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IN THE HIGH COURT OF BOMBAY
S.M. Daud, J.
Chandrabhagabai w/o Mahadu Lande Since decd. by her heir ... Appellant.
Versus
Indu Namdeo Lande and others ... Respondents.
First Appeals No. 117 189 of 1974, with First Appeal No. 254 of 1984, decided on 1-9-1989.
Advocates appeared :
C.R. Dalvi, for appellants in F.A. 117 for respondent in F.A. 189 254.
S.G. Page, for respondents 1 and 2 in F.A. 187 with V.G. Herekar for appellant in F.A. 189.
K.Y. Mandlik, for respondent No. 3 in F.A. 117 for No. 2 in F.A. 189.
B.P. Apte, for, appellants in F.A. 254/84.
Section 59 - Burden of proof in respect of will - Testator must understand nature of the act and its effects and extent of property being disposed - He must be of sound mind - Propounded of will should prove it to genuine - In case of any suspicion burden is an propounded to remove suspicion.
The burden of proof in respect of Will is well settled. Shortly stated, the propounder of the Will has to prove not only that it was duly executed and attested as is required by the law, but also that it is genuine. If there are any suspicious features sorrounding the Will the burden lies on the propounder to remove the suspicion.
It is essential to the exercise of such a power that a testator shall understand the nature of the act an its effects: shall understand the extent of the property of which he is disposing - shall be able to comprehend and appreciate the claims to which he ought to give effect, and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been done.
2. The following genealogy will explain the relationship between the parties :
Mahadu (died in 1962)
| Wife Chandrabhagabai
| (died on 27th December, 1976) |
------------------------------------------------
| |
| |
| |
Namdeo (died on 24-3-1969) Jijabai
| |
| |
| |
Two wives
|
|
|
-----------------------
| |
Indu Yamuna
Properties A and B were ancestral in the hands of Mahadu, the other shares of that property being his brother Kisan. Kisan and Mahadu were separate. Property C is a self acquisition of Mahadu. After the passing away of Namdeo, Chandrabhagabai filed a suit against her daughters-in-law alleging that they were enjoying the suit properties to her to exclusion and that she had a 1/3rd share in properties A and B and a 2/3rd share in property C. She wanted her share to be separated and she placed in possession of the separated share. The daughters in-law Indu and Yamuna, denied that Chandrabhagabai had the share she was ascribing to herself. She was not entitled to any share inasmuch as her right to claim such a partition stood extinguished with the passing away of Namdeo. Jijabai who is joined as respondent No. 3 claimed a 1/9th share in properties A and B and a 1/3rd share in property C. Certain issues were raised and the trial Court passed a decree reading as follows :
"1-A) It is hereby declared that in the properties mentioned in para 1-A and 1-B, the plaintiff has got 1/3rd share.
1-B) It is also hereby declared that the properties mentioned in para 1-C of the plaint, the plaintiff has got 2/3rd share.
1-C) It is ordered and decreed that the defendants Nos. 1, 2 and 3 shall put the plaintiff in possession of her shares declared above, by metes and bounds, and the plaintiff may execute the decree, as necessary
1-D) In the circumstances of the case, there shall be no order as to costs. Final decree accordingly (on payment of additional Court fee stamps if and as necessary)."
The decree aggrieved Chandrabhagabai as also Indu and Yamuna. Chandrabhagabai filed First Appeal No. 117 of 1974 while Indu and Yamuna filed First Appeal No. 189 of 1974. During the pendency of the two appeals Chandrabhagabai died. Jijabai's husband Yeshwant @ Damu moved the probate Court claiming that Chandrabhagabai had left a Will bequeathing her entire property to Jijabai and that he had been appointed as the sole executor of the said bequest. This claim was contested by Indu and Yamuna. Jijabai who was impleaded to the probate proceedings admitted her husband's petition. Kisan the brother of Mahadu who was joined as defendant to the suit did not come forward to contest the same. The probate Court sustained the claim made by Yeshwant and that order is assailed in First Appeal No. 254 of 1984 by Indu and Yamuna.
3. Having heard Counsel in all the three appeals the following points arise for determination :
1. What share devolved upon Chandrabhagabai after the demise of Namdeo?
2. Whether Chandrabhagabai bequeathed her estate to Jijabai making her son-in-law Yeshwant a sole executor?
3. What interest do Jijabai, on the one hand and Indu and Yamuna get on the other in the properties A/B and C?
4. What order?
My findings, for reasons given below, are:
1. 5½/9 share.
2. Yes.
3. Jija gets 7/9 and Indu and Yamuna together take 2/9th share in both properties.
4. See order.
4. It is contended by Mr. Page representing Indu and Yamuna in First Appeal No. 189 of 1974 that Chandrabhagabai had a right to seek partition and separate possession until the life-time of Namdeo. This right she did not exercise and during the life-time of Mahadu and Namdeo no partition had taken place. The effect of Namdeo's death was that her right to seek a part
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