Allowed

Ganapati Sitaram Satpute and Ors. v. Shri Dattaram Sitaram Satpute and Ors.

Bombay HC20 Apr 2005FA/972/1998

Case brief

AI extract

What is this about?

This appeal challenged the dismissal of an application for letters of administration based on a will. The court held that although a 1957 partition did not expressly allocate a share to the deceased wife, Hindu law entitled her to an equal share upon the father's death before 1956. Consequently, she had the capacity to execute a valid will, and the lower court's decision to set aside the will was

What did the court decide?

Order dismissing the application for letters of administration is set aside and allowed as prayed.

Ganapati Sitaram Satpute and Ors. Vs Shri Dattaram… — Succession and Inheritance | Bombay HC (2005)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CIVIL APPELLATE JURISDICTION

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FIRST APPEAL NO. 972 OF 1998

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 1. Ganpati Sitaram Satpute

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 2. Bhupal Sitaram Satpute

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 3. Vishwas Sitaram Satpute ..Appellants

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 versus

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 1. Shri Dattaram Sitaram Satpute

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 2. Shri Tulsiram Sitaram Satpute

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 3. Shri Kashinath Sitaram Satpute ..Respondents

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 Mr. S. G. Deshmukh for the Appellants.

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 Mr. N. J. Patil for the Respondents.

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 CORAM : D. G. DESHPANDE,J.

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 DATE : 20TH APRIL,2005

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ORAL JUDGMENT :

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 1. Heard Counsel for the Appellants and the
 Respondents.

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 2. This Appeal is filed by the original
 applicants who have filed an application for grant
 of Letters of Administration along with copy of the
 Will. That application was dismissed or rejected,
 and hence this Appeal.

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 3. Counsel for the appellants made only two
 submissions, firstly, according to him the court
 rejected the application because according to the
 court if in the partition dated 22.11.1957 only
 limited right was granted to the deceased Janabai
 then she was not competent and capable of making
 Will even in respect of her share. This conclusion
 of the court is obviously wrong because after 1956
 limited interest of a Hindu female in property was
 converted into an absolute owner, there should have
 been no findings on this aspect of the matter of the
 trial court but in any case the finding is liable to
 be quashed and set aside.

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 4. Secondly, trial court found that the
 prepounder of the Will i.e. present applicants have
 not succeeded in removing or dispelling the
 suspicion. Even this finding of the lower court is
 not consistent with the evidence that has been

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 brought on record. Firstly, the Will was a
 registered Will. Secondly, it was in respect of the
 share of the property which came to the husband’s
 lot in the aforesaid partition and of which Janabai

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 became absolute owner. Thirdly, the attesting
 witness, the scribe and the doctor were examined by
 the applicants to prove due execution and
 attestation, and, lastly, this specific defence or
 objection of the respondents are the factors that do

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 not support the ultimate conclusion of the trial
 court.

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 5. The present respondents filed a written
 statement to the application that was filed by the
 appellants. In paragraph 5 of the said written
 statement they have dealt with the Will and has
 raised the following contentions:

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"According to the defendants the so-called
Will of Janabai dated 17.7.1990 is brought
about by practising fraud or desception upon
her. In doing so applicant took advantage
of her old age which was about 90 years and
also disadvantage of the fact that since one
month before her death she was confined to
bed and she was incapable of understanding
that she was doing and what not and she was
taken to the hospital to see her grand son
and then in this manner by practising fraud
the Will was obtained."

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 It is pertinent to note that the respondents have
 not challenged the thumb impression of deceased
 Janabai on the Will. No dispute is tried to be
 raised in the written statement in that regard.

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 6. Counsel for the respondents drew my
 attention to the evidence of the doctor who was

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 examined by the applicants for proving the mental

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 state of affairs of deceased Janabai. Doctor
 Nandkumar Dattatray Badbade P.W 3 has stated on oath
 that he was knowing Janabai and her family as he was
 their family doctor. Janabai came to him on the
 morning and told him that she wanted to make a Will
 and she wanted a certificate about her physical and
 mental fitness. Doctor stated that he examined her,
 found her to be mentally and physically fit and he
 gave her a certificate vide Exhibit 61. Thereafter
 this witness Dr. Badbade was cross examined. He
 stated that Janabai was 80 years of age. He denied
 that since 4-5 years before her death she had become
 completely and totally weak. There is no other
 suggestion to the witness.

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 7. Great emphasis was led by counsel for the
 respondents on the last sentence of the witness,
 which is as under:

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"It is not true that she was the physically
and mentally fit."

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 He also drew my attention to the original deposition

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 of the witness and contended that this is not a
 typing mistake because in the original deposition
 doctor has stated that "It is not true that she was
mentally and physically fit." Counsel for the

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 respondents vehemently urged that if the doctor
 admits that she was not mentally and physically fit,
 then the whole case of the applicants was rightly
 rejected by the court.

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 8. It is difficult to accept this contention.
 It is true that in the original deposition the
 statement of the doctor recorded is with the
 suggestion that she was mentally and physically fit
 was not true. There are so many reasons why this
 has to be taken as a mistake on the part of the
 Judge recording evidence. Firstly, if the doctor
 wanted to admit that Janabai was not mentally and
 physically fit then he would not have given the
 certificate Exhibit 61. Secondly, in his
 examination in chief he would not have asserted that
 she was mentally and physically fit. Thirdly, if
 the doctor had really contradicted his certificate
 and evidence given in examination in chief then the
 lawyer of the Applicants would have certainly
 further cross examined him to seek clarification.
 Fourthly, doctor was a family doctor, knowing all
 the members of the family and Janabai for last 20
 years and in the certificate Exhibit 61 he has
 stated as under, which is forming part of the Will
 itself:

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"That Smt. Janabai Satpute of Miraj is my
patient since 1986. Today I examined her.

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Her mental and physical condition is fit,
sound and normal. I asked her in respect of
Will and she told me the contents of the
Will briefly. I feel that she has taken her
decision voluntarily."

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 Further if the Medical Practitioner gives
 certificate of the aforesaid nature in writing on
 the Will itself and if in Court he gives the
 contradictory deposition then it is a very serious
 matter and the court could have taken action against
 him. Nowhere in the judgment even the trial court
 has taken this question as an admission by the
 doctor in the manner in which counsel for the
 respondents wants to interpret it.

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 9. Therefore, the submissions made by counsel
 for the respondents that the Doctor had nullified
 the case of the applicants, is without any basis.
 The background and the manner in which the doctor
 gave evidence, it is clear that his last statement
 or sentence has not been properly reproduced by the
 judge. In any case it has to be treated as a typing
 mistake.

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 10. The applicants examined the scribe and
 attesting witness and from their evidence and
 particularly the cross examination, it is absolutely
 clear that the applicants successfully proved and

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 properly proved due attestation and execution of the
 document by Smt. Janabai and attesting witnesses.
 The Will is a registered document and she had gone
 from Miraj to Sangli to register the Will.

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 11. Counsel for the respondent drew my attention
 to the Judgment of Supreme Court reported in 2002
(6) Bom. C.R. 522 Madhukar D. Shende vs. Tarabai
Aba Shedage wherein Supreme Court in paragraph 9 has
 stated that:

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"It is well settled that one who propunds a
Will must establish the competence of the
testator to make the Will at the time when
it was executed. The onus is discharged by
the propounder adducing prima facie evidence
proving the competence of the testator and
execution of the Will in the manner
contemplated by law. The contestant
opposing the Will may bring material on
record meeting such prima facie case in
which event the onus would shift back on the

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propounder to satisfy the Court
affirmatively that the testator did know
well the contents of the Will and in sound
disposing capacity executed the same. The
factors, such as the Will being a natural
one or being registered or executed in such

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circumstances and ambience, as would leave
no room for suspicion, assume significance.
If there is nothing unnatural about the
transaction and the evidence adduced
satisfies the requirement of proving a Will,
the Court would not return a finding of "not
proved" merely on account of certain assumed
suspicion or supposition."

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 If this reasoning of the Supreme Court is applied to
 the present case, then it has to be held that
 firstly the Will is a natural Will. Beneficiaries
 are not strangers to the Will, the Will is to the
 extent of Janabai’s share in the property. Will is
 a registered one and Janabai has gone from Miraj to
 Sangli to execute the Will. Before doing that she
 obtained certificate of doctor about the physical
 and mental fitness. Scribe and the attesting
 witness of the Will have been examined. No motives
 have been proved for the scribe and the attesting
 witness to depose falsely and support the Will, the
 cross examination of this witness is of no effect at
 all.

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 12. It was next contended by Mr. Patil that in
 the partition deed dated 22.11.1957 Janabai was
 granted only a limited right only and it was further
 provided that after her death the property will pass

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 on to other legal heirs and therefore she was
 incompetent to make the Will even in respect of her
 share in the property. Mr. Patil relied upon a
 judgment of the Supreme Court reported in 1994
Mh.L.J. 1025 Gumpha (Smt.) and others vs. Jaibai.

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 In that case the last Will holder had two wives. He
 executed Will of his property in 1941 giving one
 half share to each of his wife till they are alive
 and the respondent the only daughter was to be the
 ultimate beneficiary. The testator died in 1958.
 One of his wife step mother of the respondent died
 in 1966 but few months before her death she executed
 a Will in favour of the defendant - appellant, a
 complete stranger to the family allegedly her
 domestic servant. Question before the Supreme Court
 was that it is a life estate of a widow under a will
 executed in 1941 gets enlarged into an absolute
 estate under section 14(1) of the Hindu Succession
 Act, if the succession open after the death of the
 testator in 1958. In other words according to the
 respondent the Will was invalid as the mother had
 right of maintenance only and she had no right or
 title which she could voluntarily transfer in favour
 of the appellant. The Supreme court after
 considering all the relevant provisions and the
 explanation to section 14 held that :

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 "Held, that the language of section 30 of

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the Hindu Succession Act is clear and
explicit and it creates absolute power in a
Hindu to dispose his property by will. The
section does not impose any restriction,
express or implied, except that he should be
capable of disposing of such property. If
maintenance was given in recognition of
pre-exising right, then such acquisition of
property was taken out of the purview of
section 14(2) to promote the objective of
section 14. However, if any property is
acquired by a female hindu as provided in
Section 14(2) then it would be beyond the
purview of section 14(1) of the Act. Reason
for it was that the legislature never
intended to confer larger estate on females
than on males. Acquisition of property
under a will is not mentioned in section
14(1) but falls under sub section (2). A
reading of the two sub-sections of section
14 together indicates that even though the
law was revolutionised and a female Hindu
was made an absolute owner in respect of any
property acquired by her either before or
after the date of enforcement of the Hindu
Succession Act yet the law did not intend to
confer a higher and better right than what
was enjoyed by a male Hindu. Thus, if a

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female Hindu acquires possession after the
enforcement of the Hindu Succession Act and
that possession was traceable to an
instrument or a document described in
section 14(2) of the Act, then she could not
get higher right than what is stipulated in
the document itself. Appeal dismissed.
(1977) 3 SCC 99, AIR 1978 SC 1051, AIR 1987
SC 353, Rel. (1991) 3 SCC 410, 1962 (Supp.)
3 SCR 418, 1979(3) SCC 300 and 1991(4) SCC
312."

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 Mr. Patil therefore contended that Janabai got a

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 limited right under the partition because it was
 mentioned in the partition as to what was the
 property that was given to share of father Seetaram
 and after that Janabai was to enjoy use of that till
 her life and after that the property was to go to
 other sons. Respondent Nos. 2 to 7 of the
 partition deed. Partition deed is dated
 22.11.1957.

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 13. At this juncture, it has to be borne in mind
 that this appeal is filed by the original applicants
 for grant of Letters of Administration along with
 the copy of the Will of Janabai because according to
 them Janabai had made a Will in respect of the
 property by the aforesaid Will dated 17.7.1990 and

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 the property was in possession of Janabai at that
 time. As per the evidence of this witness applicant
 No.1 Bhupal who is appellant no. 2 before the court,
 Father Sitaram died in the year 1974. He has done
 partition of his property in the year 1957 and no
 share was given to the mother at the time of
 affecting partition. Obviously the document of
 partition does not show that anything was given to
 Janabai at the time of partition. Therefore
 question is whether the aforesaid judgment of the
 Supreme Court will help the respondent in upholding
 the order in their favour.

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 14. Counsel for the appellant Mr. Deshmukh
 contended that Hindu Law came to be codified in 1956
 and so far as partition is concerned, it still holds
 good in the field. According to him that is as per
 Article 315 of the Mullas Hindu Law Eighteenth
 Edition published by Butterworths a wife cannot
 demand partition but if a partition does take place
 between her husband and his sons, she is entitled
 (except in Southern India) to receive a share equal
 to that of a son and to hold and enjoy that share
 separately even from her husband. He also relied
 upon a case rightly reported in Article 315 where at
 the partition between the father and his three sons,
 she was not allotted a share, it was held that she
 was entitled to entitled to reopen the partition,

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 there being no waiver merely by her not asking for a
 share ...."

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 15. Mr Deshmukh therefore contended that firstly
 the judgment of the Supreme Court does not come in
 the way of the applicant because that was the case
 based on a Will made by the owner of the property
 during his life time. Whereas in the instant case
 Sitaram has effected partition of a property during
 his life time. Secondly, Mr. Deshmukh contended
 that if under the provisions of Hindu law then
 prevailing regarding partition the wife was

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 entitled to equal share in the property then not
 giving her share in the partition of 1957 would not
 affect her right to an equal share i.e. equal to
 share of the sons and therefore in any case the will
 for which letters of administration were sought
 could not be affected at all.

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 16. In this case partition is of 1957. Sitaram
 father died in 1974. Janabai died thereafter. If
 therefore the property was partitioned in 1957 then
 Janabai was entitled to equal share in the property
 as that of her son and if Sitaram died without
 making any Will then in that property of Sitaram or
 in the property reserved by Sitaram for himself,
 Janabai would have a share. The Judgment of the
 Supreme Court relied upon Mr. Patil being on the

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 basis of the Will of the owner - testator, in view
 of these specific legal provision will not apply to
 the facts of the case. The position therefore
 becomes clear that so far as Will is concerned, it
 is properly proved and so far as the legal position
 is concerned, Janabai had 1/7th share in the
 property at the time of partition and after the
 death of Sitaram she would get share in that
 property also under the provisions of Hindu
 Succession Act. Admittedly, in the partition of
 1957, Janabai was not given any share and if that is
 so then the Will so executed by her in respect of
 this property cannot be faulted with. The trial
 court did not took into consideration this important
 aspects of the matter, came to a wrong conclusion
 and therefore that order of dismissal of application
 has to be set aside. Hence, order :

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ORDER

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 . Appeal is allowed.

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 . Order passed by the Civil Judge Senior
 Division, Sangli dated 10.2.1998 dismissing the
 application of the appellant for grant of Letters of
 Administration with the copy of the Will stands
 allowed, as prayed by the Appellants. No order as
 to costs.

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 20.04.2005 (D.G. DESHPANDE, J.)

Ganapati Sitaram Satpute and Ors. v. Shri Dattaram Sitaram Satpute and Ors.

Case brief

What is this about?

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Ganapati Sitaram Satpute and Ors. v. Shri Dattaram Sitaram Satpute and Ors.

Case brief

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