2001 Supreme(Bom) 874

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
D.G. Deshpande, J.
Raghupati Janardhan Kathale (since
deceased, through his L.Rs.) others .... Appellants.
Versus
Pundlik Balaji Upadhye (since deceased,
through L.Rs.) others.... Respondents.
Second Appeal No. 308 of 1976 with Second Appeal No. 63 of 1977, decided on 21-9-2001.
Advocates appeared :
P.Y. Deshpande, in Second Appeal No. 308/1976, for appellants and in Second Appeal No. 63/1977, for respondents.
M.V. Masodkar, in Second Appeal No. 63/1977, for appellants.

Headnote:Succession Act, 1925 - Section 63 - Evidence Act, 1872, Section 68 - Second Will - Validity of - A blind person executed earlier Will in 1949 - Second Will contra to that executed in 1958 - Executor of Will died just couple of months thereafter - Veracity of second Will not challenged by appellants - Acceptance of - Held - Court is competent to loose into suspicions circumstances surrounding Will - Second Will amounted revoking of earlier one - Evidence on record as to second Will shows the witnesses not true - Will not properly proved - Cannot be accepted. - Then something very impor- tant has turned out in the evidence of the witnesses of the defendants, which is contrary to the facts because admittedly Pralhad was blind when the first will was executed in 1949. However, DW 1 Rajaram, the testating witness and DW 3 Manikrao the scribe has stated before the Court that Pralhad could see with his eyes. The Appellate Court came to the conclusion that Rajaram was not honest and not a straightforward person. Then there is admission that Manikrao used to write letters on behalf of Pralhad, which shows that Pralhad had confidence in him. It will therefore be clear that the appellant when has appreciated, and every circumstance surrounding the second Will, and has come to the conclusion that the circumstances are sufficient to hold that the second Will is suspicious and, therefore, and only thereafter the Appellate Court has rejected the second Will. Even though its execution was not disputed or denied by the plaintiff.

       The lower Appellate Court rightly found that there were strong suspicious circumstances around the second Will, it has to be held so far as the first substantial question of law is concerned that the second Will of 7th February, 1958 cannot be held to have been duly proved and at any rate since the suspicious circumstances are there around the second Will, the Appellate Court s judgment is required to be uphel

       Succession Act, 1925 - Section 68 - Evidence Act, 1872, Section 6 - Will - Validity of - Will by blind person in favour of his brother with whom he living - Unregistered - Property transferred along with Will - Effect of - Held - Will have effect only after his death - Non registration of Will is of no consequence - Possession of beneficiaries of property transferred not effect essential character of Will. - So far as the substantial question of law is concerned, it was contended by the counsel for the appellant that the first will of 1949 cannot be construed as a will because, it is a disposition of property. The benefi- ciaries being placed on possession on it itself and consequently document to be treated as conveyance and since the document is not a registered document as required by Indian Registration Act, the plaintiffs were liable to be non-suited. Reliance was placed by Mr. Deshpande, counsel for the appellants in the case of Pradeep Kantilal Shroff v. Khorshed Kersap Ago and another reported in 1993 (1) Bom CR 292 : 1993 Mah LJ 1025, wherein it was held that a document intended to be operate immediately on its execution could never be construed as a Will. A document providing for disposition of assets in present would operate as a non-testamentary document. Similar other judgments were cited, but since there cannot be any quarrel about the aforesaid proposition. Court is not considering those other judgments. The question is whether the Will executed by Pralhad in 1949 cannot be termed as a Will and can be termed as a conveyance because of the wording of the Will and my answer to the said questions is in the negative. No doubt, that property was placed in possession of the beneficiaries under the said Will. That does not affect the essential character of the Will, wherein the testator Pralhad has repeatedly clarified that the Will was to take effect after his death. The criteria between the Will and a conveyance is that the Will is to take effect after death and conveyance is to take effect immediately. Therefore, in the instant case, the Will of 1949 clearly shows that it is to take effect after the death of Pralhad. Mere putting the beneficiaries in possession does not change the nature of the Will nor does it take a conveyance as urged by the counsel for the appellant. Therefore the second question of substantial question of law has to be answered in the negative i.e. the document Exhibit 36 has to be taken as a Will and not a conveyance. Consequently, the requirement of registration does not apply.

       Succession Act, 1925 - Section 63 - Will and conveyance - Criteria between - The beneficiaries put into possession of property - Cannot make it a conveyance - Nature of will does not get changed by doing so. - The criterial difference between a Will and conveyance is that the Will is to take effect after death and conveyance is to take effect immediately. Therefore, the Will of 1949 clearly shows that it is to take effect after death of Pralhad. Mere putting the beneficiaries in possession does not change the nature of the will nor does it make a conveyance.

       Succession Act, 1925 - Section 63 - Execution of Will - Tenancy rights in dispute - The competent authority deciding in favour of tenant - Plea of disability and blindness of testator rejected - High Court did not find it a matter worth interference. - Since the Court of competent jurisdiction has given a finding in favour of tenant, the same cannot be interfered with and there is no necessity to go into that aspect as to whether testator was blind and was a person under disability. Therefore, appeal, so far as relates to that part of matter is required to be dismissed.

       Succession Act, 1925empowered to look into it - There is no binding to declare Will as proper and valid if its execution is established - Such approach is not a valid one but contrary to law and disastrous. - A precedent man act upon a Will. It therefore, cannot be permitted to be argued that the Court should not look into the circumstances around the Will and should declare a Will valid as soon as its execution is legally proved. Such an approach would not be a provision of law but would have disastrous consequences.