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2014 Supreme(Bom) 1120
IN THE HIGH COURT AT BOMBAY
T.V. NALAWADE, J.
Subhash s/o. Keshav Bhaware - Appellants
Versus
Maroti s/o. Mariba Manawar - Respondents
SECOND APPEAL NO. 8 OF 2008
Decided On : 11th June, 2014
Mr. P.V. Mandlik, Senior Counsel i/b. Mr. Amol Gandhi, Advocate for appellants.
Mr. P.G. Gunale, Advocate for respondent Nos. 1 to 3.
Headnote:Evidence Act, 1872 - Section 32 Dying declaration. Statement of deceased recorded in Revenue proceedings initiated by deceased being a relevant record required to be considered in view of provisions of Section 32 of Act. It was statement recorded by authority and so, due weight needs to be given to it. There is another document at Exh. 38, showing that when the proceeding was started, application was filed probably by father of defendant No. 1 to see that such mutation is not made and then Anjanabai had again informed to the authority that she was sticking to the stand and she wanted to see that the properties were entered in the name of plaintiff No. 1. This mutation was made in the year 1986 and the name of plaintiff No. 1 was entered in the revenue record. It can be said that even if, it is presumed that plaintiff No. 1 is son of ’V’, son of sister-in-law of ’A’, by effecting partition, ’A’ could not have given the property to plaintiff No. 1 as it was her absolute property. It can be said that due to this circumstance that Anjanabai had again approached revenue authority, had applied for cancellation of mutation and the mutation was cancelled.
The document at Exh. 67 is a copy of application given for cancellation of mutation and in that also, it was informed that she had dispute with plaintiff No. 1 Maroti and she wanted to see that the land is not transferred in the name of plaintiff No. 1. There are copies of orders at Exhs. 59 and 69. The contents of written statement also show that plaintiff No. 1 had come in possession of the suit property after the mutation. It is not the case of defendant No. 1 that he or his father were cultivating the suit land during the lifetime of ’A’. A copy of order made by the appellate authority shows that entries were made as per the order dated 24.12.1998. Till that time, the name of defendant No. 1 was there in the revenue record and the name of owner was entered as per the partition. These circumstances need to be kept in mind and the contents of the statement given by ’A’ and application given by her are sufficient to prove on the preponderance of probability that plaintiff No. 1 was her relative and she was staying with him. On the other hand, defendant No. 1 has come with the case that ’S’ had only one issue namely ’T’, but he had no daughter by name ’V’. Defendant No. 1 wants to show that his father was cousin of ’A’. But, no such genealogy is given by defendant No. 1 and plaintiff No. 1 has come with the specific case about genealogy. Thus, the case about the relationship about plaintiff No. 1 with ’A’ is more probable in nature. In view of aforesaid circumstances, the burden was heavy on defendant No. 1 to prove that ’A’ had made Will in his favour. In Section 63 of Indian Succession Act, the procedure for execution of Will is given, which is mandatory in nature. For the proof of execution of Will, it needs to be shown that mandatory procedure was followed.
Succession Act, 1925 - Sections 59 and 63 Proof of execution of Will. Where testatrix of Will, 80 years old, sick and illiterate woman, died within 35 days of making Will therefore in absence of certificate of doctor to show that testatrix was fit to make Will, Will not proved.
1. The appeal is filed against judgment and decree of Regular Civil Appeal No. 27/2003, which was pending in the Court of Ad-hoc District Judge-5, Nanded. The appeal filed by present respondents/original plaintiffs against the judgment and decree of Regular Civil Suit No. 75/2001, which was pending in the Court of Civil Judge, Junior Division, Kinwat is allowed by the First Appellate Court and the suit is decreed in favour of plaintiffs. Both the sides are heard.
2. R.C.S. No. 75/2001 was filed in respect of land Gat Nos. 57, 58 and 59 situated at village Murli. Relief was claimed for declaration of a document of Will executed in favour of one Keshav Bhaware as null and void. Declaration was claimed that aforesaid three properties belong to plaintiffs and relief of possession of these properties was also claimed.
3. It is the case of plaintiffs that one Sambhaji Bhaware was owner of aforesaid lands. It is contended that Sambhaji had a son by name Thakaji and one daughter by name Vithabai. It is contended that the property, initially bearing Survey No. 30, came to the share of Thakaji and after his death, the property came to his daughter by name Anjanabai. It is contended that the property was standing in the name of Anjanabai till her death and she died issueless on 2.9.1998. It is the case of plaintiffs that plaintiff No. 1 is son of Vithabai, who was daughter of Sambhaji and plaintiff Nos. 2 and 3 are sons of plaintiff No. 1. It is contended that after the death of Anjanabai, they became owners of the suit property in view of their relationship with Anjanabai.
4. It is the case of plaintiffs that after the death of husband, Anjanabai started living in village Murli and plaintiffs were maintaining her and they were cultivating the suit lands. It is contended that in the year 1985 Anjanabai made application to Tahsildar Kinwat and she requested to enter the name of plaintiff No. 1 on the basis of partition. It is contended that the name of plaintiff No. 1 was entered in the ownership column. It is contended that the defendants and father of defendant No. 1 Keshav had no concern whatsoever with the property, but, the father of defendant No. 1 had objected to the mutation made in favour of plaintiff No. 1. It is the case of plaintiffs that in the mutation proceeding, Anjanabai had given statement in favour of plaintiff No.1 and she had informed that she was living with plaintiff No. 1 and plaintiff No. 1 was maintaining her.
5. It is the case of plaintiffs that when plaintiff No. 1 was out of station for some time, behind his back, father of defendant No. 1 made a false application in the name of Anjanabai and requested to cancel the mutation made in favour of plaintiff No. 1 on the basis of application given by Anjanabai. It is the case of plaintiffs that on 7.3.1986 Anjanabai informed to the revenue authority that the application was false and she had not put her thumb impression on the application filed by father of defendant No. 1. It is contended that in view of these circumstances, the mutation was made by making an order and name of plaintiff No. 1 was entered in the revenue record as owner.
6. It is the case of plaintiffs that plaintiff No. 1 partitioned the property amongst himself and his two sons and entries were made in the revenue record accordingly. It is contended that in the year 1992, when plaintiff No. 1 was taking care of his wife at Yavatmal, defendant No. 1 separated Anjanabai from plaintiff No. 1 and he managed to file appeal against the order of mutation made in favour of plaintiff No. 1. It is contended that S.D.O. allowed the appeal and the mutation was cancelled. It is contended that the said decision was challenged in appellate authority, but the appeal was also rejected. It is contended that further appeal was also filed, but due to illness of wife, plaintiff No. 1 could not pursue the appeal and it was dismissed in default by Commissioner, Aurangabad.
7. It is the case of plaintiffs that a
