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2019 Supreme(Bom) 1143
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.C. GUPTE, J.
Naval Raghunath Adsul - Plaintiff
Versus
Deepak Raghunath Adsul & Ors. - Defendants
Testamentary Suit No. 52 of 1995 In Testamentary Petition No. 689 of 1994
Decided On : 07-08-2019
For the Appellant : Ms. R.C. Nichani.
For the Respondent: Mr. R.V. Govilkar with Ms. Shaba N. Khan, Mr. H.T. Pawar with Mr. Yadnesh Aher.
Headnote:
Registration Act – Section 34(3),40 and 41 - Testamentary suit - Will - Testamentary suit seeks letters of administration with will annexed to property and credits of deceased, who died - Deceased was a Hindu - According to the Plaintiff, deceased had made his last will and testament - Will was registered with Sub-Registrar of Assurances under Registration - Plaintiff is a son of deceased and claims to be the sole beneficiary under the will, which does not name any executor - Assets of the deceased disclosed in the plaint include a plot of land along with a house standing thereon and monies in bank and household goods - Deceased was survived by two sons, one of them being Plaintiff and other Defendant No.1, and three daughters, one of them being Defendant No.2, and three granddaughters - Defendant No.2 has been deleted from the cause title after her death - Defendant Nos.3(a) to 3(d), who are her heirs, have been added as parties to the suit - Defendants contest the will claiming it to be forged, bogus and fabricated - Defendants dispute signature of deceased on will and also submit that, even assuming that signature belonged to him, deceased was not aware of contents of will and did not understand their implication - Whether the Plaintiff proves that the Will is genuine and duly executed Last Will and Testament of deceased – Held, there is no contrary proof tendered by Defendants to dislodge Plaintiffs case on any of these issues - Issue Nos.1, 3 and 4 are, accordingly, answered in favour of the Plaintiff - So far as Issue No.2 is concerned, only evidence of purported family arrangement is a bare word of Defendant Nos.1 and 3(b) and even there, there are no particulars as to how, when and in what manner alleged family arrangement was made - Besides, and even otherwise, it is legally not possible to create rights in favour of anyone in respect of a self-acquired immovable property by way of a family arrangement - Any such rights, during the lifetime of the owner, can only be created by a registered instrument of transfer - Very essence of a family arrangement is compromise of pre-existing rights, actual or asserted, by members of a family by agreeing to a distribution of family wealth - That element is completely missing in the present case - Neither the Plaintiff nor Defendant No.1 or any of their sisters has any pre-existing right to the residential house, either actual or even asserted - There is no question of any compromise or arrangement between them - Issue Nos.4 is, accordingly, answered against Defendants and in favour of Plaintiff - Testamentary suit is decreed by ordering grant of Letters of Administration with the will annexed of property and credits of deceased in favour of the Plaintiff, having effect throughout the State of Maharashtra – Order accordingly.
JUDGMENT :
1. The testamentary suit seeks letters of administration with the will annexed to the property and credits of deceased Raghunath Maruti Adsul, who died in Mumbai on 26 December 1992.
2. The deceased was a Hindu. He was residing in Mumbai at the time of his death. According to the Plaintiff, the deceased had made his last will and testament at Mumbai on 8 January 1991; the will was registered with the Sub-Registrar of Assurances under Registration No.P/64/91 of Book No.III, 142 to 144. The Plaintiff is a son of the deceased and claims to be the sole beneficiary under the will, which does not name any executor. The assets of the deceased disclosed in the plaint include a plot of land along with a house standing thereon at Khar in Mumbai and monies in bank and household goods. The deceased was survived by two sons, one of them being the Plaintiff and the other Defendant No.1, and three daughters, one of them being Defendant No.2, and three grand daughters (daughters of the deceased's predeceased daughter). Defendant No.2 has been deleted from the cause title after her death. Defendant Nos.3(a) to 3(d), who are her heirs, have been added as parties to the suit.
3. The Defendants contest the will claiming it to be forged, bogus and fabricated. The Defendants dispute the signature of the deceased on the will and also submit that, even assuming that the signature belonged to him, the deceased was not aware of the contents of the will and did not understand their implication. The Defendants also question the mental capacity or disposing state of mind of the deceased to comprehend such implication. According to them, at the time of making of the purported will, the deceased had suffered a paralytic stroke; he had lost his memory and was not physically and mentally fit to execute the will. Defendant No.2 also claims that their deceased father Raghunath had, during his lifetime, made a family arrangement/partition, allotting the ground floor to Defendant No.1 and the first floor to the Plaintiff.
4. Based on the pleadings of the parties, the following issues have been settled by the Court :
1. Whether the Plaintiff proves that the Will dated 8th January 1991 is genuine and duly executed Last Will and Testament of deceased Raghunath Adsul?
2. Whether Defendant No.2 proves that the deceased father had made family arrangement/partition in the year 1982 thereby allotting the ground floor to the Defendant No.1 and first floor to the Plaintiff?
3. Whether Defendants prove that the alleged Will dated 8th January 1991 executed by deceased Raghunath Adsul is forged and fabricated document?
4. Whether Defendants prove that the deceased Raghunath Adsul was not of a sound condition of mind during the year 199091?
5. What order?
5. In addition to documentary evidence, the Plaintiff has led oral evidence of himself as the propounder of the will and of one A.K. Mudhawa, a fellow member of the cooperative housing society where the Plaintiff and Defendant No.1, along with their deceased father, were residing. The Defendants have, in addition to documentary evidence, examined Defendant No.1 (son of the deceased testator), Defendant No.3(b) (son of deceased Defendant No.2, daughter of the deceased testator), one Arvind Gajanan Pendse and one C.S.R. Murthy, a handwriting expert.
6. The central controversy in the suit, covered by Issue Nos.1, 3 and 4, is whether the deceased Raghunath had duly executed the will set up by the Plaintiff. Execution of a will, it is trite to say, must be proved, in the first place, by offering proof of the signature of the deceased and the two attesting witnesses in keeping with Section 63 of the Indian Succession Act. Even if it is proved, however, that the deceased had in fact signed the instrument, that circumstance alone is not sufficient to prove the execution of the will, for the deceased may not have known that what he has signing was a testamentary instrument; he may not have known the contents of the instrument; he may
