gone to the office of the advocate to take the draft for typing it and it is typed through him. But merely because the defendant No.4 had gone to the office of the advocate to get the draft of will and got it typed. It cannot be said that he has used undue influence for execution of will by the deceased. I have already stated above that the deceased has also given a public notice to the plaintiff through his advocate that he has got a right to dispose of his property by will. So there is no evidence on record to show that the defendant No.4 has used undue influence on the deceased to execute Exhibit 124. The learned Trial Judge has not rightly appreciated this part of the evidence and wrongly came to the conclusion that the defendant No.4 has used undue influence on the deceased Bhikhabhai. I, therefore, decide point Nos.1 and 2 accordingly.”
Considering the above facts and circumstances of the case, it cannot be said that the learned appellate court has committed an error and/or illegality in allowing the appeal and quashing and setting aside the judgement and decree passed by the learned trial court. It appears from the entire evidence that as such the defendant No.4 removed doubts with respect to suspicious circumstances alleged by the plaintiff. Merely because the defendant No.4 had gone to the advocate and/or called advocate and/or he accompanied the deceased father, by that itself it cannot be said that the Will had been executed under the instructions and/or undue influence of the defendant No.4. It appears and it has come on record that the deceased has executed the Will in presence of his sons and the said Will is registered before the Sub-Registrar. Under the circumstances, no illegality has been committed by the learned appellate court in holding the Will genuine.
6.01. Now so far as the reliance placed by the learned advocate appearing on behalf of the appellants, upon the decisions of the Hon'ble Supreme Court referred hereinabove are concerned, as such there cannot be any dispute with respect to proposition of law laid down by the Hon'ble Supreme Court in the said decisions. However, in the facts and circumstances of the case, the said decisions would not be of any assistance to the appellant. In the present case, as stated above, by leading evidence, the defendant No.4 has removed the doubts and considering the overall facts and circumstances of the case, the learned appellate court has rightly held that the Will executed by the deceased is genuine and is not executed under the influence of the defendant No.4.
7.00. In view of the above and for the reasons stated above, present Second Appeal fails and the same deserves to be dismissed and is accordingly dismissed. In the facts and circumstances of the case, there shall be no order as to costs.
[M.R. SHAH, J.] rafik