SONUBHAI YESHWANT JADHAV Vs. BALA GOVINDA YADAV

JUDGEMENT

(1.) This is original defendant No. 1s second appeal that questions the concurrent judgment and the decree made and affirmed holding that to the property left by the deceased Tanubai, wd/o Vithoba Girjappa, who died on November 17, 1966, plaintiff Bala Govind Yadav, being the nearest heir, was entitled to succeed and the Will set up the by the appellant original defendant No. 1 was a got-up one and did not confer any entitlement on the appellant to succeed to the property of Tanubai.

(2.) The undisputed facts as are found are that plaintiff Bala is the son of Govinda, s/o Nana, who was the son of Patlu. Patlu had four sons, being Aba, Nana, Sakhoba and Girjappa. Vithoba, the husband of Tanubai was the son of Girjappa. The plaintiff thus is shown to be Tanubais husbands cousin brothers son. As far as the other branches are concerned, there does not appear to be any other male heir having priority in the branch and in the family of the husband of Tanubai.

(3.) The suit property was the property that was the property of Vithoba, who died as far back as some time in 1951. Upon his death, the property was inherited by Tanubai and she was holding the same till her death on November 17, 1966. It was the case of the present appellant that 7 days before her death, she left the Will bequeathing all the property and that Will was produced alongwith the lease at Exhibit 37. As its due execution was not established, it was not formally exhibited. Both the courts below have concurrently found that not only there are suspicious circumstances surrounded the making of the Will which the evidence falls short to dispel the same but even the execution of the Will has not been established, in that it is not shown that the thumb impression on the Will was that of Tanubai. This finding is based on the appreciation of the case set up by the present appellant that Tanubai was an illiterate lady. She used to put her left hand thumb impression in token of execution of the documents and the thumb impression on the document of the Will was os made by her. As that thumb impression was denied to be that of Tanubai, the said thumb impression along with the admitted thumb impression were sent firstly at the behest of the plaintiff to the handwriting expert who opined that it was not thumb impression of Tanubai. Again, at the behest of the present appellant, the said thumb impression on the Will was referred to another expert and he too affirmed the opinion given by the expert. Both these experts, being Madhav Panchbhai and Vaman Puntambekar, have been examined and accepting their testimony, the courts below have held that the thumb impression purporting to be that of Tanubai is not of her left hand. After the opinions, it appears, the case was set up that it was the thumb impression of the right hand. Appreciating the evidence on this aspect, which consists of scribe Kulkarni and attesting witnesses Parasu Shevale, Yeshwant Patil and Vishnu Ghare, both the courts below have found that this evidence is totally false and against the probabilities. Thus, it had been found that the execution of the Will itself was not proved and so also there were suspicious circumstances which reasonably agitate the judicial mind. Having rejected the Will in this manner, the plaintiffs claim has been decreed an the basis that he was the nearest heir and would be entitled to succeed in view of the provisions of section 15(2) of the Hindu Succession Act, 1956 (hereinafter called "the Act") and the order of succession as mentioned in section 16 of the Act.