Dismissed

Sri. Sudhakar Phadki v. Smt. Shailaja Khadilkar

Telangana HC20 Mar 2012CMA/3234/1999

Case brief

AI extract

What is this about?

This judgment dismisses appeals filed by two petitioners against a common order granting probate of a Will dated 27-07-1993. The court found the earlier Will dated 06-08-1993 unproven due to failure to comply with Section 68 of the Evidence Act and upheld the validity of the 1993 Will, rejecting jurisdictional objections as belated.

What did the court decide?

Common order confirming grant of probate of Will dated 27.07.1993 and dismissing O.P. No.342 of 1995.

Sri. Sudhakar Phadki Vs Smt. Shailaja Khadilkar — Succession and Inheritance | Telangana HC (2012)

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HON’BLE SRI JUSTICE GHULAM MOHAMMED AND HON’BLE SRI JUSTICE K.S. APPA RAO C.M.A.Nos. 3234 and 2876 of 1999

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COMMON JUDGMENT: (Per Hon’ble Sri Justice K.S.Appa Rao)

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These two appeals are filed against the common order, dated 02-08-1999 passed in O.P.Nos.342 of 1995 and 348 of 1996 respectively on the file of the II Additional Chief Judge, City Civil Court at Hyderabad.

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2. Since both appeals arise out of the common judgment and the issue involved in them is interrelated, both the appeals are clubbed together and this common judgment is delivered. The parties hereinafter are referred to as they are arrayed in the lower Court in O.P.No.342 of 1995.

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3. The brief facts of the case, which are necessary for the disposal of these appeals, are as follows: O.P.No.342 of 1995:

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This O.P. was filed by the petitioners therein under Section 276 of Indian Succession Act, 1925 (for short ‘the Act’) for granting probate of the Will, dated 06-08-1993 pertaining to the petition ‘A’ and ‘B’ schedule properties.

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The first petitioner is a partnership firm. One Late

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Smt. Saralabai Phadke was the mother of the second petitioner and grandmother of the third petitioner, and she was living with them in petition ‘B’ schedule properties, which is a storied building bearing No.4-2-238 and 237 situated at Sultanbazar, Hyderabad. Her husband Shanker Rao Phadke pre-deceased her. Late Shanker Rao Phadke was running the partnership business under the name and style of the first petitioner in a rented premises. Originally, the said Shanker Rao and the second petitioner were partners of the first petitioner firm and after the demise of Shanker Rao, Saralabai Phadke and respondent Nos.1 and 2, who are the daughters of Shanker Rao, have become the partners and the partnership firm has been

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reconstituted. Late Saralabai Phadke was allotted with 0.20 ps. share and respondent Nos.1 and 2 each was allotted with 0.15 ps. share in the first petitioner firm.

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Late Shanker Rao had purchased petition ‘B’ schedule properties in the name of his wife Saralabai Phadke under a registered sale deed dated 15-09-1959 and it was under the occupation of late Saralabai Phadke and petitioner Nos.2 and 3, since respondent Nos.1 and 2 were married and they were living with their husbands. While so, Saralabai Phadke executed a Will and testament dated 06-081993 in a hale and healthy condition, bequeathing her 0.20 ps. share in the first petitioner partnership firm in favour of the second petitioner (son) and petition ‘B’ schedule property in favour of the third petitioner (grandson). She gave 40 tulas gold and bank fixed deposits amounting to Rs.2,50,000/- in favour of respondent Nos.1 and 2(daughters), and this fact was also mentioned in the said Will.

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The said Saralabai Phadke died on 02-09-1993 at Hyderabad. She had left the said Will with the third petitioner. In pursuance of the Will, the second petitioner became entitled to 0.20 ps share of Saralabai Phadke in the first petitioner firm while the third petitioner became entitled to ‘B’ schedule property. In fact, late Saralabai Phadke had also helped the second respondent monetarily to purchase a flat at Kutbiguda. During her lifetime, she was living with petitioner Nos.2 and 3 and the second petitioner was looking after her.

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Therefore, after the death of Saralabai Phadke, the third petitioner wrote a letter dated 17-01-1994 to the third respondent intimating the execution of the Will and requested them to pay the rents in respect of the premises bearing

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No.4-2-237 in which they have been the tenants, but there was no reply from them. Subsequently, the third petitioner got issued a legal notice dated 20-09-1994 calling upon the third respondent to pay 15 months arrears of rent at Rs.15,315/- @ Rs.1,021/- for the period from October, 1993 to December, 1994. A reply was got issued to the effect

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that the second respondent had been collecting the rents from the third respondent in pursuance of a Will, dated 27-07-1993. But, late Saralabai Phadke has not executed any such Will. The said Will would be a forged and fabricated document brought into existence to deprive the legitimate rights of petitioner Nos.2 and 3. The second respondent has no right to collect the rents and the third respondent could not have paid the rents to her. Therefore, the petitioners filed the O.P. seeking the reliefs stated above.

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The first respondent filed counter admitting her relationship with the petitioners, and stated that the first petitioner firm was reconstituted under a deed dated

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24-11-1977, under which the second petitioner got 50% share, late Saralabai Phadke got 20% share and respondent Nos.1 and 2 got 15% share each in the firm. It is denied that late Shanker Phadke purchased the petition schedule property in the name of his wife Saralabai Phadke. It is stated that the property was purchased by Saralabai Phadke as her own Stridhana by disposing of her jewellery.

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In the ground-floor of the schedule building, the third respondent has been the tenant. In the first floor, the whole family of the petitioners used to reside. While so, petitioner Nos.2 and 3 necked out their mother Saralabai Phadke from the house. Thereafter she took shelter in the second respondent’s flat at Kutbiguda. In fact, petitioner Nos.2 and 3 and the wife of petitioner No.2 ill-treated and harassed their mother late Saralabai Phadke before necking her out from the house, and the third petitioner was habituated to obtain her signatures forcibly on blank papers on the guise of submitting the same to the income tax department, registering the partnership deed and evicting the tenant etc. Under those circumstances, she came to the second respondent, namely Kusum Phadke, in search of shelter, peace, solace and medical and physical support. She had a fractured leg and was totally weak and sick, and was not in a position to move out. The second respondent secured the family doctor Sham Phadke and provided the

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treatment to her.

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On 04-04-1993, late Saralabai Phadke had decided to execute a Will and jotted down her intentions on a ruled paper in her own handwriting in Marathi, and submitted the same to a Marathi knowing Advocate, who drafted the Will in English as per her instructions. The Will was executed on 27-07-1993 in the presence of two witnesses. On the next day, the said Saralabai Phadke approached one Sri L. Sudhakar Reddy, Advocate and deposited the Will with him for the safe custody. He had issued a receipt dated 28-07-1993 for having received the Will.

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He promised to handover the same to any of the beneficiaries i.e., her children including the second petitioner. The Said receipt was given to Saralabai in a sealed cover, which was later given by her to the second respondent, her daughter.

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At the request of the second respondent, her son Vivek and one Lakshminarayana, the said Advocate L. Sudhakar Reddy opened the will on 02-12-1993 at 12-00 noon in the business premises of the first petitioner firm. He read out the contents in the presence of various persons including petitioner Nos.2 and 3 and respondent Nos.1 and 2. The said Advocate distributed the Xerox copies of the Will and the receipt to all the concerned. The original Will was handed over to the second respondent and the proceedings were endorsed on the receipt produced by respondent No.2, and it was also signed by the concerned persons. The first petitioner refused to sign it and the Advocate Sudhakar Reddy endorsed the same accordingly. Under the said Will, the deceased Saralabai Phadke bequeathed the ground floor bearing No.4-2-237 in favour of the second respondent, the first floor bearing No.4-2-238 in favour of the second petitioner and 20% of share in the business of the first petitioner firm in favour of the first respondent. Vivek, the grandson of Saralabai, had encumbered petition ‘B’ schedule property in favour of third parties as the General Power of Attorney of Saralabai Phadke.

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In implementation of the Will, the ground floor was mutated in favour of the second respondent in the municipal records, and accordingly, she has been paying the property tax. The third respondent entered into a fresh lease on 15-01-1994 in favour of the second respondent. The Will dated 27-07-1993 was the last Will executed by the deceased Saralabai Phadke. The Will dated 06-08-1993, if any, stood revoked and cancelled. Entire last 10 months of her life, the testatrix lived with the second respondent only, and the petitioners never cared to visit her even while she was admitted in the hospital.

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It was denied that late Saralabai Phadke had executed the Will dated 06-08-1993, and further stated that on that day, she was sick and bedridden in the house of the second respondent. It is a false, bogus, concocted and created document to knock away the property by petitioner Nos.2 and 3. Late Saralabai Phadke had no need or occasion to change her last Will dated 27-07-1993, and she never executed the will 06-08-1993.

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On no occasion, petitioner Nos.2 and 3 claimed that a Will was executed on 06-08-1993 or for probating the same. Late Saralabai Phadke did not have 40 tolas gold as the jewellery kept by her in the wooden almirah was retained in the first floor from where she was necked out by petitioner Nos.2 and 3. They took away her jewellery. A suit in O.S.No.1337 of 1994 was filed for dissolution of the first petitioner firm and in that connection also, the second petitioner did not whisper about the alleged Will dated 06-08-1993. As a counterblast to the said suit, petitioner Nos.2 and 3 filed the present O.P.

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It is denied that respondent Nos.1 and 2 were given gold, bank deposits or cash. The second respondent purchased the plot at Kutbiguda with her own savings from out of her salary. She was working as a Teacher and was also earning profits from the partnership business. Late Saralabai Phadke did not contribute any amount to the second respondent for purposing the flat. Petitioner Nos.2 and 3 never took care of Late Saralabai Phadke, and their eyes

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were on her property. Therefore, the petitioners are not entitled for any relief.

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O.P.No.348 of 1996:

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4. The respondent Nos.1 and 2 in O.P.No.342 of 1995 filed the present O.P.No.348 of 1996 under Section 276 of the Act for granting probate of the Will, dated 27-07-1993 said to have been executed by Saralabai Phadke. They raised self same pleas and advanced the case that their mother Saralabai Phadke executed a Will dated 27-07-1993 in respect of the petition schedule properties.

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The first respondent (Petitioner No.2 in O.P.No.342 of 1995) totally denied the case of the petitioners. He termed the Will dated 2707-1993 as a forged one. He also adopted the self same pleas which he had pleaded in connection with O.P.No.342 of 1995.

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5. Basing on the pleadings, the lower Court framed the

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following points for consideration in both the O.Ps:

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1. Whether late Saralabai Phadke had executed the Will dated 6-8-1993 as contended by Sudhakar Rao Phadke and his son Vinay Phadke and, if so, whether they are entitled for grant of probate of the said Will in respect of the schedule properties?

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2. Whether the Will dated 27-7-1993 said to have been executed by late Saralabai Phadke and as propounded by the daughters Sailaja Khadilkar and Kusum Phadke is true, valid and binding on the other members of the family and, if so, whether a probate is to be granted in respect of the said Will?

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3. To what relief?

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6. As per the orders in I.A.No.1250 of 1997 in O.P.No.342 of 1995, both the above referred O.Ps were clubbed together by the lower Court and evidence was recorded in O.P.No.342 of 1995 and the same was taken as the evidence in other O.P. also. On behalf of the petitioners, PWs.1 and 2 were got examined and Exs.A-1 to A-11 were got marked. On behalf of the respondents, RWs.1 to 6 were got examined and Exs.B-1 to B-9 and C-1 to C-4 were got marked.

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7. The lower Court, after considering the entire evidence on record, dismissed O.P.No.342 of 1995 and allowed O.P.No.348 of 1996. Aggrieved by the same, these two appeals have been filed.

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8. The learned counsel appearing for the appellants mainly

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urged that the lower Court, without appreciating the evidence of PWs.1 and 2, negatived the contention of the appellants disbelieving the Will dated 06-08-1993, which was said to have been executed subsequent to the Will dated

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27-07-1993 relied on by the respondents, which is erroneous. The learned counsel has drawn the attention of this Court to the evidence of RWs.1 and 2 regarding the authenticity of the Will dated 27-071993, and to the admission of RW-1 regarding her identification of the signature of the executant Saralabai Phadke on the Will dated 27-071993. The learned counsel further argued that the lower Court went wrong in holding that the Will dated 27-07-1993 is genuine, without there being any valid reason and basis, and therefore, the same is not sustainable, and urged that the lower Court ought not to have held that the Will dated 06-08-1993 is not true and valid. He finally argued that O.P.No.348 of 1996 filed by the respondents for grant of probate is not maintainable in view of the judgment of this Court in INKOLLU

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SASIKALA @ SHYAMALA v. INKOLLU VENKATA MURTHY^[1] .

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9. On the other hand, the learned counsel appearing for the respondents, while differing with the arguments advanced by the learned counsel for the appellants on the proposition of law laid down in the above decision, urged that the proposition of law in INKOLLU SASIKALA’s case (1 supra) that the Courts in the State of Andhra Pradesh do not have power to grant probate, is not correct in view of the law laid down by this Court in

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A.S. MURTHY v. D.V.S.S. MURTHY^[2] and GANGAVATH LALU v.

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GANGAVATHI TULSI^[3] and drawn the attention of this Court to subsection(2) of Section 213 of the Act and urged that this section shall only apply to the Wills made by any Hindu, Buddhist, Sikh or Jain where such Wills are of the classes specified in clauses (a) and (b) of Section 57 and Wills made by any Parsi, dying after the commencement of the Indian Succession Amendment Act, 1962.

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Thus any Wills executed by Hindus, if covered under Section 57(a) and (b), probate has to be obtained, which is mandatory, otherwise right as executer or legatee under such will cannot be established. The learned counsel finally urged that the present case falls under Section 57(c) of the Act because the Wills, which are the subject matter of these appeals, are claimed to have been executed after 01-01-1927 and the provisions of clauses (a) and (b) do not apply to these wills and as such when the said Wills come under Section 57(c), the bar under Section 264(2) will not apply. It is further urged that as the objection as to jurisdiction or maintainability has not been taken by the appellants before the lower Court and even at the time of filing these appeals, the appellants are now estopped to raise such objection at this stage and also in view of the fact that the appellants having filed O.P.No.342 of 1995 for grant of probate, they cannot raise this objection.

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10. The learned counsel for the respondents further argued that the lower Court appreciated the evidence of RWs.1 to 6 in right perspective and believed the Will dated 27-07-1993 under the detailed discussion, while disbelieving the Will dated

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06-08-1993 and urged for dismissal of both the appeals.

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11. Now the points arise for consideration are:

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1. Whether the impugned order is sustainable that is to say whether the Will dated 06-08-1993 executed by late Saralabai Phadke is genuine or the Will dated 27-07-1993 said to have been executed by late Saralabai Phadke is genuine? and

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2. Whether the plea of the appellants that the O.P filed by the respondents is not maintainable, is sustainable?

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POINT No.1:

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12. The Will dated 06-08-1993 was marked as Ex.A-1, whereas the Will dated 27-07-1993 was marked as Ex.B-7. The second petitioner by name Sudhakar Rao Phadke i.e., the son of late Saralabai Phadke, filed O.P.No.342 of 1995 alleging that Ex.A-1

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will dated 06-08-1993 was executed by his mother. The first respondent in O.P.No.342 of 1995, who is the first petitioner in O.P.No.348 of 1996, relied on Ex.B-7 Will dated 27-07-1993 contending that her mother late Saralabai Phadke executed the said Will. The daughter i.e., the first respondent in O.P.No.342 of 1995 and the first petitioner in O.P.No.348 of 1996 disputed the genuineness of Ex.A-1, Will dated 06-08-1993.

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13. O.P.No.342 of 1995 was the earlier proceedings and the evidence was recorded in it. The burden is on the persons, who propounded the said Wills, to prove its due execution. In a case of this nature, the mode of proving the Will does not ordinarily differ from that of proving any other document except as to the special requirements of attestation prescribed in the case of a Will by Section 68 of the Indian Evidence Act. It is also settled law that the onus of proving a Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testatrix as required by law is sufficient to discharge the onus. The propounder is called upon to show by satisfactory evidence that the Will was signed by the testatrix and the testatrix was in a sound and disposing state of mind and that she understood the nature and effect of the dispositions and put her signature to the document of her own will.

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14. In the background of the above referred legal principles, let us proceed to discuss and decide whether late Saralabai Phadke has duly executed Ex.A-1, Will dated 06-08-1993?

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15. In proof of the said Will, dated 06-08-1993, PWs.1 and 2 were got examined. According to PW-1, the first petitioner firm was constituted in the year 1953. Himself and his father had each 50% share in the said firm. His father died in the year 1977, and after his death, his mother and Respondent Nos.1 and 2 became the partners

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of the firm. At that time also, he had 50% share, his mother had 20% share and respondent Nos.1 and 2 had each 15% share in the said firm. The marriage of the first respondent was performed in the year 1963 and marriage of the second respondent was performed in 1964. His mother executed the last Will on 06-08-1993 in a sound state of mind and she bequeathed 20% of her share in the first petitioner firm in his name and also bequeathed the petition ‘B’ schedule property to the third petitioner. His mother gave 40 tolas of gold and Rs.2,50,000/- of cash to respondent Nos.1 and 2.

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As respondent Nos.1 and 2 were already given cash and gold, his mother did not convey any property to them under the Will in Ex.A-1, dated 06-08-1993. Ex.A-2 is the true English translation of Ex.A-1. At the time of execution of Ex.A-1, himself, the third petitioner, Purushottam Hamine, M.R. Padke and an Advocate Mohd. Raoof were present. His mother signed in Ex.A-1. P.K.Hamine signed thereafter as the first witness and

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M.R.Padke attested it as second witness. Mohd. Raoof, Advocate, also attested Ex.A-1. His mother has not executed any other Will prior to Ex.A-1. His mother was living with him during her lifetime. The Will dated 27-07-1993 filed by respondent Nos.1 and 2 is a forged one.

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16. During the cross examination of PW-1, he admitted that on 25-08-1993, his mother had been to the house of the second respondent and from there she was admitted in the hospital at Narayanaguda, and he did not accompany his mother to the house of the second respondent on that day, and he did not take her to the hospital but the second respondent took her there. He received a phone call on the night of 25-08-1993 about the admission of his mother in the hospital. He also admitted that he know about Ex.A-1 ever since 06-08-1993, the date of its execution. In the month of January, 1994, for the first time, he submitted an application to the Municipal Corporation of Hyderabad seeking mutation of his name in their records in respect of the said house. In the month of November or

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December, 1993, he had disclosed about the execution of Ex.A-1 to the first respondent. He positively deposed that he did not know who drafted Ex.A-1 and who typed it and where it was typed. On 06-081983 for the first time, he saw Ex.A-1 when his mother called him, his son M.R. Padke, P.K. Hamine and one Advocate. He does not know who had invited the said Advocate at that time. His mother was in the possession of a typed Will, but she signed it in the presence of the witnesses.

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It is also the evidence of PW-1 that his mother testatrix was living in his house, and himself and others were present when she executed the alleged Will Ex.A-1.

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17. Let us see whether the evidence of PW-2 corroborates the version of PW-1. It is significant to note that PW-2 nowhere stated in his chief examination or cross-examination that the testatrix late Saralabai Phadke signed Ex.A-1 Will in his presence or that she saw him attesting the same. In the chief examination, he just stated that Saralabai Phadke produced a Will typed in Marathi and read it in their presence, and that he signed it as the second witness and that one P.K. Hamine signed it as the first witness. He also stated that one Mohd. Rawoof, an Advocate/Notary, also attested Ex.A-1 Will. In the cross-examination, he admitted that he was not aware as to who typed Ex.A-1 Will and where it was typed.

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18. PW-1 also stated the same lines that he is not aware of the preparation of Ex.A-1 Will and he was not informed by his mother where it was prepared. PW-2 could not say as to who summoned him to attest the said Will. He clearly admitted that testatrix Saralabai Phadke never sent word for him for signing or attesting any document, and that during her lifetime, she never consulted him with regard to her personal and property affairs, and that he is not aware as to where Ex.A-1 was typed and who typed it. Saralabai Phadke never asked him any advice on any aspect.

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19. Except PW-2, none others were examined on behalf of the

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petitioners. There is no reason or explanation from the petitioners as to why they could not examine the other attestors P.K. Hamine and Mohd. Rawoof. Admittedly the testatrix Saralabai Phadke was owning the scheduled building apart from the share in the first petitioner firm. Ex.A-1 Will reads as if she allegedly bequeathed all her properties in favour of petitioner Nos.2 and 3 only, and there is no reference with regard to her two daughters i.e., respondent Nos.1 and 2. Admittedly the second respondent also has got a son and she has been divorced. Even PW-1 admitted that his mother used to stay with the second respondent. It is born out from the evidence of PW-1 that his sister (RW-1) took his mother to the hospital and he did not accompany his mother. In fact, at the time of her death, late Saralabai Phadke was with the second respondent. So, it is quite evident and probable that Saralabai Phadke lived with the second respondent in her last days and naturally she would have conveyed some of her properties to her also. In fact, at one stage, PW-1 stated that his mother was staying with the second respondent at the time when one Vinu performed ‘Laghu Rudra Pathan’ in his house and he had informed her about the congregation. He also admitted that in Ex.B-1 letter, his wife Sheela informed his mother Saralabai Phadke, who was living with the second respondent to attend the said congregation on 29-07-1993. He also admitted about his writing of Ex.B-2 letter dated 12-05-1993 to his mother when she lived with the second respondent. Admittedly PW-1 and the second respondent have been residing at Hyderabad only. If PW-1 is in cordial terms with his mother, he would have gone there personally to talk to her and there was no need for him to write such local letters. So, it is quite evident that the mother was living with the second respondent and that the petitioners were not so cordial or affectionate to make the deceased to bequeath all her properties exclusively to them in exclusion of her daughters and another grand son. PW-1 also admitted that he had knowledge of Ex.A-1 Will on 0608-1993 itself. Admittedly the testatrix died on

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02-09-1993. PW-1 did not take any steps for several months to act on Ex.A-1 Will. No steps were taken for getting the Will probated or applied to the Municipal Corporation for mutation of his name in the municipal records.

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20. The facts and circumstances give ample suspicion on Ex.A-1, the reason being the deceased aged about 78 years on the date of the alleged Ex.A-1 Will. PW-1 at one stage admitted that his mother was in possession of a typed Will and she signed it on 06-081993 in the presence of the witnesses. So, how

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Ex.A-1 was written, remained unproved and unexplained.

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He also admitted that the file containing original title deeds was with his mother, but he could not produce them. If the deceased had really executed Ex.A-1 Will, she could have made arrangements to hand over the title deeds also to him. PW-1 did not submit any application to the Registrar of Firms for reconstitution of the firm in pursuance of the contents of Ex.A-1 Will under which he allegedly got the share of his mother in the first petitioner firm.

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21. As stated above, except PW-2 no other witnesses were examined on behalf of the petitioners. A perusal of the evidence of PW-2, the said evidence does not inspire any confidence and the same is not sufficient in proving due execution of Ex.A-1 as required under Section 68 of the Indian Evidence Act. Non-examination of other attestors is fatal to the case of the petitioners in the background of the case on hand.

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22. Section 68 of the Evidence Act reads as follows:

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“S. 68. Proof of execution of document required by law to be attested.__ If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.”

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The Rule is that Section 68 is mandatory and cannot be relaxed except under the circumstances provided for in the Act itself. A document, which is required to be attested compulsorily by the

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attesting witness, is required to be proved in compliance with the procedure contemplated in Section 68 of the Evidence Act. It was held that proof by attesting witnesses of not merely the execution but also the attestation by two witnesses is necessary under the Section. The Section no doubt speaks of proving its execution; but under Section 59 of the T.P. Act, the actual execution must be seen and attested by at least two witnesses. ‘Attestation’ and ‘Execution’ are different acts one following the other. In the case of documents whose attestation is not compulsory, proof of execution under Section 67 is enough (ante); but in the case of documents required by law to be attested, eg., will mortgage, gift etc, ‘execution’ must include both execution and attestation as without proof of the latter such documents are not legally valid. In these cases there can be no valid execution without due attestation and if due attestation is not also proved, the fact of execution is of no avail. It has, therefore, been held in numerous cases that in the case of documents, which are compulsorily attestable, execution means something more than mere signing. It includes delivery and signing in the presence of witnesses, or on personal acknowledgment of execution by executant. It includes the whole series of acts or formalities which are necessary to give the document validity.

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23. The definition in Section 3 of the Transfer of Property Act runs thus:

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“3. Interpretation Clause:--

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'Attested’ in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time and no particular form of attestation shall be necessary.”

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According to this definition an attesting witness is a person who

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in the presence of the executant of a document puts his signature or mark on it after he has seen the executant or some one by his (executant’s) direction sign or affix his mark to it, or after he has received from the executant a personal acknowledgment of his signature or mark or of his signature or mark of such other person: but it is not necessary that more than one of such attesting witnesses shall have been present at the same time. For the validity of an instrument, attestation by two or more witnesses is necessary.

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Requirements of Attestation.—(1) The person attesting must have “seen the executant sign” (either by the executant’s own hand or by some other person by his direction), or obtained a personal acknowledgement of execution from him (executant) and thereupon singed in the presence of the executant. So, a person who though seeing an executant put his signature or mark does not sign then as a witness, but signs afterwards in the absence of the executant and without request, cannot be regarded an attesting witness. The same is the case if after obtaining a personal acknowledgment of the executant’s signature, he does not sign then and there in the presence of the executant, but does so afterwards in the absence of the executant. In any case, the attesting witness’s signature must be made in the presence of the executant.

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24. In order to judge the credibility of the witnesses, this Court is not confined only to the way in which the witnesses have deposed or to the demeanour of witnesses, but it is open to it to look into the surrounding circumstances as well as the probabilities so that it may be able to form a correct idea of the trustworthiness of the witnesses. The issue i.e., whether the testatrix executed the Will and if she executed, then whether it was duly attested by the witnesses, cannot be determined by considering the evidence adduced in the Court separately from the surrounding circumstances which have also been brought out in the evidence or which appear from the nature and contents of the document itself.

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25. In a case of this nature, where the execution of a Will is shrouded in suspicion, its proof ceases to be a simple lis between the petitioners and the respondents. In the instant case, as discussed above, it is mentioned in Ex.A-1, Will, as if the entire property of the testatrix has been bequeathed in favour of petitioner Nos.2 and 3 only. The daughters i.e., respondent Nos.1 and 2 have been totally excluded.

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The petitioners could not offer a cogent and convincing explanation of such suspicious circumstances surrounding the making of Ex.A-1 Will. It is not even the case of the petitioners that the daughters have been inimically disposed or that they have not been in cordial terms with the testatrix. Admittedly, the testatrix was living with the second respondent on the date of her death. The letters written by PW-1 and his wife, while the testatrix was at the house of respondent No.2, also indicate that the petitioners have not been in visiting or cordial terms with the mother and sisters. Even otherwise the conveying of all the properties to PW-1 and his son in exclusion of the daughters and another grandson Vivek, is a very suspicious circumstance to uphold the genuineness of Ex.A-1 Will. Furthermore, since

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PW-2, the alleged attestor himself could not speak about the testatrix signing on Ex.A-1, it cannot be said that Ex.A-1 is proved. Therefore, in any view of the matter, the petitioners in O.P.No.342 of 1985 failed to prove the execution of Ex.A-1 Will dated 06-08-1993 in their favour by late Saralabai Phadke and accordingly, they are not entitled for grant of probate of Ex.A-1 Will, dated 06-08-1993.

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26. In the present case on hand, the said mandatory provisions are not complied with as PW-2 stated that he has not seen the executrix signing of Ex.A-1 and he is not aware of the preparation of Ex.A-1 on the date of his attesting. Therefore, as the petitioners failed to comply with the mandatory provision of Section 68 of the Indian Evidence Act, it cannot be said that the execution of Ex.A-1 Will is genuine.

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27. The burden of proving that the Will, dated

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27-07-1993 was duly executed by late Salarabai Phadke in their favour, is on the respondent Nos.2 and 3 being the propounder. In order to prove the same, besides examining RW-1, the beneficiary, Rws.2 to 6 were got examined.

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28. According to RW-2, he saw the testatrix signing Ex.B-7 will. It is his evidence that late Saralabai Phadke brought a draft Will written in Marathi along with English translation from Prabhakar Rao Kulkarni, an Advocate, and at the request of the testatrix, he got the Will typed on the stamp paper given by her. On the next day, at her request, he went to the house of the second respondent, and there he read over and explained the matter and thereafter Saralabai signed in Ex.B-7, which was attested by himself and Wakode on 27-07-1993. He also stated that on the next day as Prabhakar Rao Kulkarni, Advocate, was not available, he took her to his advocate L. Sudhakar Reddy (RW-3) and deposited Ex.B-7 for which he (RW-3) passed Ex.B-6 receipt. It is also the evidence of RW-2 that subsequent to the death of the testatrix, when the beneficiaries wanted to take back the Will deposited with RW-3, he contacted him. Accordingly, on 02-121993 the said Sudhakar Reddy came to the business premises of the first petitioner firm, received Ex.B-6 receipt, which he had passed at the time of deposit of the Will, and opened the cover containing Ex.B-7 Will in the presence of PW-1 besides RW-1, RW-5, one doctor and a Chartered Accountant (RW-6). The Will was read over and the proceedings have been signed on Ex.B-6 and Ex.B-6(a). It is positively asserted by RW-2 that there was no discussion about the alleged Ex.A-1 Will at that time.

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29. The evidence of RW-3, a practicing Advocate, corroborated the evidence of RW-2. His evidence is also to the effect that Ex.B-7 Will was deposited with him and he passed Ex.B-6 receipt and opened the cover containing Ex.B-7 on 02-12-1993 in the presence of the persons referred to by RW-2, read

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over the contents of Ex.B-7 and obtained the signature of PW-1 on the reverse of Ex.B-7. RW-1, first respondent, and other witnesses were present.

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30. RW-4 is another senior Advocate Sri Prabhakar Rao Kulkarni. He also categorically stated that he knew the family of the testatrix since 1945, and that he was giving tuitions to the second petitioner (PW-1) and respondent Nos.1 and 2; and that in the month of March, 1993, the testatrix Saralabai Phadke met him and asked for drafting a Will. Then he asked her to give it in writing with regard to her desire to distribute the properties and about the details of those parties. Accordingly, in the month of April, 1993, the testatrix came to him with the details noted in Ex.X-1 with her own handwriting and signed by her. He further stated that he (RW-4) was out of station during May, 1993 and subsequently, he prepared the draft Will in English and also a Marathi version and that when the testatrix met him, he explained the contents and she took both the versions from him. By that time, the testatrix was quite normal with regard to her health and was only using a walking stick. He further stated that after the death of the testatrix, when he enquired with RW-1 and her son as to why the testatrix did not meet him, they told that the testatrix tried to contact him, but his office was found locked.

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31. Therefore, in the aforesaid backdrop, it can be said without any slightest doubt that the intimacy of RW-4 with the family of the testatrix and his attachment in respect of giving tuitions to PW-1 and respondent Nos.1 and 2 have not been denied or disputed by the petitioners, and no motive has been attributed when he supported the case of the respondents in proving the circumstances that lead for execution of Ex.B-7 Will dated 27-07-1993. Inspite of his thorough cross-examination, nothing was elicited to discredit his testimony.

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32. Another witness RW-5, Gopinath Dhopade, was examined with regard to opening of the cover containing Ex.B-7 Will in the business premises of the first petitioner by RW-3 on 02-12-1993. He

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clearly corroborated that the copies of the Will were circulated to the beneficiaries and all of them including PW-1 signed on Ex.B-6 acknowledging the proceedings of opening of the cover containing Ex.B-7 Will. He further asserted as to the details of the properties that were bequeathed in favour of PW-1 and respondent Nos.1 and 2. Admittedly his shop is at a distance of 100 yards away from the first petitioner premises. The evidence of this witness is quite believable in view of the said circumstances as he being a driver.

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33. RW-6, Tushar Sawla, is the Tax Consultant of the first petitioner firm. He was also present when Ex.B-7 Will was taken out from a cover in the business premises of the first petitioner on 02-121993. He also corroborated the evidence of RWs.1, 3 and 5 with regard to the events that took place on 02-12-1993. Even in his cross-examination, he asserted that PW-1 was contacting him on behalf of the first petitioner firm and he had introduced respondent Nos.1 and 2 when they came for filing their personal income tax returns. He admitted that he signed the proceedings noted in Ex.B-6 as a witness. Therefore, on a combined reading of the evidence of RWs.1 to 6, they consistently stated that PW-1 also signed in Ex.B-6. PW-1 also in his evidence admitted that the signature found on Ex.B-6 looks like that of him only.

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34. Admittedly Ex.B-7 Will was taken out from a cover on 0212-1993 at the business premises of the first petitioner firm in the presence of RWs.1 to 6 besides PW-1 himself. In the light of the above evidence on record, it is clear that the testatrix Saralabai Phadke initially took advise and assistance of her old family friend Mr. Prabhkar Rao Kulkarni, an Advocate (RW-4) for getting the Will drafted. After taking instructions from the testatrix under Ex.X-1 note, he prepared the draft and handed over it to her asking her to get it fairly typed and to sign in the presence of the witnesses. Accordingly, she took the assistance of RW-2 and got the Will typed. Later she

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conveyed some elderly persons and signed Ex.B-7 in their presence which included RW-1. Later as RW-4 was not immediately available, RW-2 took her to RW-3, another known advocate, and deposited the same with him under Ex.B-6 acknowledgement. Later on 02-12-1993, the Will was opened in the presence of the beneficiaries as well as the above referred elders.

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35. The series of events, as narrated by RWs.2 to 6 examined by the respondents, clearly shows the genuineness of Ex.B-7 Will executed by the testatrix late Saralabai Phadke. Furthermore, the probabilities of the contents of Ex.B-7 also give us an inference that it is genuine. According to the recitals of Ex.B-7, the testatrix bequeathed the property equally among her children. The first floor of the schedule property was bequeathed to PW-1, ground floor was bequeathed to RW-1 and her share in the business of the first petitioner firm was bequeathed to respondent No.1. It is a just distribution of the properties among her children. If the daughters really wanted to knock away the property by creating a forged Will, they would have got it prepared in the manner to gain maximum advantage and they would not have spared any items to PW-1. In that backdrop, it should be held that Ex.B-7 Will dated 27-07-1993 is a genuine document, which was executed by the testatrix late Sarlabai Phadke in a sound state of mind.

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36. In any view of the matter and consequent upon to the discussion supra, we are of the firm view that Ex.B-7 Will dated 27-071983 was executed by late Sarlabai Phadke in a sound and disposing state of mind and Ex.A-1 Will dated 06-08-1993, alleged to have been executed by her, is not a genuine Will and its execution was also not proved by the petitioner. Therefore, Ex.B-7 will dated 27-07-1993 is binding on all the beneficiaries thereunder.

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37. In the above circumstances, the findings of the lower Court while dismissing O.P.No.342 of 1995 and allowing O.P.No.348 of

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1996 holds good, and we see no grounds to differ with the same. POINT No.2:

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38. With regard to the maintainability of the petitions for grant of probate, when the appeals were heard on earlier occasion, before they were dismissed for default, the issue as to maintainability was not raised, nor the same was raised before the lower Court. After the appeals were restored to file and the present counsel came on record, this objection as to maintainability of the petitions under Section 276 of the Indian Succession Act was raised for the first time.

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39. The learned counsel for the appellants relied upon a decision of this Court reported in INKOLLU SASIKALA’s case (1 supra) wherein the learned single Judge relied on the decisions reported in A.S. MURTHY’s case (2 supra) and GANGAWATH LALU’s case (3 supra), and held that the Courts in A.P. do not have power to grant probate.

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40. In A.S. MURTHY’ case (2 supra), the matter related to a suit filed for recovery of plaint schedule properties. On the death of the first plaintiff therein, the second plaintiff came on record purporting to be entitled to the plaint schedule properties on the basis of a Will. The trial Court held that the second plaintiff was entitled to continue the suit. Challenging the same, the appeal was filed before this Court and this Court held that even without obtaining probate or letters of administration, the legatees are entitled to establish their right to the properties. Nowhere in the judgment, the Division Bench held that the Courts in A.P. do not have power to grant probate. Similarly, in GANGAWATH LALU’s case (3 supra), this Court held that it is not necessary to obtain probate of a Will or letters of administration in respect of Wills executed by Hindus within the state of A.P. in respect of the immovable properties situated within the territorial limits of the State of A.P. Therefore, the decision reported in INKOLLU SASIKALA’s case (1 supra), is based on mistaken reference of the earlier judgments which were relied upon.

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41. The Supreme Court in BALBIR SINGH WASU v. LAKHBIR

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[4] SINGH AND OTHERS , while dealing with similar issue, held at para

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5 as follows:

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“The Appellant’s counsel then contended that Section 213 of the Succession Act which requires an executor to obtain probate before establishing his claim under the Will was not applicable outside the Presidency Towns of Calcutta, madras and Bombay. Assuming this to be correct, we do not read Section 213 as prohibiting the executor from applying for probate as a matter of prudence or convenience to the courts in other parts of the country not covered by Section 213. Those courts are competent to entertain such applications, if made.”

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I n BALBIR SINGH WASU’s case (4 supra), the point for consideration was as to whether the High Court was correct in dismissing the appellant’s challenge to probate proceedings on the basis of Section 10 of C.P.C. The High Court was of the view that mere fact that the Appellant had filed a civil suit, inter alia, challenging the execution of the Will in question, did not in any way debar the High Court from entertaining probate proceedings in respect of that Will and as such proceeded to hold that both probate proceedings and the civil suit should be clubbed and heard together. A similar view was taken [5] by the Allahabad High Court in TRILOKI NATH v. KANHIYA LAL . Another decision of the Madhya Pradesh High Court reported in [6] MAYANK @ VAIBHAVA VS PUBLIC IN GENERAL has followed the decision of the Supreme Court in BALBIR SINGH WASU’s case (4 supra). Thus taking into consideration all these decisions, it can be said that for Wills executed in the State of A.P. relating to properties situated in the State of A.P., probate proceedings can be filed and are maintainable. Hence, the contention of the appellants that the probate proceedings are not maintainable cannot sustain.

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42. The relevant provisions in Indian Succession Act, 1925, in support of the above contention, are as follows:

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S.213: Right as executor or legatee when established: (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted

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letters of administration with the will or with a copy of an authenticated copy of the will annexed.

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(2) This section shall not apply in the case of wills made by Muhammadans ["or Indian Christians"] and shall only apply(i) in the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such wills are of the. classes specified in clauses (a) and (b) of section 57; and

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(ii) in the case of wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962, where such wills are made within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay, and where such wills are made outside those limits, in so far as they relate to immovable property situate within those limits.”

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Sub-section 2 of Section 213 states that this Section shall only apply to wills made by any Hindu, Buddhist, Sikh or Jain where such Wills are of the classes specified in clauses (a) and (b) of Section 57 and wills made by any Parsi, dying after the commencement of the Indian Succession Amendment Act, 1962. Thus for any wills executed by Hindus, if covered under Section 57(a) and (b), probate has to be obtained mandatorily, otherwise the right as executer or legatee under such Will cannot be established.

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43. Section 264 of the Act reads as follows:

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“S. 264: Jurisdiction of District Judge in granting and revoking probates, etc.

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(1) The District Judge shall have jurisdiction in granting and revoking probates and letters of administration in all cases within his district. (2) Except in cases to which section 57 applies, no Court in any local area beyond the limits of the towns of Calcutta, Madras and Bombay, shall, where the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, receive applications for probate or letters of administration until the State Government has, by a notification in the Official Gazette, authorised it so to do.”

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Sub-section (2) of Section 264 says that except in cases to which Section 57 applies, no Court beyond the limits of towns of Calcutta, Madras and Bombay relating to Wills executed by a Hindu, receive applications for probate or letters of administration, unless there is a notification by the State Government. The said bar under Section 264(2) will not apply to cases to which Section 57 applies.

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44. Section 57 of the Act reads as follows:

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Sec.57. Application of certain provisions of Part to a class of

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wills made by Hindus, etc.

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The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply(a) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the first day of September, 1870, within the territories which at the said date were subject to the LieutenantGovernor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and (b) to all such wills and codicils made outside those territories and limits so far as relates to immovable property situate within those territories or limits; and (c) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b).”

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The case of the respondents falls under Section 57(c) because the Wills, which are subject matter of these appeals, are claimed to have been executed after 01-01-1927 and the provisions of clauses (a) and (b) of Section 57 do not apply to these wills. As such when the said Wills come under Section 57(c), the bar under Section 264(2) will not apply. The objection as to jurisdiction and maintainability having not been taken by the appellants before the lower Court and even at the time of filing of the appeals, they are estopped from raising that objection at this stage. Furthermore, in view of the fact that the appellants themselves having filed O.P.No.342 of 1995 for grant of probate, they cannot raise this objection.

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45. Having regard to the facts and circumstances of the case, the arguments advanced by the learned counsel appearing for the appellants with regard to maintainability of the petition are not sustainable at this belated stage, and accordingly, we see no grounds to appreciate the same.

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46. In the result, both the Appeals are dismissed confirming the common judgment passed by the lower Court in O.P.Nos.342 of 1995 and 348 of 1996, dated 02-08-1999 in all respects. No order as to costs.

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____________________ GHULAM MOHAMMED, J

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_______________ K.S. APPA RAO, J

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Date: 20-03-2012 Note: L.R. copy to be marked. YCR

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[1] 2004 (5) ALD 449

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[2] 1979 (2) ALT 347 [3] 2001 (2) ALD 379

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[4] (2005) 12 SCC 503