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2020 Supreme(Bom) 494
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT NAGPUR BENCH
Vinay Joshi, J.
Kewalram - Appellant
Versus
Khemchand - Respondent
Second Appeal No. 102 of 2018
Decided On : 31-01-2020
T.G. Bansod, Advocate, Deoul Pathak, Advocate
The main legal point established in the judgment is the requirement to prove the genuineness of Wills in property disputes, the burden of proof in establishing marriage prior to the commencement of the Hindu Marriage Act, 1955, and the validity of testamentary documents in determining ownership rights.
Headnote:
Will - Property Dispute - Hindu Succession Act, 1956 - Indian Evidence Act, 1872 - Indian Succession Act, 1925
Fact of the Case:
The case involved a dispute over the ownership of a property described in the plaint. The plaintiffs claimed ownership based on two Wills executed by Rama and Gunabai, while the defendants claimed ownership based on a Will allegedly executed by Baijabai. The Trial Court held in favor of the plaintiffs, declaring them as the owners of the entire suit property. The First Appellate Court partially allowed the appeal, declaring the plaintiffs as owners of only half share of the suit property. The plaintiffs then filed a second appeal challenging the decision of the First Appellate Court.
Finding of the Court:
The Court found that the plaintiffs had failed to prove the theory of adoption of Plaintiff No.1 Kewalram by Rama. The Trial Court did not record a categorical finding regarding the genuineness of the Will of Rama. However, it held that plaintiffs acquired ownership on the strength of the Will executed by Gunabai. The First Appellate Court discarded the theory of adoption and both Wills allegedly executed by Rama and Gunabai. It held that Baijabai married Rama prior to the commencement of the Hindu Marriage Act, 1955, and therefore, Gunabai and Baijabai both took an equal share in the suit property after Rama's demise. The Court also found that the plaintiffs were in peaceful possession of the entire suit property.
Issues: The main issues revolved around the adoption of Plaintiff No.1 Kewalram, the execution of Wills by Rama, Gunabai, and Baijabai, and the legal status of Baijabai. The Court also considered the burden of proof in establishing marriage prior to the commencement of the Hindu Marriage Act, 1955, and the validity of the Wills executed by Rama and Gunabai.
Ratio Decidendi: The Court held that the plaintiffs failed to prove the theory of adoption and the genuineness of the Will executed by Rama. However, it found that the Will executed by Gunabai was valid and that the defendants failed to prove that Baijabai was legally married to Rama. Consequently, the Court declared the plaintiffs as the owners of the entire suit property.
Final Decision: The second appeal was allowed, and the judgment and decree passed by the First Appellate Court were set aside. The decree passed by the Trial Court, declaring the plaintiffs as the owners of the entire suit property, was restored.
JUDGMENT
Vinay Joshi, J. - Heard both learned counsel appearing for parties.
2. Being dissatisfied by the judgment and decree passed in Regular Civil Appeal No. 135/2006, original plaintiffs came in second appeal. Respondents Nos. 1 to 3 were appellants in first appeal as well as defendants of original suit. For the sake of convenience, the parties are referred as per their status before the Trial Court.
3. Regular Civil Suit No. 19/1998 was for declaration of title over suit land described in para 1A, 1B of the plaint and for perpetual injunction to restrain defendants from interfering into plaintiffs peaceful possession.
4. Shrown unnecessary details, the facts can be stated as follows.
5. The suit property was comprising of various pieces of agricultural land and house property as described in para 1A and 1B of the plaint. Though the property described in para 1C was included in plaint, however, plaintiffs have claimed relief about property described in para 1A and 1B of the plaint which was referred as suit property. The entire suit property was initially owned by one Rama Ramteke. Plaintiff No. 1 Kewalram was nephew of original owner Rama. One Gunabai was legally wedded wife of Rama. Since couple was issueless, somewhere in the year 1965 Rama brought a widowed lady namely Baijabai to reside with him. Moreover, Rama also brought his nephew Kewalram (Plaintiff No.1) in his childhood to reside with him as a "Balpose" (nurtured from childhood). As such, Rama, his wife Gunabai, Plaintiff No. 1 Kewalram and a widowed lady Baijabai were residing together till Rama''s death of the year 1981. Matrimonial relationship of Rama with Gunabai was subsisting till Rama''s death. Rama never remarried to Baijabai at any point of time. Rama being issueless, had bequeathed suit property to plaintiffs by executing Will dated 17.06.1981.
6. After demise of Rama, plaintiffs started to cultivate suit land. Plaintiff No. 1 Kewalram was looking after Gunabai, Baijabai and other family members. Though he acquired the title by way of testamentary document of Will, however he had not mutated his name to the Revenue Record of suit property. Latter on due to differences, Baijabai went to reside with her children begotten from her deceased husband Tukaram Khobragade and died there on 10.09.1995. Defendants who are children of Baijabai from Tukaram got mutated name of Baijabai to the Revenue Record of suit property. Thereafter on the strength of Will allegedly executed by Baijabai, defendants got mutated their name to the revenue record of suit property along with Gangubai. When Gunabai came to know about said mutation, she had approached to the Revenue Authorities. Thasildar had confirmed the mutation in the name of defendants. Gangubai challenged the same to the Sub Divisional Officer and then to the Additional Collector. Since civil suit was pending, the Additional Collector has not interfered with the controversy but directed to resolve the dispute in Civil Court.
7. According to plaintiffs, they acquired ownership by way of Will executed by Rama and then by another Will executed by Gunabai. The plaintiffs were peacefully possessing suit property for a long period. However, defendants by virtue of false and bogus Will allegedly executed by Baijabai had altered revenue entries and tried to disturb plaintiffs'' peaceful possession. Therefore, plaintiffs have filed suit for declaration of ownership and for injunction.
8. Defendants resisted suit claim by denying the plaintiffs exclusive ownership. It is denied that Rama had adopted plaintiff No. 1 Kewalram during his lifetime. Both testamentary documents executed by Rama as well by Gunabai were denied. Defendants came with a case that as Rama had no issue from Gunabai, he remarried with Baijabai somewhere in the year 1950. After demise of Rama, his two widows i.e. Gunabai and Baijabai became the joint owner of suit property as second marriage was preceding to the commencement of Hindu Marriage Act, 1955.
