IMPORTANT POINT
Propounder of the Will has to remove all suspicious circumstances but fact that natural heirs have either been excluded or lesser share has been given to them by itself without anything more cannot be held to be a suspicious circumstance.

Headnote:(i) Indian Succession Act-Section 63-Will law relating to execution and onus of proof and duty cast upon Court while dealing with a case based upon a Will -Propounder of Will has to remove all suspicious circumstances-Fact that natural heirs have either been excluded or a lesser share has been given to them by itself without anything more could not be suspicious circumstance especially in a case where bequest had been made in favour of offspring-Plaintiff appellant in a suit for declaration based her claim on a Will executed by her mother-Suit was against sisters who were married and living separately-Plaintiff had become widow and was residing with parents for last 20 years and after death of her father was looking after mother the propounder of Will -Rejection of Will by 1st appellate Court and affirmed by High Court was not on correct application of legal principles governing proof and acceptance of Will-Findings of trial Court holding Will genuine was liable to be restored. (Paras 6 to 9)
(ii) Hindu Succession Act, 1956-Sections 8 and 14-Suit for declaration based on Will executed by mother of plaintiff in plaintiff s favour-Findings of lower appellate Court that father of plaintiff died in 1957 was based on evidence-Mother of plaintiff inherited suit property in equal share with other legal heirs, plaintiff and defendants-Plaintiff, besides her own share, would be entitled to only share of mother as per that Will. (Para 10)

JUDGMENT

G.P. Mathur, J.-This appeal by special leave has been preferred by the plaintiff against the judgment and decree dated 27.4.1995 of High Court of Bombay by which the second appeal preferred by her was dismissed and the judgment and decree dated 7.4.1993 passed by the District Judge, Thane was affirmed.

2. The appellant Smt. Ramabai filed a suit for a declaration that she had become owner and occupant of the suit property as per the Will dated 5.4.1976 and for injunction for restraining the defendants and their agents, etc. from interfering with her peaceful possession over the aforesaid property. The defendant Nos.1 to 5 are the real sisters of the plaintiff and defendant Nos.6 to 8 are the children of a deceased sister of the plaintiff, namely, Smt. Gajarubai. The suit was filed on the ground that the property in dispute, which is a house and agricultural land, belonged to Madhav who was father of the plaintiff and defendant Nos. 1 to 5 and after his death, the same was inherited by their mother Smt. Yamunabai and she became the owner thereof. Smt. Yamunabai executed a registered Will by which she bequeathed the entire property to the plaintiff. Smt. Yamunabai died on 11.1.1980 and thereafter the plaintiff came in possession over the property in dispute. However, the defendants got the names of all the heirs of Madhav mutated over the property in dispute and thereafter started interfering with the plaintiff s possession thereof. The suit was accordingly filed claiming a decree of declaration and injunction. The defendant Nos.1 to 5 contested the suit on the ground, inter alia, that the property in dispute was ancestral property in the hands of Madhav and after his death Smt. Yamunabai did not become the exclusive owner thereof: that the tenancy rights were inherited by all the heirs of Madhav by succession : that the house was built by father of Madhav and it being ancestral in nature, the same was inherited by all the heirs; that Madhav died in the year 1957 and, therefore, the succession would be governed by Hindu Succession Act and that Smt. Yamunabai did not execute any Will in favour of the plaintiff on 5.4.1976 and the same was not binding upon the defendants. It was specifically pleaded that the share of the plaintiff was only 1/7 and, therefore, no decree for injunction could be passed against the defendants.

3. The parties adduced oral and documentary evidence in support of their case. The learned Civil Judge (Jr. Divn.), Palghar, decreed the suit on 4.2.1988 declaring that the plaintiff had become exclusive owner of the property in dispute on the basis of the Will dated 5.4.1976. He further passed a decree for injunction restraining the defendants from causing any interference in the possession of the plaintiff over the property in dispute. Feeling aggrieved by the aforesaid judgment and decree, defendant Nos.1 to 5 preferred an appeal before the District Judge, Thane, who allowed the same by the judgment and decree dated 7.4.1993 and dismissed the suit. The plaintiff preferred a second appeal which was dismissed by the High Court on 27.4.1995 and the decree passed by the learned District Judge dismissing the suit was affirmed.

4. Shri V.A. Mohta, learned senior counsel for the appellant has submitted that after the death of Madhav which took place on 6.6.1956, his widow Smt. Yamunabai had become the exclusive owner of the entire property. The plaintiff-appellant had become a widow in the lifetime of her parents and was residing with them. It was for this reason that Smt. Yamunabai had executed a Will in favour of the plaintiff and the same was got registered. Learned counsel has further submitted that the learned District Judge and also the High Court have taken a completely perverse view in discarding the Will solely on the ground that Smt. Yamunabai had excluded her other daughters and had given the entire property to the plaintiff. It has been urged that in the facts and circumstances of the case, the co

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2003 Supreme(SC) 758

IMPORTANT POINTPropounder of the Will has to remove all suspicious circumstances but fact that natural heirs have either been excluded or lesser share has been given to them by itself without anything more cannot be held to be a suspicious circumstance.

Cases Referred (6)

IMPORTANT POINT
Propounder of the Will has to remove all suspicious circumstances but fact that natural heirs have either been excluded or lesser share has been given to them by itself without anything more cannot be held to be a suspicious circumstance.