High Court
Legal Reasoning
(1) sa-435-1997.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO.435 OF 1997WITHCIVIL APPLICATION NO.6151 OF 1997(For Stay)Shantabai W/o Balkrushna Rade. Deceased-Through her legal representatives:-1) Shri. Sudhiranjan Balkrushna RadeAge 63 years, Occu. Retired Teacher, R/o: 97/1,4 Bhagwan Nagar, Jalgaon-425 002. 2)Shri. Shashikant Balkrushna RadeAge 61 years, Occu. Teacher, R/o: Tukaram Apartment, Wadali Section, Block No.6, Ambarnath (East), Dist. Thane.421 501. 3)Shri. Sanjiv Balkrushna RadeAge 58 years, Occu. Service, R/o: Swami Samarth Colony, Block No.13/14/1, Bhusawal, Tq. Bhusawal-425 201. Dist. Jalgaon. 4) Jaydeep Balkrushna RadeAge 53 years, Occu. Business, R/o 34/2, "Shraddha Colony" Jalgaon-425 002. ..Applicants(Orig. Appellants/Defendants)VersusSmt. Dwarakabai w/o Kashiram Chaudhary, Died per heirs and legal representatives:. 1-A) Govinda s/o Kashiram Chaudhary, Age 55 years, Occu: Service, R/o. 166, Hari Oam Nagar, Near Chirayas Society, Danteshwar, Baroda (Gujrat). 1-B) Ankush s/o Kashiram Chaudhary, Age 53 years, Occu: Service, R/o. C/o. Govinda Kashinath Chaudhary, 166, Hari Oam Nagar, Near Chiralyas Society, Dhanteshwar Society, Baroda, (Gujrat). (2) sa-435-1997.odt1-C) Hiraman s/o Kashinam Chaudhary, Age 51 years, Occu: Service, R/o. C/o R.C. Bafna Firm, Near Bhawani Temple, Bhavani Peth, Jalgaon, Taluka and Dist: Jalgaon. 1-D) Sau. Mandabai Galu Kawale, Age 49 years, Occu: Household, R/o. C/o. Galuk Dagdu Kkawale, West to S.T. Stand, Kadgaon, Taluka and District Jalgaon. 1-E) Sau. Meerabai Nathu Kawale, Age 47 years, Occu: Household, R/o. Nathu Namdeo Kawale, West to S. T. Stand, Near Timber Saw Mill, Asoda, Taluka and District Jalgaon. ..Respondents (Orig. L.R. of Plaintiff)…Mr. Sanket S. Kulkarni, Advocate for the Appellants.Mr. Girish Rane, Advocate for the Respondents.… CORAM : S. G. CHAPALGAONKAR, J. DATE : 27th FEBRUARY, 2025.JUDGMENT:-1.The appellants/original defendants impugn judgment anddecree dated 17.04.1997 passed by the Additional District Judge,Jalgaon in Regular Civil Appeal No.311/1988, thereby upholdingjudgment and decree dated 17.10.1988 passed by VIth Civil Judge,Junior Division, Jalgaon in Regular Civil Suit No.179/1986.(Hereinafter, parties are referred to by their original status for thesake of convenience and brevity).2.The respondent/plaintiff filed Regular Civil Suit No.179/1986seeking decree of possession in respect of suit land bearing GutNo.332, admeasuring 1H 48R, situated at Jalgaon contending that (3) sa-435-1997.odtone Kisan Tanu Mahajan was original owner of suit land. He wasGopabai’s second husband. During subsistence of marriage ofGopabai and Kisan, suit property was given to her formaintenance. Later on, Gopabai acquired title by statutoryimplication under Section 14(1) of the Hindu Succession Act. Theplaintiff is sister of Gopabai. Gopabai resided with her during herlast days. She bequeathed suit property to plaintiff under Willdated 20.10.1981 in presence of two witnesses. On 03.01.1982Gopabai died. Eventually, plaintiff acquired ownership andpossession of the property. The defendant is daughter of Gopabaifrom first husband. She forcibly took possession of the suit propertysometimes in the year 1984. Eventually, plaintiff institutedpresent suit for reliefs as claimed. 3.The defendant refuted the plaintiff’s claim contending thatLate Gopabai was cultivating suit land with the help of defendant.After death of Gopabai, she continued in the possession. She beingdaughter of Gopabai, her name is mutated in record of rights asowner. The alleged Will dated 20.10.1981 is bogus and falsedocument. The defendant further pleads that, since Gopabai wasresiding with the plaintiff during her last days, the Will is obtainedexercising coercion, fraud, or misrepresentation. Hence, it isinvalid. The plaintiff cannot assert any right over the suit propertyrelying upon alleged Will. (4) sa-435-1997.odt4.The Trial Court framed the issues. The plaintiff in herevidence reiterated contents of plaint. She relied upon testimony ofwitness Baliram Avasu Savdekar, attesting witness on document ofWill, whereas defendant relied upon her own evidence and fourother witnesses in support of her defence. Finally, Trial Courtaccepted plaintiff’s case and decreed the suit. 5.Aggrieved defendant filed Regular Civil Appeal No.311/1988before the District Judge, Jalgaon, which came to be dismissedupholding judgment and decree of the Trial Court. Both Courtsconcurrently held that plaintiff proved execution of Will dated20.10.1981 by deceased Gopabai bequeathing suit property to theplaintiff. The defence as raised in the written statement has beennegated by both the Courts.6.The present Second Appeal was placed before this Court foradmission on 22.01.1998 and same has been admitted withoutframing substantial questions of law. When it was posted for finalhearing on 06.02.2025, learned Advocates appearing for respectiveparties advanced their submissions on substantial questions of lawto be framed. After considering submissions, following substantialquestions of law have been framed and parties were put to thenotice that Appeal would be heard on 12.02.2025 on followingsubstantial questions of law: (5) sa-435-1997.odt(I)When earlier suit i.e. R.C.S. No.594 of 1982 filed byplaintiff was dismissed in default, whether R.C.S. No.179of 1986 is maintainable in view of Order 9 Rule 9 of CPC?(II)When in RTS Appeal No.14 of 1982 the will has been heldillegal, whether in view of explanation VIII to Section 11 ofCPC would attract in the present proceeding?(III)Whether suit filed by plaintiff was just and proper in viewof the fact that no prayer was made in respect ofdeclaration of will to be valid, when no probate was soughtby plaintiff within three years?(IV)Whether the plaintiffs have proved the will as perrequirement of law?7.In pursuance to the aforesaid order, the learned Advocatesappearing for the respective parties advanced their submissions onsubstantial questions of law as framed.8.Mr. Kulkarni, learned Advocate appearing for the appellantssubmits that plaintiff has miserably failed to prove Will dated20.10.1981. He submits that Gopabai died within a period of twoand half months after execution of so called Will. She was residingwith plaintiff in pursuance to the medical treatment. No evidenceis brought on record to show that she was physically and mentallyfit to execute the Will. Gopabai was taken to Baroda under the (6) sa-435-1997.odtpretext of eye surgery. Her eye sight was already weak. Therefore,it was obligatory on the part of the plaintiff to remove clouds ofdoubts as regards to the voluntary execution of Will by Gopabai.Even, signature appearing on alleged Will is doubtful.9.Per contra, Mr. Rane, learned Advocate appearing for therespondents submits that execution of Will has been duly provedthrough evidence of attesting witness. Nothing has been broughton record by the defendants to show that Gopabai was incapable ofexecuting the Will. PW-2-Baliram and plaintiff both have testifiedabout sound mental and physical condition of Gopabai. Thedeposition of witnesses would show that statutory requirements forproof of Will are complied with. Mr. Rane would further submitthat both the Courts have concurrently recorded findings of factaccepting valid execution of Will.10.It appears that, Trial Court had specifically framed an issueson the point of execution of Will. The Trial Court observed thatGopabai was residing with plaintiff for few years before her death.Gopabai died when she was taken to Gujrat State by plaintiff’s sonGovinda for medical treatment. The Will has been executed atplaintiff’s house in presence of two witnesses namely Baliram andGovinda. The scribe of Will is one Mr. K. L. Lokhande of Jalgaon.The evidence of attesting witness supports plaintiff’s case thatGopabai executed Will after going through its contents. The (7) sa-435-1997.odtwitness has also signed the said Will alongwith other attestingwitnesses. The Trial Court further observed that non-examinationof second attesting witness Govinda or scribe Mr. Lokhande is notfatal to the case of plaintiff. As per Section 68 of the IndianEvidence Act, one attesting witness can prove execution ofdocument. Issue of non-registration of Will is also appropriatelydealt with by the Trial Court. The Appellate Court, upon re-appreciation of the evidence on record, concurred with findings ofthe Trial Court and observed that merely because Gopabai diedwithin two and a half months, execution and genuineness of theWill cannot be doubted in view of attending circumstances andevidence on record. The Appellate Court also observed thatabsence of probate would not be a ground to discord Will in light ofSection 56 of the Indian Evidence Act, particularly when propertyis situated in village track. Eventually, Appellate Court held thatplaintiff acquired valid title over the suit land on the basis of Will. 11.It is trite that, concurrent findings of facts cannot be setaside unless perversity in appreciation of evidence is brought to thenotice of the Court. As rightly pointed out by Mr. Rane, learnedAdvocate appearing for the respondents, while interpreting Will,the Courts does not sit in Appeal over the right or wrong of thetestator’s decision. The Court's role is limited to examiningwhether the instrument propounded as the last Will of the (8) sa-435-1997.odtdeceased is or is not that by the testator and whether it is theproduct of the free and sound disposing mind. It is only for thepurpose of examining the authenticity or otherwise of theinstrument propounded as the last Will, that the Court looks intothe nature of the bequest. The Court does not substitute its ownopinion for what was the testator's Will or intention as manifestedfrom a reading of the written instrument. In that view of thematter, although in the present case Gopabai has bequeathed thesuit property in favor of plaintiff (sister) instead of followingnatural succession in favor of defendant (daughter), once thevalidity of the Will is accepted, this Court need not delve into thereasons for the course adopted by the testator.12.The Supreme Court of India in case of Gurdev Kaur andOrs. Vs. Kaki and Ors.1, observed in paragraph no.69 as under:“Now, after 1976 Amendment, the scope of Section 100 hasbeen drastically curtailed and narrowed down. The HighCourts would have jurisdiction of interfering under Section 100 C.P.C. only in a case where substantial questions of laware involved and those questions have been clearlyformulated in the memorandum of appeal. At the time ofadmission of the second appeal, it is the bounden duty andobligation of the High Court to formulate substantialquestions of law and then only the High Court is permittedto proceed with the case to decide those questions of law. Thelanguage used in the amended section specificallyincorporates the words as "substantial question of law"which is indicative of the legislative intention. It must beclearly understood that the legislative intention was veryclear that legislature never wanted second appeal to become"third trial on facts" or "one more dice in the gamble".”1AIR 2006 SC 1975. (9) sa-435-1997.odt13.In light of the aforesaid observations, this Court does not findany reason to interfere with the findings of fact regarding thevalidity of the execution of the Will and the conscious disposal ofthe suit property by Gopabai in favor of the plaintiff under theWill. 14.Mr. Kulkarni, learned Advocate appearing for the appellantssubmits that in the proceedings of mutation in the record of rights,a finding has been arrived against execution of Will, and such afinding would operate as res-judicata in view of Explanation VIII toSection 11 of the Code of Civil Procedure. This Court cannotcountenance this submissions. First of all plaintiff failed to placeon record any order passed by revenue authority, particularly orderin RTS No.14/1982, in which issue as to the validity of Will hasbeen dealt with. It appears that, along with Civil ApplicationNo.1502/2025, a copy of the order in RTS Appeal Nos.14/1982 and30/1984 has been filed. However, no grounds have been made out topermit leading of additional evidence within the parameters ofOrder XLI Rule 27 of the Code of Civil Procedure. Even otherwise,a bare perusal of the order passed by the revenue authoritiessuggests that they have not dealt with the issue of the validity ofthe Will but have merely observed that their decision in themutation proceedings would be subservient to the decision of theCivil Court. Therefore, even by taking into account additional (10) sa-435-1997.odtevidence as sought to be brought on record alongwith CivilApplication No.1502/2025, the appellants cannot derive anyadvantage. 15.It is trite that revenue authorities, while holding an inquiryin record of rights proceedings under the Maharashtra LandRevenue Code, have no jurisdiction to decide the validity of aninstrument creating title. All such questions requires decision bycompetent Civil Court. Therefore, if in given case cursoryobservations are made by the revenue authority as regards tovalidity of “title document” that shall be subservient to the decisionof the Civil Court. Even assuming that revenue authority recordeda finding in clear terms on validity of document, such findingscannot be given status of final adjudication between the parties, soas to frustrate subsequent proceeding before Civil Court byapplying principles of res-judicata under Section 11 of the Code ofCivil Procedure. In result, appellants' contention that, in light ofthe decision rendered by the revenue authority in mutationproceeding, jurisdiction of the Civil Court is barred to rule overissue of validity of Will cannot be countenanced. 16.Mr. Kulkarni would further submit that plaintiff failed to toseek declaration as to validity of Will, particularly when there wasno probate, hence suit in present form is not tenable. As observedin earlier paragraphs, probate is not a mandate of law, in case (11) sa-435-1997.odtparties are resident of rural areas. The absence of probate does notpreclude parties from relying upon Will. Further, in this caseplaintiff is seeking recovery of possession of suit property receivedby her under Will. The suit has been instituted after plaintiff lostpossession. It is true that, Courts below recorded finding thatplaintiff could not prove that she was put into possession on thebasis of Will, however, Trial Court specifically framed an issues asto whether plaintiff proved that Gopabai executed Will dated20.10.1981. The issue has been answered in affirmative,consequently, decree for possession has been passed. In that viewof the matter, although relief of declaration is not sought, suitcannot be dismissed on that count. The suit for possession hasbeen instituted when right of plaintiff to enjoy suit property wasobstructed by defendant. Therefore, there is no consequence ofabsence of claim as to the declaration of Will. No prejudice iscaused to the defendant. 17.Mr. Kulkarni lastly submits that plaintiff had previouslyinstituted Regular Civil Suit No.179/1986 seeking relief ofperpetual injunction in respect of same property, that suit has beendismissed for want of prosecution. Therefore, present suit isbarred in view of Order IX Rule 9 of Code of Civil Procedure. Tocounter aforesaid contention Mr. Rane, learned Advocate appearingfor respondents submits that suit for perpetual injunction was filed (12) sa-435-1997.odttaking cause of action as to the obstruction to the possession of theplaintiff. Later on, plaintiff lost possession and suit has beeninstituted seeking relief of recovery of possession based onindependent cause of action. According to him, bar under Order IXRule 9 or Order II Rule 2 of the Code of Civil Procedure wouldoperate only when subsequent suit is instituted on same cause ofaction. In support of his contentions he relies upon judgment of theSupreme Court of India in case of Inacio Martins (DeceasedThrough LRs.) Vs. Narayan Hari Naik and Others2.18.In the aforesaid case Supreme Court observed that whensubsequent suit was based on distinct cause of action not found informer suit, bar under provision of Order II Rule 2 of Code of CivilProcedure would not attract. Similarly, in case of Ganesh PrasadVs. Rejeshwar Prasad and Ors.3, the Supreme Court observed inparagraph no.52 as under:“52. Order IX Rule 9 bars fresh suit in respect of the samecause of action in case the earlier suit was dismissed asindicated in Order IX Rule 8 of the CPC. The term “samecause of action” assumes significance in as much as the barunder Order IX Rule 8 of the CPC applies to a later suitonly in respect of the very same cause of action. In case thecause of action in the later suit was altogether different,which has nothing to do with the cause of action in theearlier suit, the statutory bar has no application to suchlater suits. It was only with a view to curb the tendency offiling multiple suits, on the basis of the very same cause ofaction, successively even after the dismissal of the earliersuit that such a provision has been introduced. It was notthe intention of the Legislature to bar the subsequent suitsbetween the parties and the same was evident by the2(1993) 3 SCC 123.3AIR Online 2023 SC 180. (13) sa-435-1997.odtqualifying words, “same cause of action”. Therefore,everything depends upon the cause of action and in case thesubsequent cause of action arose from a totally differentbunch of facts, such suit cannot be axed by taking shelter tothe provision of Order IX Rule 9 of CPC.”19.The aforesaid exposition of law clearly depicts that bar underIX Rule 9 of the Code of Civil Procedure for institution of fresh suitwould operate, when same cause of action has been carried forwardin fresh suit on the basis of which earlier suit was filed. In presentcase, earlier suit was filed simplicitor claiming relief of perpetualinjunction giving cause of action as to the obstruction in herpossession. The present suit is instituted later on with specificcontention that defendant has forcibly taken over possession fromplaintiff. Therefore, nature of relief in both the suits and cause ofaction is totally independent. At the time of the institution of theprevious suit seeking relief of perpetual injunction, the cause ofaction pleaded in the present suit could not be found. It is clearlybased on subsequent event. Therefore, when later suit is institutedon altogether different cause of action, which has nothing to dowith cause of action in earlier suit, the bar contemplated underOrder IX Rule 9 of the Code of Civil Procedure would not unsuitthe plaintiff.20.In that view of the matter, Second Appeal sans merit andaccordingly dismissed.
Decision
(14) sa-435-1997.odt21.In view of dismissal of Second Appeal, nothing survives inCivil Application for stay and same is accordingly disposed of.(S. G. CHAPALGAONKAR)JUDGEDevendra/February-2025