IMPORTANT POINT
The Courts below adopted an approach not permitted by law in holding that the impugned Will was not proved.

Headnote:(i) Proof of Will-Indian Succession Act, 1925-Section 63 and Indian Evidence Act, 1872-Section 68-(See para 8).
       (ii) Will by B in favour of C (her sister s daughter-only heir)-Registered-Attested-Testator s competence doubted by Courts below on challenge by a stranger trespasser on grounds of aged testator without proof of medical evidence-Testator dying two days after execution-Registration done at home of B-C not examined but C s son examined-Attesting witnesses were interested witnesses-Whether proper? (No)-Judgment given in the earlier suit on same will is relevant under Sections 11, 13, 35 of Evidence Act.
       Held : Having heard the learned counsel for the parties, we are of the opinion that the findings of the trial court and the first appellate court as also of the High Court are vitiated for adopting an approach not permitted by law and because of overlooking the material and relevant legal considerations. (Para 5)
       The factum of will having been executed by Bhagubai in favour of Chingubai, the sister s daughter, bequeathing the suit property is specifically alleged in the plaint. In the written statement excepting for a bare denial, there is no other pleading raised questioning the same disposing capacity of Bhagubai at the time of execution of will. It is true that the plaintiff Chingubai did not appear in the witness box but that is because she was indisposed. Her son has appeared in the witness box. The two attesting witnesses on account of being known to Chingubai s son, being his classmates, were known to the family, and therefore, were natural witness to be called to attest the execution of will. On account of their acquaintance with the family, they could have naturally known and identified executant. Merely because of being classmates they would be interested in obliging their classmates mother so as to benefits her and go to the extent of falsely deposing is too far fetched an inference to draw. The contents of the will, coupled with oral evidence, show that for last 25/30 years, Chingubai had taken care of Bhagubai and it was due to love and affection of Bhagubai for Chingubai that the former was bequeathing her properties in favour of Chingubai, Chingubai is none else that Bhagubai s sister s daughter and probably the only heir. There is nothing to suggest that Bhagubai had anyone else than Chingubai, who could be a closer heir or relation of Bhagubai and with whom Bhagubai could have spent her last days. No other relation of Bhagubai, who would have succeeded to the estate of Bhagubai if the will would not have been there, has come forward to dispute or to object to the will. The challenge is thrown by a stranger to the family and one who has trespassed upon the property. (Para 10)
       No submission raising the plea of res judicata was made before any of the courts below or the High Court. We do not think such a plea can be permitted to be raised before this Court for the first time and at the hearing. However, still it cannot be lost sight of that the earlier litigation was between the same parties wherein this very will was relied on by this very plaintiff in support of his title to the property in dispute therein. The plaintiff s right to sue based on this very will was claimed and asserted in the earlier suit and was upheld though denied by this very defendant. These facts and finding are recorded in the previous judgment and have relevance in the present suit. [Also see, Tirumala Tirupati Devasthanams vs. K.M. Krishnaiah - (1998) 3 SCC 331]. Thus away from res judicata the judgment given in the earlier suit is relevant piece of evidence under Sections 11, 13 and 35 of the Evidence Act and has a material bearing on the controversy arising for decision in the present suit. This material aspect has been completely overlooked by the High Court and the courts below. A relevant and material piece of documentary evidence, of undoubted veracity, has been ignored and that is a serious error of law having a vitiating effect on the finding on most vital issue in the case. (Para 14)
       Other reasonings of the trial court and the first appellate Court, for holding the will not proved, too, to say the least, verge on absurdity, Bhagubai died a day after the execution and registration of the will. There is nothing to show that Bhagubai was physically or mentally incapacitated from executing the Will. On the one hand, the courts below have questioned the propriety of the Sub-Registrar having come to the house of Bhagubai for registering the Will on the ground as to why Bhagubai could not have gone to the office of Registrar on an assumption that she was fit to do so and yet the mental capacity of Bhagubai to execute the will has been doubted. The two attesting witnesses have been held to be interested on the ground of their being classfellows of Chingubai s son and on the other hand, it has been doubted whether they would have known and identified the executing. There is nothing to doubt the mental and physical capacity of Bhagubai but the same has been suspected because of "complete absence of any medical evidence, of a doctor which would show that the testator was in a sound and disposing state of mind". There is no rule of law or of evidence which requires a doctor to be kept present when a will is executed. In short, the courts below have allowed their findings to be influenced by such suspicion and conjectures as have no foundation in the evidence and have no relevance in the facts and circumstances of the case and unwittingly allowed their process of judicial thinking to be vitiated by irrelevant reasonings and considerations. The weighty factor that the factum of execution of will by Bhagubai was being denied by a rank trespasser without raising any specific pleadings and the fact that no relation of Bhagubai has chosen to lay a challenge to the will, have been simply overlooked. In our opinion, the High Court ought not to have sustained such a perverse finding which would result in the property of a rightful owner being lost to a trespasser. (Para 15)
       Held finally : The appeal is allowed. The judgment and decree of the Trial Court as upheld by the first Appellate Court and the High Court are set aside. Instead the suit filed by the plaintiff is directed to be decreed. The plaintiff is declared to be the owner of the suit property and entitled to recovery of possession from the defendant. The defendant shall hand over vacant and peaceful possession of the suit property to the plaintiff within a period of two months from today failing which the plaintiff shall be entitled to execute the decree and recover possession. The plaintiff - appellant shall also be entitled to costs throughout. (Para 16)

JUDGMENT

R.C. Lahoti, J.-The plaintiff, who has lost in a suit for declaration of title and issuance of preventive injunction, in the alternative for recovery of possession, from the courts below as also the High Court, has filed this petition seeking special leave to file appeal.

2. Leave granted.

3. The suit property is situated at Shaniwar Peth, Satara in the State of Maharashtra. It bears C.T.S. No. 876 and admeasures 218 sq. meters. It is not disputed between the parties that the suit property was initially owned by late Bhagubai who expired on 24th September, 1963. According to the plaintiff, late Bhagubai executed a registered deed of will on 22nd September, 1966 in favour of Chingubai, who is none else than her own sister s daughter. Having inherited the property under the will of Bhagubai, Chingubai transferred her title and possession to the plaintiff under a registered deed of sale dated 24th September, 1976 for a consideration of Rs. 5000/-. The suit was filed some time in the year 1976 itself alleging that defendant was threatening to dispossess the plaintiff and was claiming title in herself. The defendant, in her written statement, submitted that the property had come to vest in one Babu Kanha Mali who had orally gifted the same to the defendant 35 or 40 years prior to the institution of the suit and therefore the title in the suit property vested in her. A plea of plaintiff s title having been extinguished and the same having vested in the defendant by adverse possession was also raised in the written statement. The trial court found the will dated 22nd September 1963 not proved, and so the plaintiff having not acquired any title under the sale deed executed by Chingubai in his favour, and therefore, directed the suit to be dismissed.

4. The plaintiff preferred an appeal. He also sought for an amendment of the plaint so as to seek relief of recovery of possession in alternative to the relief of preventive injunction, in the event of the defendant being found in possession of the suit property. The amendment was allowed. However, on merits the appellate court affirmed the finding of the trial court that the will dated 22nd September 1963 was not proved. This finding has been maintained by the High Court while dismissing the second appeal preferred by the plaintiff. It is pertinent to note that before the High Court, the learned counsel for the defendant did not dispute that the defendant s title in the suit property was not proved. The learned counsel for the defendant also gave up the plea of acquisition of title by adverse possession by the defendant. It was conceded before the High Court that the title in the suit property undisputedly vested in Bhagubai to begin with and the sale deed dated 24th September, 1976 by Chingubai in favour of the plaintiff was also proved. The only question surviving for consideration was whether the approach of the courts below while recording a finding of non-proof of the will dated 22nd September, 1963 allegedly executed by Bhagubai in favour of Chingubai was vitiated by error of law and in substance that was the substantial question of law on which the second appeal was admitted for hearing by the High Court. The same question arises for consideration before this Court.

5. Having heard the learned counsel for the parties, we are of the opinion that the findings of the trial court and the first appellate court as also of the High Court are vitiated for adopting an approach not permitted by law and because of overlooking the material and relevant legal considerations.

6. The High Court has in its judgment summed up the so-called suspicious circumstances centering around the execution of the will, and found by the courts below, as under:-

1. At the time of execution of the will, late Bhagubai was about 80 years of age and there is complete absence of any medical evidence to show sound and disposing state of mind of the executant;

2. The will

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2002 Supreme(SC) 27

IMPORTANT POINTThe Courts below adopted an approach not permitted by law in holding that the impugned Will was not proved.

Cases Referred (1)

IMPORTANT POINT
The Courts below adopted an approach not permitted by law in holding that the impugned Will was not proved.