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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
URMILA JOSHI-PHALKE, J.
Smt. Sheela Assav Thomas and Ors. - Appellants
Versus
Swarnalata, Wd/o. Deepak Wasnikar – Respondent
Second Appeal No. 235 Of 2022
Decided On : 07-06-2023
Will - Property Dispute - Indian Succession Act, 1963 - [POSSESSION] - [Section 62 of the Indian Succession Act] - The court discussed the validity of the Will executed in favor of plaintiff No.2 and concluded that the plaintiff No.2 is entitled to the possession of the suit property based on the said Will. The court also highlighted the revocability of a Will under Section 62 of the Indian Succession Act.
Fact of the Case:
The plaintiffs filed a suit for possession of a property against the defendants. The relationship between the parties was complex, involving family ties and property disputes. The plaintiff No.1 executed a Will in favor of plaintiff No.2, revoking an earlier Will in favor of defendant Nos.3 and 4. The defendants contested the suit, claiming that the Will in favor of plaintiff No.2 was fabricated and that the suit was barred under Order 2 Rule 2 of the Civil Procedure Code.
Finding of the Court:
The court found that the suit was not barred under Order 2 Rule 2 of the Civil Procedure Code as the reliefs sought in the present suit were based on a different cause of action from the previous suits. The court also found that the Will executed in favor of plaintiff No.2 was valid and that plaintiff No.2 was entitled to the possession of the suit property based on the said Will.
Issues: The substantial questions of law involved in the appeal were whether the suit was barred under Order 2 Rule 2 of the Civil Procedure Code and whether the Will executed in favor of plaintiff No.2 was legal and valid.
Ratio Decidendi: The court held that the suit was not barred under Order 2 Rule 2 of the Civil Procedure Code as the reliefs sought in the present suit were based on a different cause of action from the previous suits. The court also held that the Will executed in favor of plaintiff No.2 was valid and that plaintiff No.2 was entitled to the possession of the suit property based on the said Will.
Final Decision: The court dismissed the appeal, affirming the lower courts' decisions, and held that plaintiff No.2 was entitled to the possession of the suit property based on the valid Will executed in her favor.
JUDGMENT :
1. Heard learned Counsels appearing for the parties.
2. Present appeal is preferred by the appellants, who are the original defendants, against the judgment and decree dated 16.04.2022 passed by the District Judge-1, Nagpur in Regular Civil Appeal No.392 of 2019 maintaining the judgment and decree passed by the 23rd Joint Civil Judge Senior Division, Nagpur in Regular Civil Suit No.2571 of 2012. The parties hereinafter referred as per their original nomenclature.
3. The brief facts, which are necessary for the disposal of the appeal, are as under :
The plaintiffs have filed a suit for possession of suit property bearing Plot No.82 and 92 admeasuring 172.93 Sq. Mtrs. situated in City Survey No.388 at Ambedkar Nagar, Nagpur (hereinafter referred as “house property”). The plaintiffs are residing on first and second floor and the defendants are residing on ground floor of the house property consists of Varandha, Hall, Store Room, Kitchen, Bedroom admeasuring total build up area 41.66 Sq Mtrs. (hereinafter referred as “the suit property”).
4. The relationship between plaintiff No.1 and plaintiff No.2 is mother-in-law and daughter-in-law.
5. Defendant No.1 is niece of plaintiff No.1. Defendant No.1 was brought up by plaintiff No.1 and performed her marriage with defendant No.2 Assav Thomas. After marriage, defendant No.1 resumed cohabitation with defendant No.2 at his house in the year 1979. After marriage of plaintiff No.2 with son of plaintiff No.1 Deepak, some disputes arose between them, therefore, plaintiff No.2 started residing separately. The defendant No.1 came to reside alongwith plaintiff No.1. Plaintiff No.2 filed a suit for partition for herself and her minor daughter bearing Special Civil Suit No.919 of 1991 against plaintiff No.1. The preliminary decree of partition was passed vide judgment dated 13.12.1994 by the Joint Civil Judge Senior Division, Nagpur. By the said decree, plaintiff No.2 alongwith her minor daughter got half share and plaintiff No.1 got half share in the house property. On 08.12.2000, daughter of plaintiff No.2 died, hence, plaintiff No.2 only became owner of the house property to the extent of half share. She filed final decree proceeding arising out of Special Civil Suit No.919 of 1991.
6. During pendency of the said proceeding, both the plaintiff Nos.1 and 2 arrived at a settlement and filed a joint pursis that they do not want to proceed further and withdrawn the final decree proceeding. Thus, there was no final decree as to partition. The plaintiff No.1 was residing with the defendants, however, on 23.01.2003, the defendants drove her out of the house, and therefore, she has taken shelter at the house of plaintiff No.2 and was residing with her. She had also lodged a report against defendants about alleged incident. As per the allegations of plaintiffs, the defendants have taken disadvantage of old age of plaintiff No.1 and prepared the false documents to grab the house property. After plaintiff No.1 was driven out of the house, the defendant No.1 has filed Special Civil Suit bearing No.209 of 2003 for specific performance of contract against plaintiff No.1. The plaintiff No.2 filed intervention application in the Special Civil Suit No.209 of 2003, which was allowed. Plaintiff No.2 filed her written statement alongwith counter claim for damages on the ground floor that defendants caused damage to the ground floor on account of renovation. The civil suit filed by the defendant Nos.1 and 2 alongwith the counter claim was dismissed. The defendants as well as plaintiff No.2 both have challenged the judgment and order of dismissal by preferring First Appeal Nos.934 of 2009 and 1424 of 2009 before this Court. Both these appeals are dismissed on 14.09.2010.
7. During pendency of civil suit bearing No.209 of 2003, plaintiff No.2 filed Regular Civil Suit No.151 of 2007 before the Small Causes Court at Nagpur against defendant Nos.1 and 2 for recovery of rent and eviction. As per the contentio
AI
The revocability of a Will under Section 62 of the Indian Succession Act and the requirement to prove the execution of a Will as any other document were the central legal points established in the ju....
The main legal point established in the judgment is that the burden of proving a Will rests on the propounders, and when a Will is surrounded by suspicious circumstances, the propounders must offer a....
The propounder of a Will must prove its execution and attestation in accordance with law, and any suspicious circumstances surrounding the Will must be dispelled for it to be considered valid.
The determination of property ownership validity relies on substantial proof of wills and the classification of property as joint or self-acquired.
The main legal point established in the judgment is the requirement to prove the execution of a Will in accordance with the provisions of the Indian Succession Act and the Indian Evidence Act, and th....
Sections 68 of Indian Evidence Act reads as proof of execution of document required by law to be attested.
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