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IN THE HIGH COURT OF BOMBAY
L. M. Paranjpe J.
RANGU VITHOBA and others - Applicants.
V.
RAMBHA DINA and another - Respondents
Advocate Appeared
For appellants-No N.S. Nandedkar.
For respondent No. I-V. R. B. Deopujari.
Respondent No. 2 was not represented.
WILL - Execution and attestation - Presumption under section 90 of the Evidence Act - Burden of proof - Discretion of the trial Court - Interference by the appellate Court.
Fact of the Case:
The plaintiff filed a suit for partition and separate possession of her one-third share in the property left by her father, Bondku, who had executed a registered will in her favor and another daughter, Kewna, who had since died issueless. The defendants, Bondku's other two daughters and their sons, contested the suit, denying the execution and attestation of the will and alleging that Bondku was not in a disposing state of mind at the time of its execution.
Finding of the Court:
The trial court held that the execution of the will was not proved and dismissed the plaintiff's claim. The appellate court reversed the trial court's decision, presuming the due execution, attestation, and mental capacity of Bondku to execute the will under section 90 of the Evidence Act.
Issues: 1. Whether the plaintiff had discharged the burden of proving the execution and attestation of the will. 2. Whether the appellate court was justified in interfering with the trial court's discretion in not presuming the genuineness of the will under section 90 of the Evidence Act.
Ratio Decidendi: 1. The burden of proving the execution and attestation of a will lies on the person propounding it. The propounder must prove that the will was signed by the testator, that the testator was in a sound and disposing state of mind at the relevant time, that he understood the nature and effect of the dispositions, and that he put his signature to the document of his own free will. 2. The court has a discretion to presume the genuineness of a document that is thirty years old and produced from proper custody under section 90 of the Evidence Act. However, this discretion should be exercised judicially, and the court should consider all the circumstances of the case before deciding whether to apply the presumption. 3. In the present case, the appellate court erred in interfering with the trial court's discretion in not presuming the genuineness of the will. The trial court had given detailed reasons for its decision, and the appellate court's reasons for overturning that decision were not justified.
Final Decision: The appeal was allowed, the appellate court's judgment and decree were set aside, and the trial court's decree was restored.
2. The suit property was held by one Bondku, who was the last burviving member of the family. He died on 10-8-1957, at the age of 95, leaving behind him three daughters-the plaintiff Rambha, defendant No. 4 Rangoo, and defendant No. I Bangoo. One other daughter Kewna had died issueless during the life-time of Bondku. The defendant No. 4: Rangoo has two sons-Nathu, defendant No.5 and Dayaram, defendant No.6. The defendant No.1 Bangoo, who is the youngest of the daughters, has two sons-Ragho, defendant No.2, and Sitaram, defendant No.3, and a daughter Vithabai. This Sitaram son of Bangoo died without any heirs and his name was struck off from the suit. Bondku had left the property in suit at the time of his death.
3. The plaintiff-respondent Rambha filed her suit on the following allegations: Bondku got the plaintiff l~ambha married to his sisters son who did not have any property. The other two daughters, Bangoo and Rangoo, were well-placed. Bondku brought the plaintiff and her husband to reside with him and they looked after his property and resided with him till his death in 1957. Bondku executed a registercd will on 23-6-1926 in respect of the entire property in favour of the plaintiff and the other daughter Kcwna. Bondku was in full possession of his senses and was aware of his interests at the time of the execution of his will with regard to his personal property as detailed in the plaint. Since the other legatee Kewna hall predeceased Bondku, the property which was given to her by will would be shared by the plaintiff and the other two sisters equally. The defendants had wrongfully dispossessed her. Hence the claim for possession of the immovable property which was willed away in favour of the plaintiff by Bondku and for partition of the property of Kewna and separate possession of the plaintiffs share there in.
4. The defendants contested the suit on the following allegations: The plaintiff and her husband forced their presence and residene on Bondku without his free consent, by taking ad vantage of his continuous ill health and continuous sickness." Due to the infirmity and weak health of Bondku, the plaintiff and her husband were managing Bondkus property. The execution of the will dated 23-6-1926 was denied. It was also denied that Bondku was in full senses at the time of the execution of the will. The plaintiff was not in possession of the property after Bondkus death either in pursuance of the will or in any other manner. Bondku had no knowledge of the will because during his life-time, he had allowed his three daughters to take equal shares in cultivation. The plaintiff had no cause of action to claim the alleged relief in the suit on the strength of the will which is denied by the defendants as it was not validly and legally executed. The plaintiff cannot derive any title in pursuance of the alleged will. Even if it were proved that Bondku had made his thumb mark on the will, it must have been executed without his free consent and must have been got executed fraudulently without Bondkus knowledge and consent. The plaintiff was well-placed, whereas the defendant No. 4 wall not sufficiently provided for and the plaintiff was not entitled to a share in the father’s l property.
5. The learned trial Judge held that the execution of the will was not proved and the plaintiff was not entitled to claim anything on the strength of that will. He however decreed the claim of the plaintiff for possession of her one-third share in the whole property left by her father. Being aggrieved by this decision, the plaintiff appealed. The learned District Judge found fault with the learned trial Judge for not presuming under section 90 of the Evidence Act that the will was du
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