{"id":48605,"date":"2003-08-14T00:00:00","date_gmt":"2003-08-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ramabai-padmakar-patil-d-vs-rukminibai-vishnu-vekhande-and-on-14-august-2003"},"modified":"2015-12-06T16:53:25","modified_gmt":"2015-12-06T11:23:25","slug":"ramabai-padmakar-patil-d-vs-rukminibai-vishnu-vekhande-and-on-14-august-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ramabai-padmakar-patil-d-vs-rukminibai-vishnu-vekhande-and-on-14-august-2003","title":{"rendered":"Ramabai Padmakar Patil (D) … vs Rukminibai Vishnu Vekhande And … on 14 August, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Ramabai Padmakar Patil (D) … vs Rukminibai Vishnu Vekhande And … on 14 August, 2003<\/div>\n
Bench: Y.K. Sabharwal, G.P. Mathur<\/div>\n
           CASE NO.:\nAppeal (civil)  15697 of 1996\n\nPETITIONER:\nRAMABAI PADMAKAR PATIL (D) THROUGH LRS. AND ORS.\n\nRESPONDENT:\nRUKMINIBAI VISHNU VEKHANDE AND ORS.\n\nDATE OF JUDGMENT: 14\/08\/2003\n\nBENCH:\nY.K. SABHARWAL & G.P. MATHUR\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
2003 Supp(2) SCR 583<\/p>\n
The Judgment of the Court was delivered by<\/p>\n
G.P. MATHUR, J. 1. This appeal by special leave has been preferred by the
\nplaintiff against the judgment and decree dated 27.4.1995 of High Court of
\nBombay by which the second appeal preferred by her was dismissed and the
\njudgment and decree dated 7.4.1993 passed by the District Judge, Thane was
\naffirmed.\n<\/p>\n
2. The appellant Smt. Ramabai filed a suit for a declaration that she had
\nbecome owner and occupant of the suit property as per the Will dated
\n5.4.1976 and for injunction for restraining the defendants and their
\nagents, etc. from interfering with her peaceful possession over the
\naforesaid property. The defendant nos. 1 to 5 are the real sisters of the
\nplaintiff and defendant nos. 6 to 8 are the children of a deceased sister
\nof the plaintiff, namely, Smt. Gajarubai. The suit was filed on the ground
\nthat the property in dispute, which is a house and agricultural land,
\nbelonged to Madhav who was father of the plaintiff and defendant nos. 1 to
\n5 and after his death, the same was inherited by their mother Smt.
\nYamunabai and she became the owner thereof. Smt. Yamunabai executed a
\nregistered Will by which she bequeathed the entire property to the
\nplaintiff. Smt. Yamunabai died on 11.1.1980 and thereafter the plaintiff
\ncame in possession over the property in dispute. However, the defendants
\ngot the names of all the heirs of Madhav mutated over the property in
\ndispute and thereafter started interfering with the plaintiffs possession
\nthereof. The suit was accordingly filed claiming a decree of declaration
\nand injunction. The defendant nos. I to 5 contested the suit on :he ground,
\ninter alia, that the property in dispute was ancestral property in he hands
\nof Madhav and after his death Smt. Yamunabai did not become the exclusive
\nowner thererof : that the tenancy rights were inherited by all the heirs of
\nMadhav by succession : that the house was built by father of Madhav and it
\nbeing ancestral in nature, the same was inherited by all the heirs; that
\nMadhav died in the year 1957 and, thereof, the succession would be governed
\nby Hindu Succession Act and that Smt. Yamunabai did not execute any Will in
\nfavour of the plaintiff on 5.4.1976 and the same was not binding upon the
\ndefendants. It was specifically pleaded that the share of the plaintiff was
\nonly 1\/7 and, thereof, no decree for injunction could be passed against the
\ndefendants.\n<\/p>\n
3.     The parties adduced oral and documentary evidence in support of
\ntheir case. The learned Civil Judge (Jr. Divn.), Palghar, decreed the suit
\non 4.2.1988 declaring that the plaintiff had become exclusive owner of the
\nproperty in dispute on the basis of the Will dated 5.4.1976. He further
\npassed a decree for injunction restraining the defendants from causing any
\ninterference in the possession of the plaintiff over the property in
\ndispute. Feeling aggrieved by the aforesaid judgment and decree defendant
\nnos. 1 to 5 preferred an appeal before the District Judge, Thane, who
\nallowed the same by the judgment and decree dated 7.4.1993 and dismissed
\nthe suit. The plaintiff preferred a second appeal which was dismissed by
\nthe High Court on 27.4.1995 and the decree passed by the learned District
\nJudge dismissing the suit was affirmed.\n<\/p>\n
4.     Shri V.A. Mohta, learned senior counsel for the appellant has
\nsubmitted that after the death of Madhav which took place 6.6.1956, his
\nwidow Smt. Yamunabai had become the exclusive owner of entire property. The
\nplaintiff- appellant had become a widow in the lifetime of her parents and
\nwas residing with then. It was for this reason that Smt. Yamunabai had
\nexecuted a Will in favour of the plaintiff and the same was got registered.
\nLearned counsel has further submitted that the learned District Judge and
\nalso the High Court have taken a completely perverse view in discarding the
\nWill solely on the ground that Smt. Yamunabai had excluded her other
\ndaughters and had given the entire property to the plaintiff. It has been
\nurged that in the facts and circumstances of the case, the conduct of Smt.
\nYamunabai was most natural and no doubt could be raised regarding the
\nauthenticity of the Will merely on the ground that no provision was made
\nfor the remaining daughters. It has also been urged that the Will was
\nexecuted and was registered on 5.4.1976 whilst Smt. Yamunabai died after
\nconsiderable period on 11.1.1980, which itself showed that the same was
\nexecuted when she was in proper and fit mental state and it had not been
\nobtained by putting any undue influence. Shri A.S Bhasme, learned counsel
\nfor the respondents has on the other hand, submitted that the mother had
\nequal love and affection for all her children and there was no material on
\nrecord to show that Smt. Yamunabai was in any manner displeased or unhappy
\nwith her other daughters and as such she would not have completely
\ndisinherited them and this feature rendered the alleged execution of Will
\nby her as highly suspicious and unnatural. He has further submitted that
\nthe learned District Judge and the High Court had given good reasons for
\ndiscarding the Will and the findings recorded by them being based upon
\nproper appraisal of evidence, should not be interfered with by this Court
\nLearned counsel has also urged that Smt. Yamunabai had not become exclusive
\nowner of the property after the death of Madhav as the succession would be
\ngoverned by Hindu Succession Act and consequently even if the Will was
\naccepted, the plaintiff would not become owner of the entire property.\n<\/p>\n
5. Before we advert to the submissions made by learned counsel for the
\nparties, it will be useful to briefly notice the legal position regarding
\nacceptance and proof of a Will. Section 63 of Indian Succession Act deals
\nwith execution of unprivileged Wills. It lays down that the testator shall
\nsign or shall affix his mark to the Will or it shall be signed by some
\nother person in his presence and by his direction. It further lays down
\nthat the Will shall be attested by two or more witnesses, each of whom has
\nseen the testator signing or affixing his mark to the Will or has seen some
\nother person sign the Will, in the presence and by the direction of the
\ntestator and each of the witness shall sign the Will in the presence of the
\ntestator. Section 68 of the Evidence Act mandates examination of one
\nattesting witness in proof of a Will, whether registered or not. The law
\nrelating to the manner and onus of proof and also the duty cast upon the
\nCourt while dealing with a case based upon a Will has been examined in
\nconsiderable detail in several decisions of this Court viz. H. Venkatachala
\nlyengar v. B.N. Thimmajamma and Ors., AIR (1959) SC 443, Rani Purinima Debi
\nand Anr. v. Kumar Khagendra Narayan Deb and Anr. AIR (1962) SC 567 and
\nShashi Kumar Banerjee and Ors. v. Subodh Kumar Banerjee and Ors., AIR<\/a>
\n(1964) SC 529. It will be useful to reproduce the relevant part of the
\nobservations made by this Court in the Constitution Bench decision in
\nShashi Kumar Benerjee (supra) which are as under :\n<\/p>\n
“The mode of proving a Will does not ordinary differ from that of proving
\nany other document except as to the special requirement of attestation
\nprescribed in the case of a will by Section 63, Succession Act. The onus of
\nproving the will is on the propounder and in the absence of suspicious
\ncircumstances surrounding the execution of the will, proof of testamentary
\ncapacity and the signature of the testator as required by law is sufficient
\nto discharge the onus. Where however there are suspicious circumstances,
\nthe onus is on the propounder to explain them to the satisfaction of the
\ncourt before the court accepts the will as genuine. Where the caveator
\nalleges undue influence, fraud and coercion, the onus is on him to prove
\nthe same. Even where there are no such pleas but the circumstances give
\nrise to doubts, it is for the propounder to satisfy the conscience of the
\ncourt. The suspicious circumstances may be as to the genuineness of the
\nsignature of the testator, the condition of the testator’s mind, the
\ndispositions made in the will being unnatural, improbable or unfair in the
\nlight of relevant circumstances or there might be other indications in the
\nwill to show that the testator’s mind was not free. In such a case the
\ncourt would naturally expect that all legitimate suspicion should be
\ncompletely removed before the document is accepted as the last will of the
\ntestator. If the propounder himself takes part in the execution of the will
\nwhich confers a substantial benefit on him that is also a circumstance to
\nbe taken into account, and the propounder is required to remove the doubts
\nby clear and satisfactory evidence. If the propounder succeeds in removing
\nthe suspicious circumstances the court would grant probate, even if the
\nwill might by unnatural and might cut off wholly or in part near relations.\n<\/p>\n
6. The relevant facts may now be examined. It is not in dispute that Smt.
\nYamunabai had no son but had 7 daughters. The plaintiff-appellant Smt.
\nRamabai become a widow at a very young age during the lifetime of her
\nfather. Since then, she was living with her parents and not at the place of
\nher husband or in-laws. It has come in evidence that she was looking after
\nher mother for more than 20 years. The other daughters of Smt. Yamunabai
\nare living with their husbands at their respective places. Smt. Yamunabai
\nhad gone to the office of Sub-Registrar, Palghar on 5.4.1976 for the
\npurposes of registration of the will and she died 3 years and 9 months
\nthereafter on 11.1.1980. The Will was attested by two persons, namely, PW2
\nRughunath Govind Sogale and Shaikh, out of whom the former was examined as
\na witness in Court. There is no dispute regarding these facts. There is
\nnothing more shocking for the parents than the death of a grown-up son or a
\nyoung daughter becoming widow. It is most natural for the parents to have
\nthe greatest amount of sympathy for their widowed daughter. The defendants
\nhave led no evidence to show that Smt. Ramabai was getting anything for her
\nsustenance from the family members of her late husband. She was thus
\nentirely dependent upon her own parents. According to Smt. Ramabai, her
\nfather Madhav died on 6.6.1956 though according to the defendants he died
\nsometime in year 1957. At any rate at least from 1957 till her death, the
\nmother Smt. Yamunabai was being looked after by the plaintiff Smt. Ramabai.
\nThe defendants who are the other daughter of Smt. Yamunabai, are residing
\nat different places with their husband. In such circumstances the execution
\nof the Will by Smt. Yamunabai in favour of her widowed daughter Smt.
\nRamabai, who was living with her for over 20 years and was looking after
\nher, appears to be most natural and probable.\n<\/p>\n
7.  The main reason which weighed with the learned District Judge in
\ndiscarding the Will, which has also appealed to the High Court, is that
\nSmt. Yamunabai completely disinherited her other daughter and gave the
\nentire property to Smt. Ramabai. In our opinion, the fact that Smt.
\nYanumabai excluded all other daughter and gave the entire property to the
\nplaintiff Smt. Ramabai could not be a ground to cast any doubt regarding
\nthe authenticity of the Will in the facts and circumstances of the case in
\nhand. It is not a case of exclusion of a son who may have been living with
\nthe parents or looking after them. It is a case of making provision for a
\nwidowed daughter who had been left a destitute on account of death of her
\nhusband at a very early age. If the parental property was to be divided
\nequally amongst all the seven sisters, the share inherited by Smt. Ramabai
\nwould have been quite small making it difficult for her to survive. The
\nhouse is situate in a village and is not in a big town or city where it may
\nhave any substantial value. In fact, if the background in which the Will
\nwas executed is examined carefully, it would be apparent that this was the
\nmost natural conduct of the mother and giving of equal shares to all the
\ndaughters would have entailed a serious hardship to the plaintiff Smt.
\nRamabai.\n<\/p>\n
8.  A Will is executed to alter the mode of succession and by the very
\nnature of things it is bound to result in either reducing or depriving the
\nshare of a natural heir. If a person intends his property to pass to his
\nnatural heirs, there is no necessity at all of executing a Will. It is true
\nthat a propounder if the Will has to remove all suspicious circumstances.
\nSuspicion means doubt, conjecture or mistrust. But the fact that natural
\nheirs have either been excluded or a lesser share has been given to them,
\nby itself without anything more, cannot be held to be suspicious
\ncircumstance especially in a case where the request has been made in favour
\nof an offspring. In PPK Gopalan Nambiar v. PPK Balakrishan Manbiar and
\nOrs., AIR<\/a> (1995) SC 1852 it has been held that it is the duty of the
\npropounder of the Will to remove all the suspected features, but there must
\nbe real, germane and valid suspicious features and not fantasy of the
\ndoubting mind. In this case, the fact that the whole estate was given to
\nthe son under the Will depriving two daughters was held to be not a
\nsuspicious circumstance and the finding to the contrary recorded by the
\nDistrict Court and the High Court was reversed. In Pushpavati and Ors. v.
\nChandraja Kadanba and Ors., AIR (1972) SC 2492, it has been held that if
\nthe propounder succeeds in removing the suspicious circumstance, the Court
\nwould have to give effect to the Will, even if the Will might be unnatural
\nin the sense that it has cut off wholly or in part near relations. In
\nRabindra Nath Mukherjee and Anr. v. Panchanan Banerjee<\/a> (dead) by Lbs. and
\nOrs., [1950] 4 SCC 459, it was observed that the circumstance of
\ndeprivation of natural heirs should not raise any suspicion because the
\nwhole idea behind execution of the Will is to interfere with the normal
\nline of succession in and so, natural heirs would be debarred in every case
\nof Will. Of course, it may be that in some cases they are fully debarred
\nand in some cases partly. The concurrent finding recorded by the District
\nCourt and the High Court for doubting the genuineness of the Will on the
\naforesaid ground was reversed.\n<\/p>\n
9. The learned District Judge has observed that Smt. Yamunabai was very old
\nwhen she executed the Will and she was hard of hearing and was unable to
\nwalk. He further observed that Chhaya Dighe who typed the Will and one Shri
\nTiwari, Advocate, who was present at the time of preparation and execution
\nof the Will, were not examined and these facts together created a doubt
\nregarding the authenticity of the Will. As discussed earlier, in view of
\nSection 63 of Indian Succession Act the proviso to Section 68 of the
\nEvidence Act, the requirement of law would be fully satisfied if only one
\nof the attesting witness is examined to prove the Will. That this had been
\ndone in the present case by examining PW2 Raghunath Govind Sogale cannot be
\ndisputed. No infirmity of any kind had been found in the testimony of this
\nwitness. Chhaya Dighe merely typed the Will and she is not an attesting
\nwitness nor it is anybody’s case that Smt. Yamunabai had put her thumb
\nimpression on the Will in her presence, therefore, her examination as a
\nwitness was wholly redundant. The mere non examination of the Advocate who
\nwas present at the time of preparation or registration of the Will cannot,
\nby itself, be a ground to discard the same. The fact that Smt. Yamunabai
\nwas hard of hearing or that she was unable to walk does not lead to an
\ninference that her mental faculties had been impaired or that she did not
\nunderstand the contents of the document which she was executing. It is
\nimportant to note that Smt. Yamunabai personally came to the office of the
\nSub-Registrar and her death took place after a considerable period i.e. 3
\nyears and 9 months after the execution of the Will. No evidence has been
\nadduced by the defendants to show that at the time of the execution of the
\nWill she had been suffering from any such ailment which had impaired her
\nmental faculties to such an extent that she was unable to understand the
\nreal nature of the document which she was executing. We are, therefore,
\nclearly of the opinion that the finding recorded by the learned District
\nJudge, which has been affirmed by the High Court in second appeal, is not
\nbased upon a correct application of legal principles governing the proof
\nand acceptance of Will and the same is completely perverse. The aforesaid
\nfinding is accordingly set aside. The finding recorded by the trial Court
\nthat Will is genuine is hereby restored.\n<\/p>\n
10.   The next question which requires consideration is whether the
\nplaintiff-appellant would become the owner of the entire property which
\nbelonged to Madhav. The learned Civil Judge (Jr. Divn.) has held that as
\nMadhav died on 6.6.1956, Smt. Yamunabai after coming into force of Hindu
\nSuccession Act became owner of entire property. The learned District Judge
\nhas reversed this finding and has held that Madhav died sometime in the
\nyear 1957 i.e. after 17.6.1956 when Hindu Succession Act had come into
\nforce and consequently Smt. Yamunabai and all her daughters would get equal
\nshare in the property. The High Court did not go into this question at all
\nand dismissed the second appeal after expressing agreement with the finding
\nof the learned District Judge regarding the character of the Will. We have
\ncarefully perused the judgment of the trial Court and also of the first
\nappellate Court on this point and we are of the opinion that the finding
\nrecorded by the learned District Judge to the effect that Madhav died
\nsometime after enforcement of Hindu Succession Act is based upon a correct
\nand proper appraisal of evidence and no exception can be taken to the same.
\nIn this view of the matter, Smt. Yamunabai will have only l\/8th share in
\nthe estate left by Madhav which alone would go to the plaintiff on the
\nbasis of the Will executed in her favour.\n<\/p>\n
11.   In the result, the appeal is allowed and the judgment and decree
\npassed by the District Judge and also by the High Court are set aside. The
\ndecree passed by the learned Civil Judge (Jr. Divn.) is modified and it is
\ndeclared to the plaintiff-appellant, in addition to her own share, will
\nalso be entitled to the l\/8th share of her mother Smt. Yamunabai on the
\nbasis of the Will executed in her favour. No costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Ramabai Padmakar Patil (D) … vs Rukminibai Vishnu Vekhande And … on 14 August, 2003 Bench: Y.K. Sabharwal, G.P. Mathur CASE NO.: Appeal (civil) 15697 of 1996 PETITIONER: RAMABAI PADMAKAR PATIL (D) THROUGH LRS. AND ORS. RESPONDENT: RUKMINIBAI VISHNU VEKHANDE AND ORS. DATE OF JUDGMENT: 14\/08\/2003 BENCH: Y.K. SABHARWAL & G.P. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-48605","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRamabai Padmakar Patil (D) ... vs Rukminibai Vishnu Vekhande And ... on 14 August, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ramabai-padmakar-patil-d-vs-rukminibai-vishnu-vekhande-and-on-14-august-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ramabai Padmakar Patil (D) ... vs Rukminibai Vishnu Vekhande And ... on 14 August, 2003 - 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