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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
SECOND APPEAL NO. 322 /1998
Prabhakar Dadaji Darne
Aged about 53 years
occu: cultivator R/o Takli (Darne)
Tah. & Dist. Wadha). ... ...APPELLANT
v e r s u s
Sharad s/o Janrao Darne
Aged about 48 years
occu: Cultivator
R/o Takli (Darne)
Tah. & Dist. Wardha) ... ...RESPONDENT
...........................................................................................................................
Mr. G.G. Modak, Advocate for appellant
Mr V.G. Wankhede Adv.for Respondent.
...........................................................................................................................
CORAM: A.P.BHANGALE, J.
DATED : 27th July,2010
JUDGMENT :
This appeal is directed against the judgment and order
dated 22.4.1998 passed in Regular Civil Appeal No.129/1995 by
learned 2nd Additional District Judge, Wardha, who confirmed the
judgment and order passed by the trial Court, except to the extent of
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awarding compensatory cost to the original defendant. The order
granting compensatory costs was set aside. In the trial Court, learned
Civil Judge, Jr.Dn., Wardha had dismissed the Regular Civil Suit
No.143/ 1993 awarding compensatory cost of Rs. 500/-payable to the
defendants.
2. Facts briefly are :
The plaintiff had instituted the suit for possession based on
title to the suit property i.e. Plot No.27 admeasuring 40′ x 20′
situated at Takli Tal. & Dist. Wardha. The suit plot was owned by
father of the plaintiff and bequeathed in his favour under Will dated
26.3.1981. The defendant who is not concerned with the plot started
storing /keeping firewood in the suit plot, which the plaintiff objected.
On 5.5.1993, the defendant dug a pit with a view to construct a shed.
The plaintiff complained to the Gram Panchayat, Takli, which issued
notice dated 27.2.1993 to the defendant to remove the tinshed. On
7.5.1993 an exparte injunction was granted against the defendant
but the defendnt has forcibly dispossessed the palintiff of the portion 40′
x 20′ out of the suit plot.
3. The defendant had resisted the suit by denial of contentions
in the plaint and claimed that defendant owns plot admeasuring 40′
NS x 20′ W. since his forefathers and alleged that the plaintiff in
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connivance with Sarpanch is trying to grab the property of the
defendant.
4. The trial Court disbelieved the case of the plaintiff and
found that the plaintiff had failed to prove that he acquired title to the
suit plot under Will deed dated 26.3.1981, purportedly executed by
his father in his favour. The trial Court found that the suit is false and
vexatious and awarded compensatory cost of Rs. 500/- payable to the
defendant. The first appellate Court, however, felt that compensatory
cost ought not to have been awarded in the facts and circumstances of
the case, while confirming rest of the judgment and order passed by the
trial Court.
5. The appeal was admitted on 8.9.21998 on following
substantial question of law :-
“Whether the Courts below were right in holding that
the plaintiff has not proved the Will on the ground
that the attesting witness has said that the testator
did not sign the Will in their presence when the
deposition of the attesting witness clearly shows that
he has categorically made a statement that the Will
was signed by the testator in his presence and he has
specifically denied a suggestion that it was not signed
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4in his presence?
6. I have heard submissions advanced on behalf of the parties.
7. The plaintiff had claimed that the suit plot was allotted to his
father by an order of Tahsildar in 1954-55 for rehabilitation of flood-
affected persons and his father had on 26.3.1981 bequeathed it in his
favour. The only attesting witness examined by the plaintiff,
however, admitted that he does not know the contents of the document
Exh. 41; as also does not know name of the scribe. There was no any
evidence about ownership of the father of the plaintiff so as to bequeath
the suit plot. The plaintiff had miserably failed to prove his title to the
suit plot.
8. Learned Advocate for respondent made reference to the
ruling in Niranjan Umeshchandra Joshi vs. Mrudula Jyoti Rao
and others :(2006 ) 13 SCC 433, to argue that if there are
suspicious circumstances surrounding execution of Will and
genuineness of the Will it has to be considered as null and void. In the
ruling cited it appears that the probate was refused for the alleged
Will as there were several suspicious circumstances surrounding
execution of Will. The testator was in Hospital in ICU and within
24 hours of his admission in ICU a power-of-attorney and Will in
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favour of his second son was drafted, which bequeathed entire legacy
of the deceased absolutely in favour of propounder of the Will. The Will
along with two schedules drafted meticulously although testator had
no documents with him in the small cubicle of hospital. The Doctor
attending the patient was not examined, who could have stated about
state of mind of the testator at the time of execution of the Will. The
manner in which death certificate was granted was also suspicious.
Under these circumstances, the Apex Court had refused to interfere with
the order of the High Court refusing probate for the Will.
9. In order to prove a Will, it was necessary for the plaintiff to
prove first that his father owned the suit plot and was competent to
bequeath the same and furthermore in view of Section 63 of the
Indian Succession Act, at least, one attesting witness must be examined
to prove who depose about having seen the testator present and
signing the Will. The witness examined in the present case did not
know about the scribe as well as contents of the document. Second
attesting witness was not examined. For these reasons, it cannot be
said that conclusion of the courts below were either erroneous or
contrary to law. The findings and conclusion of facts were concurrent
to order dismissal of suit and were based on evidence. Hence no
infirmity whatsoever can be found. The substantial question of law
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stated has to be answered accordingly against the appellant.
10. In the result, the Appeal being sans merit, deserve dismissal,
which I direct.
JUDGE
sahare
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