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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH
MANISH PITALE, J.
Anil Digambar Dhumal – Appellant
Versus
Sunil S/o Digamber Dhumal & Ors. – Respondents
Second Appeal (Sa) No. 477 of 2015
Decided On : 05-05-2018
Civil Procedure Code, 1908 - Section 99 - Order 41 - Rule 27 - Investigation - Claim of appellant - Appellant and respondents are siblings being children original plaintiff suit property is a house called Plot Old New at Ramakrishna Math Nagpur respondent has been in possession of an area meters on second floor of suit house and he has been using an attached bathroom- father of parties was a respected person in society being proprietor of publishing house “Nagpur”- It was case plaintiffs in suit for possession filed before Court of Civil Judge Junior Division Nagpur (trial Court) that said had executed a Will Deed (Exh-33) wherein he had made arrangements for taking care of aforesaid publishing house “Nagpur Prakashan” as also steps to be taken in respect of current accounts held by him and manner in which suit house property would devolve after his death- In Will Deed original of which was produced before–Held, Plaint and affidavit in support plaint and affidavits in evidence not satisfying requirements of Code of Civil Procedure it is clear from record that objections in that regard were not raised on behalf of respondent at any stage- In this context learned Counsel appearing on behalf of appellant is justified in submitting that at worst these were irregularities that could have been cured if objection in that regard had been raised on behalf of respondent earliest opportunity- It was correctly submitted that parties having gone to trial and having led evidence to prove their respective stands at second appellate stage such an objection pertaining to alleged defects in verification and affidavit ought not to be entertained service in this situation which provides that no decree should be reversed or modified for error or irregularity not affecting merits or jurisdiction- In present case at worst aforesaid alleged defective verification and affidavits can be said to be mere irregularities not affecting merits and therefore only on basis of such alleged irregularities it cannot be said at this stage that suit filed by original plaintiff or evidence led on behalf of original plaintiff and appellant could not have been considered by Courts below- Hence said questions are answered against respondent and in favour of appellant Court has come to conclusion that there were indeed suspicious circumstances surrounding aforesaid Will Deed dismissal of suit by Courts below does not deserve any interference- There has been reference made to a number of judgments on behalf of contesting parties but all said judgments are not referred to or discussed at length because this Court has come to conclusion on basis of evidence and material on record that findings rendered regarding suspicious circumstances surrounding Will Deed indeed show that suit for possession filed on behalf of original plaintiff and continued by appellant herein could not have been decreed - Appeal dismissed
Certainly. Based on the provided legal document, here are the key points summarized:
The appellant challenged the dismissal of his suit for possession based on a Will dated 25.07.1993 executed by his father, which was disbelieved by the courts below due to surrounding suspicious circumstances (!) (!) .
The courts found that the Will was surrounded by suspicious circumstances because it was not disclosed or acted upon for a long period after the father's death, and there were doubts about the execution and genuineness of the Will, including issues related to the purchase of stamp papers and the mental fitness of the testator at the time of execution (!) (!) (!) .
The appellant's case was that the Will was properly executed and proved, with evidence from attesting witnesses, and that the suspicious circumstances cited were either misinterpreted or not sufficient to disbelieve the Will (!) (!) .
The courts below held that the delay in disclosure of the Will (about 15 years) and certain other suspicious circumstances, such as the purchase of stamp papers and the mental condition of the testator, created reasonable doubt about the validity of the Will, leading to the dismissal of the suit (!) (!) .
The appellate court also noted that the Will was not communicated to the family or the respondent within a reasonable time, which was considered a suspicious circumstance, and that the Will was brought to light only after a legal notice was issued in 2009 (!) (!) .
The appellant argued that the evidence demonstrated the Will was validly executed and that the delays and circumstances were not suspicious, and that the courts below erred in placing emphasis on alleged irregularities and delays (!) (!) .
The respondent contended that the findings of the courts below were based on proper appreciation of the evidence, and that the suspicious circumstances—particularly the delay in disclosure—justified disbelieving the Will, and that the suit was barred by limitation (!) (!) .
The courts ultimately concluded that the suspicious circumstances surrounding the Will, including the long delay in its disclosure and doubts about its execution, were sufficient to disbelieve its genuineness. As a result, the suit for possession based on that Will was not maintainable, and the appeal was dismissed (!) .
Additionally, issues regarding procedural defects such as verification and affidavits were considered irregularities that did not affect the merits of the case, and thus did not impact the validity of the courts' findings (!) .
The overall reasoning emphasized that the long delay in revealing the Will, coupled with other suspicious circumstances, undermined its credibility, and the courts' findings on these points were upheld, leading to the dismissal of the appeal (!) .
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The appellant herein has challenged dismissal of suit for possession filed by his mother (original plaintiff) and then continued by him seeking recovery of possession of suit property, on the basis of Will Deed dated 25.07.1993 executed by the father of the appellant. The Courts below have disbelieved the Will as being surrounded by suspicious circumstances.
2. The appellant and the respondents are siblings, being children of Digamber Dhumal and Shantabai Dhumal (the original plaintiff). The suit property is a house called “Shanti Kutir” located on old Nazul Plot Old No. 133, New No.2 at Ramakrishna Math, Dhantoli, Nagpur. The respondent No.1 has been in possession of an area of 3.20 meters x 3.20 meters on the second floor of the suit house and he has been using an attached bathroom. The father of the parties i.e. Digamber Dhumal was a respected person in the society, being the proprietor of publishing house “Nagpur Prakashan”. It was the case of the plaintiffs in the suit for possession filed before the Court of Civil Judge, Junior Division, Nagpur (trial Court) that said Digamber Dhumal had executed a Will Deed dated 25.07.1993 (Exh.33) wherein he had made arrangements, interalia, for taking care of the aforesaid publishing house, “Nagpur Prakashan” as also steps to be taken in respect of current accounts held by him and the manner in which the suit house property would devolve after his death. In the Will Deed, the original of which was produced before the trial Court, it was stated that Digamber Dhumal was not happy with respondent No.1 for the manner in which he had disrespected his father and he had quarreled with other family members. On this basis, it was specified in the Will that respondent No.1 would not be entitled to any share in the suit house property and that if he vacated the same, he would be given a sum of Rs.25,000/-. The appellant herein was given the responsibility of repaying a loan specifically mentioned in the Will Deed and he was given the responsibility of taking forward the business of the publishing house. The Will Deed effectively excluded respondent No.1 from right and interest in the suit house property.
3. It is an undisputed fact that said Digamber Dhumal died on 17.04.1994. It is also an undisputed fact that when the said Will Deed was executed, said Digamber Dhumal was suffering from paralysis. The Will Deed was executed in the presence of attesting witnesses. It was the case of the plaintiff that despite the execution of the said Will Deed by Digamber Dhumal and even after his death, the respondent No.1 continued to occupy the aforesaid portion of the suit house property and that he had taken electric connection from adjoining tenanted part of the suit house property, without having a separate electric meter. The plaintiff further came with the case that there was day today nuisance of respondent No.1 in the suit house property and that, therefore, she was constrained to issue legal notice dated 20.07.2009, through advocate asking respondent No.1 to deliver possession of the suit house property in his occupation. As respondent No.1 failed to vacate the said portion within a period of 15 days as required under the aforesaid notice, the mother of the present appellant, as the original plaintiff filed Regular Civil Suit No. 1015 of 2009 being a suit for possession on 14.12.2009, seeking specific direction against respondent No.1 to deliver vacant possession of the aforesaid portion of the suit house property occupied by him.
4. In the said suit, the respondent No.1 was arrayed as defendant No.1 while the other siblings were arrayed as defendant Nos.2 to 9. This included Shalini Dattatraya Deepak (defendant No.9) who was daughter of the deceased Digamber Dhumal from his first wife. The defendant Nos.2 to 4 and 6 to 8 filed a common written statement on 28.02.2012 stating that the original plaintiff had rightly filed the suit for possession, seeking eviction of respondent No.1 on the bas
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