BAPU PARASHARAM RAUT Vs. LAXMIBAI VISHWANATH KATHALE

JUDGEMENT

(1.) THE appellants - original applicants have challenged the judgment and order passed by the learned Civil Judge, Senior Division, Satara dated 19-12-1981 passed below Exhibit-1 in Regular Misc. Application No.55 of 1976. The appellants - original applicants have filed the application under section 276 of the Indian Succession Act in the Court of the learned District Judge, Satara and prayed for Probate in respect of the Will executed by Sitabai. Late Sitabai wife of Raghunath Kathale has executed a Will in presence of witnesses on 21-9-1972 by putting her thumb impression on the said documents in presence of attesting witness. The said Will was a registered Will.

(2.) UNDER the said Will the properties of late Sitabai situated at Ambvade Budruk and Kasba Parali, Taluka and District Satara were bequeathed in favour of the applicant. The valuation of the said properties comes to Rs.10,000.00. It is the case of the applicants that late Sitabai has left behind her 1) Laxmibai Vishvanath Kathale of Umbraj, Taluka Karad, 2) Babu Maruti Wagh of Waghwad, Post Banghar, Taluka & District Satara, 3) Fulabai Babu Pilaware of Ambavade Bk., Taluka Satara and 4) Indubai Balkrishna Kulkarni of Kolhapur as the heirs of deceased Sitabai. It is also the case of the applicants that the person mentioned at Serial No.1 in paragraph 4 of the application viz. Laxmibai Vishvanath Kathale is the daughter in law of Sitabai and since last 30 years she is residing at Umbraj, Taluka Karad since the death of her husband and she has never cared or looked after deceased Sitabai in her old age. It is the case of the applicants that the applicants were looking after Sitabai till her death. The application under section 276 was affirmed by applicant No.1 - Bapu Parashram Raut and as per the order of the learned District Judge, Satara, the application being Civil Misc. Application No.87 of 1976 was transferred to the court of the learned Civil Judge, Senior Division, Satara. The said proceedings were contested by the opponents by filing written statement. On behalf of opponent No.1, they have denied the execution of the Will by deceased Sitabai dated 21-9-1972 and also contended that deceased Sitabai was not in a sound state of mind. That several contentions were taken and one of the contentions was that the applicant has got the said Will executed by Sitabai by deceiving her, more particularly in paragraph 11 which reads as under:

(3.) IN the said proceedings, an application Exhibit 94 was submitted on 19-6-1981 dated 20-4-1981 on behalf of the third party and the applicant was added party to the proceedings as per order dated 3-7-1981. In support of the application, applicant No.1 Bapu Parasharam Raut was examined. Applicant No.2 has executed a Power of Attorney in favour of applicant No.1. Accordingly he has led evidence on behalf of himself as well as on behalf of applicant No.2 Bhagirthbai. Sitabai was staying in the house of Shri Vaidya at Satara. Sitabai died in 1976. According to him, opponent No.1 alone was the heir of deceased Sitabai and since 1945 opponent No.1 is residing at Umbraj. Her husband died in the year 1945 and the applicant was looking after her and maintained her since last about 10 to 12 years. On 21-9-1972 late Sitabai had executed her last Will in favour of the applicant and at the time of execution of the Will deceased Sitabai was mentally as well as physically fit. The Will was executed at the Registrar's office, Satara. Sitabai, alongwith the witnesses were in the office of the Sub-Registrar while executing the Will. The Will was written by Chandoba Kadam, a bond writer. The Will was dictated by the deceased Sitabai and after she was convinced about the contents of the documents, she had put her thumb impression on the said document. Her thumb impression was attested by the writer Dhandoba Kadam and thereafter the attesting witnesses have put their signature on the said Will. It is also the case of the appellant that the Gift Deed earlier executed by the deceased Sitabai was obtained by Shri Mane and Sitabai had filed a Civil Suit against Mane for cancellation of the said Gift Deed and the said Gift Deed was cancelled. The properties which are the subject matter of the Will were willed away in favour of Sitabai by her husband in the year 1945. The witness has also produced the Will executed by late Sitabai dated 21-9-1972. In cross-examination the witness has admitted that he is originally the resident of village Parali and the suit properties are at village Parali and Ambavade. The village Ambavade is at a distance of one mile from village Parali. The witness has further admitted that none of the applicants are related to the deceased Sitabai and further that he has no relation with applicant No.2. It is further found that the suit summons was served on him and he did not appear in that suit. It is his case that he insisted deceased Sitabai to file a suit for cancellation of the gift deed. Sitabai had three sons viz. Marutrao, Vishwanath and Ganpat. Maruti died without issue. He denied that Ganpat had a daughter by name Indutai. He denied that he used to request deceased Sitabai to execute power of attorney in his favour to collect the grains, crops from her lands. It is found from his evidence that Sitabai died in his house where he was residing as his tenant. He has denied that he has obtained false receipt to show that Sitabai was residing in Borkarwada. The suggestion that the opponent was taking care and looking after deceased Sitabai till her death was denied. He denied the suggestion that Sitabai was not mentally sound as well as physically well at the time of deceased Sitabai had no other near relatives and since both the applicants are from the same village and looking after her she executed her Will in their favour. The suggestion that opponent No.1 was with deceased Sitabai at the time of her death and she has performed the last ceremony of deceased Sitabai was denied. The witness has admitted that there were disputes between deceased Sitabai and opponent No.3 and he does not remember as to whether he had given evidence as a witness on behalf of Sitabai against opponent No.3 before the Tenancy Court. He also denied the suggestion that in the Tenancy Court his case was that he is a tenant in the lands of deceased Sitabai. The suggestion that he had obtained a Gift Deed by misrepresenting deceased Sitabai. It is further found from his evidence that in the said proceeding the contentions of deceased Sitabai in the said suit was that Gift Deed was obtained by defendants No.1 and 2 by false misrepresentation is false and that inspite of the said alleged contentions of deceased Sitabai he was looking after her. It is further found in the cross-examination that the witness has admitted that deceased Raghunath, husband of late Sitabai had landed property as well as house property. However, he could not say about the moveable property. He has further admitted that some time in 1960 or 62 the witness and Brahade Keshav Mane had managed to obtain a gift deed from deceased Sitabai in their favour. He further admitted that Sitabai was required to file a suit for declaration that the gift deed obtained by the applicants from her was not binding on her being obtained by fraud. The witness denied that in the said Regular Civil Suit No.129/1 he had engaged Shri Surle, advocate on his behalf and had also filed a written statement. The witness has also stated in the cross examination about the public notice issued on 25-4-1956 in Daily 'Sanjay'. The witness has denied that deceased Sitabai was aged 80 to 85 years at the time of her death. He had also given information about her death to the Municipality. He has denied that deceased Sitabai was unable to see and to understand at the time of execution of the will. He also denied that he has obtained the will fraudulently from deceased Sitabai.