VASANT H. JAYAWANT BHASME Vs. SHANKARARAO BHIMRAO BHASME

JUDGEMENT

(1.) In this second appeal, the substantial question of law that arises for consideration mainly relates to proof of Will dated 28-12-1963 said to have been executed by one Krishnaji Annaji Bhasme. Both the attestors and the scribe of the Will being dead, the plaintiff chose to examine the son of the scribe as P.W. 3 and another witness acquainted with the handwriting of the testator as P.W. 4. Since according to the defendants who have preferred this appeal, the evidence of P.Ws. 3 and 4 does not meet the requirement of Sec. 69 of the Indian Evidence Act, 1872 ('the Act', for brevity) the substantial question of law framed at the time of admission is as follows:

(2.) Before dealing with this question, a brief reference may be made to the pleadings:

(3.) Krishnaji Bhasme was living in the bungalow. He lost his wife. One Rukmini Bai belonging to maratha caste and who had been discarded by her husband was looking after him in the bungalow. She had a son by name layavant, who was born to her in the wedlock with her husband. But, Krishnaji Bhasme treated this Jayavant as his foster son. Since Krishnaji was addicted to alcohol, to meet his expensive habits, he sold his town house in the year 1956. Later, in order to maintain himself, he sold half portion of the suit property in Sy. No. 646 to his brother Bheemrao Bhasme by executing a sale deed on 17-5-1957. Bheemrao Bhasme died in the year 1963. Then Bheemrao Bhasme's son, Shankar Rao Bhasme, the original plaintiff, succeeded to the property purchased by his father from Krishnaji Bhasme. Krishnaji Bhasme decided to sell the remaining half portion of the land in Sy. No. 646, and on 28-12-1963, he sold that remaining portion to the plaintiff-Shankar Rao Bhasme. But, in the remaining half portion, there was a strip of land measuring 20 guntas under the occupation of tenant. Since there was statutory bar for transfer of tenanted lands, this 20 guntas of land was not included in the sale deed dated 28-12-1963 although Krishnaji Bhasme had received the sale consideration from the plaintiff for the entire land including this 20 guntas of land. It is the further case of the plaintiff that, on 28-12-1963 itself Krishnaji Bhasme executed a Will in favour of the plaintiff in respect of 20 guntas of land, which could not be included in the sale deed. According to the plaintiff-Krishnaji Bhasme died on 8-10-1979. Therefore, the plaintiff became the absolute owner of the entire 4 acres 6 guntas of land in Sy. No. 646 having succeeded to the property purchased by his father under the sale deed dated 17-5-1957 and another sale deed and the registered Will executed on 28-12-1963.