Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Online)(Bom) 10539

2024:BHC-NAG:10890

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.

SECOND APPEAL NO. 628 OF 2018

1) Mr. Kishor S/o Govindrao Chimurkar,

aged about 58 years, Occu. : Retired,

R/o. Amba Niwas, Chitnis Park Square,

Near Devadiya Congress Bhavan,

Pachpaoli Road, Bhaldarpura,

Nagpur.

2) Mr. Prakash S/o Govindrao Chimurkar,

Aged about 55 years, Occu. : Nil,

R/o. Amba Niwas, Chitnis Park Square,

Near Devadiya Congress Bhavan,

Pachpaoli Road, Bhaldarpura,

Nagpur. …. APPELLANTS

// VERSUS //

Mr. Suresh Govindrao Chimurkar,

Aged about 66 years, Occu. : Retired,

R/o. Plot No.47, House No.783,

Balaji Nagar, Digdoh,

Hingna Road, Nagpur – 440016. …. RESPONDENT

Respondent No. 2 is deleted as per order dt.05.12.2019.

Mr. U.A. Gosavi, Advocate for Appellant.

Mr. S.P. Kshirsagar, Advocate for Respondent.

CORAM : SANJAY A. DESHMUKH, J.

DATE OF RESERVING THE JUDGMENT : 01.07.2024.
DATE OF PRONOUNCING THE JUDGMENT : 22.07.2024.

Advocates:
For the Appellants/Petitioners: U.A. Gosavi
For the Respondents: S.P. Kshirsagar

A testamentary document requires strict compliance with statutory attestation provisions, including examination of an attesting witness. Where a propounder fails to remove suspicious circumstances—such as unexplained exclusion of natural heirs, delayed production, or contradictory conduct—the document is deemed invalid and fails to prevail over natural succession.

Headnote:(A) Indian Succession Act, 1925 - Section 63 - Indian Evidence Act, 1872 - Sections 8, 68 and 114(g) - Will - Proof of - Requirement that at least one attesting witness must be examined to prove execution. There is a necessity of animo attestandi or intention to attest on the part of the witness. (Paras 11, 13, 14)

(B) Will - Suspicious circumstances - Exclusion of legal heirs from inheritance without providing any justification in the instrument serves as a basis for suspicion. Failure to disclose the testamentary document during subsequent litigation while representing the deceased as legal heirs adds to the suspicion regarding the document's authenticity. (Paras 15, 17, 18)

(C) Appeal - Scope - Appellate court is entitled to re-appreciate evidence when trial court relies on conjectures. When a testamentary instrument is surrounded by suspicious circumstances which the propounder fails to remove, the court is justified in declaring it invalid. (Para 21)

Facts of the case:
The litigation involves a dispute between siblings over property ownership. The claimant sought partition, asserting the father died intestate. A party relied upon a testamentary document to claim exclusive rights to the estate. The lower court initially upheld the validity of the document, but the court of appeal reversed this, finding it lacked proper attestation and was surrounded by suspicious circumstances like the unexplained exclusion of an heir and delayed production of the document.

Findings of Court:
The court found that the mandatory requirements for proof of the document were not met as the witness did not confirm observing the testator signing it. Furthermore, the propounder failed to discharge the burden of proof by not removing the surrounding suspicions, including the control over financial records and the failure to disclose the document during prior judicial proceedings.

Issues: Whether the document met the statutory requirements for attestation and whether the circumstances surrounding its creation and execution were sufficiently suspicious to warrant a finding of invalidity.

Ratio Decidendi: The validity of a testamentary instrument strictly depends on compliance with mandatory attestation requirements and the absence of unexplained suspicious circumstances. If the propounder fails to satisfy the court's conscience or remove doubts regarding the circumstances of its execution, the document cannot be held as a valid expression of a person's last wishes.

Result: Appeal dismissed.

JUDGMENT.

1. This appeal is preferred against the Judgment and decree passed by the District Judge-12, Nagpur in Regular Civil Appeal No.326 of 2013, dated 03.12.2016, which was preferred against the Judgment and decree passed by 3rd Joint Civil Judge, Junior Division, Nagpur in Regular Civil Suit No.3101 of 2012 (Old Special Civil Suit No.877/2006), dated 06.08.2013. The suit is filed for declaration, partition, separate possession and for perpetual injunction, it was dismissed and the Appeal was allowed. In the said Appeal, it was held that the plaintiff and defendants are entitled to 1/5th share each in the suit properties.

2. Brief facts of the plaintiff’s case are as under :

(i) The house properties are situated at the Municipal Corporation Nagpur City bearing Nos. 262 and 263 are the subject matter of the suit. Late Govindrao Ganpatrao Chimurkar was owner of it. He was M.A., L.L.B. He retired from the Customs Department as Assistant Collector. After his retirement, he was practicing as an Advocate. He died on 29.11.2002. Defendant No.1 was his wife. The plaintiff and other defendants are his sons and daughter.

(ii) The plaintiff contended that late Govindrao never executed any Will. He died intestate, therefore, he has succession right in the suit properties as he is his Class-I heir. The suit property No.263 was purchased by late Govindrao and his father. The suit property No.262 was purchased by late Govindrao and constructed house over it by his own funds. After his death the plaintiff enquired about partition of the suit properties to the defendants. But they did not express anything about it. Thereafter, the plaintiff submitted an application to the Municipal Corporation, Nagpur that if any application for mutation is filed by anybody regarding the suit properties, no any mutation be effected without giving notice to him as he is Class-I heir of late Govindrao.

(iii) Defendant No.2 submitted an application for mutating his name to the suit properties to the City Survey Office Nagpur and Municipal Corporation, Nagpur. The notices were issued to the plaintiff as well as defendants by the said authority. That time, in the month of August-2003, the plaintiff got knowledge of alleged Will dated 26.10.1995 executed by late Govindrao in favour of defendant No.2. The said mutation proceedings was rejected by the City Survey Officer and directed defendant No.2 to bring the order from the Court in respect of a Will. The Municipal Corporation also refused to mutate name of the defendant No.2 and directed him to bring the order from the Court in respect of the Will. Those orders were not challenged by the defendant No.2.

(iv) The Second Appeal No.292 of 1996 was filed by late Govindrao in the High Court regarding the claim of the lane by the side of the suit properties. Thereafter, he died and the plaintiff and defendants were brought on record as legal representatives of late Govindrao by application dated 09.01.2003 filed by defendant No.2 along with his affidavit. That time a disputed Will was not produced and exclusive right under the Will was not claimed by defendant No.2.

(v) The plaintiff got copy of the Will from the office of City Survey and tried to persuade to defendant No.2 and other defendants for making amicable partition of the suit properties, but it went into vain. The plaintiff further contended that one of the attesting witness to the alleged a Will namely Manik Mahadeorao Ingole specifically stated before the City Survey Officer that though his signature as a witness is on a Will, he neither saw execution of the Will by late Govindrao nor he knew the contents therein. The plaintiff issued notice/letter dated 19.06.2006 to the defendants claiming partition and separate possession of his share in the suit properties. Defendant No.2 replied the said notice and claimed that he is owner of the suit properties as per a Will executed by Govindrao.

(vi) The plaintiff contended that the alleged Will is not a

Click Here to Read the rest of this document

2024 Supreme(Online)(Bom) 10539

Cases Referred (4)