Indira v. Bhimraj

respondent. The respondent applied to the trial court for grant of succession certificate for receiving an amount of Rs.1500/- out of the amount of Rs.3000/- payable to Tarabai towards gratuity. The application was opposed by the petitioner on the ground that Tarabai had executed a Will in her favour on 15.8.1975 and by virtue of the said Will she was entitled to the amount of Rs.3,000/-. The trial court framed the issues and on an appreciation of the evidence on record came to the conclusion that the petitioner had proved that Tarabai had made a bequest of her property in favour of the petitioner by the Will dated 15.8.1975. Having held so, the trial court dismissed the application filed by the respondent for grant of succession certificate. The respondent filed an appeal against the judgment of the trial court dated

15.12.2000. The first appellate court, by the impugned judgment dated

3.5.2003, reversed the findings recorded by the trial court and held that the respondent was entitled to 50% amount of the gratuity payable to Tarabai. Shri Jaiswal, the learned counsel for the petitioner, submitted that the first appellate court was not justified in reversing the judgment passed by the trial court when the petitioner had produced satisfactory evidence on record to prove that the Will executed by Tarabai on 15.8.1975 was a genuine Will. It is submitted that the petitioner had examined not only her uncle with whom Tarabai had left the Will after its execution and in whose presence the /3/ wp4404-06.order Will was executed, but has also examined the attesting witness to the Will namely Shri Shyamrao Janjal. It is submitted that the first appellate court erroneously gave undue weightage to the opinion of the handwriting expert and also to the fact that the Will was disclosed belatedly after a period of 6 - 7 years. It is submitted that the uncle of the petitioner, namely Ramesh Nagardhankar has satisfactorily explained the delay in disclosing the fact about the execution of the Will in favour of the petitioner. It is submitted that the evidence of Ramesh and Shyamrao is not considered by the first appellate court in the right perspective and the first appellate court has erroneously referred to certain circumstances to be suspicious though they cannot be termed as such. The learned counsel for the petitioner relied on the judgment reported in 2007 (11) S.C.C. 621 (Savitri and others Vs. Karthyayani Amma and others) to canvass that a court is required to take a rational approach while considering the issue of the genuineness of a Will and once the propounder proves that the Will has been validly executed and signed by the testator and the testator has put his signature on the same by free will and while having a sound disposition of mind, the onus would shift on the person challenging the genuineness of the same. Shri Abhyankar, the learned counsel for the respondent, supported the judgment passed by the first appellate court and submitted that the first appellate court has rightly held that there was an inordinate delay in disclosing the Will and the delay was not satisfactorily explained. It is submitted that the evidence of the expert clearly shows that the Will did not /4/ wp4404-06.order bear the signature of Tarabai and since the expert opinion was a relevant piece of evidence, the first appellate court rightly considered the same while deciding the issue of genuineness of the Will. It is submitted that there was nothing on record to show that Tarabai did not have any love and affection towards the respondent and in fact there was material on record to show that Tarabai was treated during her illness at Mumbai where the respondent was residing and the respondent had been to Nagpur to see his mother during her illness and had also attended her funeral and had borne the expenses. The learned counsel for the respondent sought for the dismissal of the writ petition. On a perusal of the impugned judgment and on hearing the learned counsel for the parties, it appears that with the limited scope for interference in exercise of the writ jurisdiction, there is no scope for interfering with the impugned judgment dated 3.5.2003. This court would not as a third fact finding court reappreciate the evidence on record. This court is only required to consider whether the material evidence has been considered by the first appellate court and whether the findings recorded by the first appellate court are probable. Though Tarabai had expired in January 1978, it is conspicuous to note that the real uncle of the petitioner and the respondent made a disclosure about the Will for the first time in the year

1983. It is stated by the uncle in his examination in chief that he made a disclosure about the Will after the petitioner received 2-3 notices from the respondent. There is no explanation in his oral evidence as to why he did not /5/ wp4404-06.order disclose about the existence of the Will at any point of time before 1983. Normally, a person who is in possession of the Will would inform the person in whose favour the bequest has been made, immediately after the death of the testator or within a few days therefrom. In this case, the delay is inordinate and has not been explained at all. The first appellate court rightly considered this circumstance to be one of the suspicious circumstances. The first appellate court also considered the fact that the handwriting expert had clearly opined that the Will did not bear the signature of Tarabai. No fault can be found with the approach of the first appellate court in accepting the evidence of the expert. The evidence of Ramesh and Shyamrao is also considered by the first appellate court. However, the first appellate court has given more weightage to the opinion of the expert and the other suspicious circumstances while rejecting the evidence of Ramesh and Shyamrao. Though much was said on behalf of the petitioner about the fact that the petitioner was residing with Tarabai and the respondent was residing with his father who was separated from Tarabai years earlier and that was the reason Tarabai executed the Will in favour of the petitioner, the first appellate court considered the evidence tendered by the parties to find that Tarabai had good relations with the respondent also and during her ailment Tarabai was admitted in the hospital at Mumbai where the respondent was residing. There was also evidence on record in the form of admission of the petitioner in her cross-examination that the respondent had attended his mother when he was informed about her illness and had also attended her funeral and had /6/ wp4404-06.order spent for the same. According to the first appellate court, from the evidence on record it could not be said, as canvassed on behalf of the petitioner, that Tarabai had no love for her son and therefore she had executed the Will in favour of the petitioner. The first appellate court also considered the fact that Tarabai, during her life time, though she was ailing had not nominated either the petitioner or the respondent in respect of Quarter No. 750 owned and possessed by her. In fact, after Tarabai’s death the said property was recorded in the name of the petitioner as well as the respondent. The first appellate court considered some ancillary evidence in the form of the ration card which showed that Tarabai had obtained the ration card showing herself as the head of the family and including the name of the petitioner as well as the respondent in the same. The approach of the first appellate court in appreciating the evidence on record is just and proper and the judgment of the first appellate court cannot be lightly interfered with in exercise of the writ jurisdiction. The judgment reported in 2007 (11) S.C.C. 621 cannot be made applicable to the facts of the present case. Even otherwise, each case of such a nature, has to be decided on its facts. In the facts and circumstances, it cannot be said that the first appellate court committed any illegality in holding that the succession certificate should also be granted in favour of the respondent. In the result, the writ petition fails and is dismissed with no order as to costs. /7/ wp4404-06.order Shri Jaiswal, the learned counsel for the petitioner, seeks continuation of the stay granted by this court on 14.12.2006, for a period of six weeks. Though the request is opposed by the learned counsel for the respondent, since the stay is operating in favour of the petitioner since long, the same is continued for a period of six weeks. JUDGE Hirekhan