BHAGWAT SHESHRAO CHOUDHARY Vs. CHAKRADHAR TUKARAM THAKUR

JUDGEMENT

(1.) The original defendant has filed this Second Appeal challenging the reversing of trial Court's judgment. The present respondent is the legal heir of original plaintiff kisnabai. The original plaintiff has died dunng pendency of the Regular Civil Appeal and the present respondent has come on record in her place on the strength of Will (Exh. 18) executed by Kisnabai in his favour. The suit by Kisnabai was for partition and separate possession. The suit came to be dismissed but the trial Court granted her maintenance. The said order was challenged by her by filing Regular Civil appeal under Section 96 of the Code of Civil procedure vide Regular Civil Appeal No. 98/ 1985 and the appellate Court has allowed the appeal and held that the original plaintiff was entitled to half share in the suit property. The suit property is land Survey No. 17/1 of alampur.

(2.) The case of plaintiff was that it is an agricultural land admeasuring 3 Acres, 69 gunthas having a well, electric motor pump and residential house at Alampur, owned by ramchandra and Sheshrao. The husband of plaintiff, namely Ramchandra, died on 13-09-1974. His brother Sheshrao used to look after affairs of the property. Sheshrao died on 18-10-1975 and after his death, Kisnabai was denied the share and crops. She, therefore, claimed partition and separate possession. The present appellant/defendant in that suit, took the defence that he was son of Sheshrao and ramchandra executed a Will in his favour on 20-05-1974 (Exh. 65). He stated that there was partition between Ramchandra and Sheshrao as also their mother Parvatabai and ramchandra and Sheshrao were separate. He contended that after death of Ramchandra, in view of the Will, he has become owner of the property of Ramchandra. The trial Court accepted the defence and relied upon the Will at Exh. 65. It, therefore, dismissed the suit of plaintiff. The plaintiff then filed appeal and expired during its pendency on 18-02-1990. The present respondent, who came on record as her legal heir, contended that on 08-02-1980 she has executed a Will (Exh. 18) in his favour and, therefore, he is entitled to succeed the share of Ramchandra. Thus, the appellant is son of brother of Ramchandra and respondent is the son of brother of widow of Ramchandra viz kisnabai.

(3.) I have heard Mr. Chandurkar, advocate for the appellant/original defendant and Mr. Wankhede, Advocate for respondent/ original plaintiff. Advocate Chandurkar has contended that the trial Court has erroneously refused to accept the Will at Exh. 65. He contends that Will at Exh. 65 has been duly proved but the appellate Court has refused to accept it on account of five suspicious circumstances, which according to him, do not in the eye of law constitute a reason to over rule a valid Will. He contends that as the Will exh. 65 is duly proved, the original plaintiff/ deceased Kisnabai did not become owner at any point of time and Will Exh. 18, executed by her did not confer any title upon the present respondent. He, then argues that, Will Exh. 18, is also not genuine and a valid Will because kisnabai, at the relevant time, was suffering from Cancer of neck and the Will was not read over to her and when the Will was scribed, she was not even present there. He contends that all these facts are brought on record by leading evidence and he invites attention to the evidence of one Sahebrao to substantiate these things. He further contends that Kisnabai died on the tenth day after execution of the said Will. According to him, therefore, reliance upon the will at Exh. 18 is misconceived. He argues that if the Will Exh. 65 and Will Exh. 18 are both ignored, the present appellant, being the brother's son of deceased Ramchandra is Class ii heir as per the provisions of Hindu succession Act and, therefore, entitled to succeed to the share of deceased Ramchandra in preference to the present respondent. He relied upon the judgment of the Hon'ble Apex court in Rabindra Nath Mukherjee and another Vs. Panchanan Banerjee (dead) by l. Rs. and others, AIR 1995 S. C. 1684 and pentakota Satyanarayana and others Vs. Pentakota Seetharatnam and others, 2005 air SCW 5085 : [2005 (5) ALL MR (S. C. ) 1105] to substantiate his contention. He also relied upon the judgment of Kerala High Court in P. Subramanian and others Vs. Ramchandran and others, AIR 1996 Kerala 64 to point out that the appellate Court was not justified in observing that burden of explaining suspicious circumstances was upon the propounder. He argues that the existence of suspicious circumstances is first required to be proved, as a matter of fact, by the person opposing the Will and, thereafter, only the propounder can be called upon to explain the same.