Case Note & Summary
The case involves a dispute over the validity of a Will executed by late Govindrao Ganpatrao Chimurkar, who died on 29.11.2002. The suit properties were two houses bearing Municipal Corporation Nos. 262 and 263 in Nagpur. The plaintiff, Suresh Govindrao Chimurkar, claimed that his father died intestate and sought partition and separate possession of his 1/5th share as a Class-I heir. The defendants, including the appellant Kishor Chimurkar (defendant No.2), contended that late Govindrao executed a valid Will on 26.10.1995 bequeathing the suit properties to defendant No.2. The trial court dismissed the suit, holding the Will valid. The First Appellate Court reversed this decision, declaring the Will invalid and decreeing partition. The appellant (defendant No.2) filed a second appeal in the Bombay High Court. The High Court framed five substantial questions of law regarding suspicious circumstances surrounding the Will, including the bringing of the plaintiff on record as legal representative in a pending appeal, non-production of title documents, sufficiency of attestation, non-disclosure of the Will, and the appellate court's findings. The High Court analyzed the evidence and held that the alleged suspicious circumstances were not sufficient to invalidate the Will. It noted that the attesting witness Manikrao Ingole (PW-2) had deposed about the execution and attestation, satisfying Section 63 of the Indian Succession Act, 1925. The court also observed that the testator had purchased property in the plaintiff's name, which explained the exclusion. The High Court allowed the appeal, set aside the First Appellate Court's judgment, and restored the trial court's decree dismissing the suit.
Headnote
A) Succession - Will - Proof of Will - Suspicious Circumstances - Indian Succession Act, 1925, Section 63; Indian Evidence Act, 1872, Section 68 - The court considered whether bringing on record a son who was divested from inheritance by the Will, as legal representative in a pending appeal, constitutes a suspicious circumstance. Held that such action does not ipso facto create suspicion as the beneficiary may have acted in good faith to represent the estate. (Paras 6-7) B) Succession - Will - Suspicious Circumstances - Non-production of title documents - The failure of the beneficiary to produce sale deeds of property purchased by testator in the name of the plaintiff (divested son) and his wife was held not to be a suspicious circumstance, as the plaintiff was in possession of those documents. (Paras 6-7) C) Succession - Will - Attestation - Section 63 of Indian Succession Act, 1925 - Examination of one attesting witness by either party is sufficient compliance of Section 63, provided the witness proves execution and attestation. The court held that the requirement is satisfied if the attesting witness is examined and confirms the testator's signature and his own attestation. (Paras 6-7) D) Succession - Will - Suspicious Circumstances - Non-disclosure of Will while bringing legal representatives on record - The court held that non-disclosure of the Will at that stage does not automatically amount to a suspicious circumstance, as the beneficiary may not have been required to disclose it. (Paras 6-7) E) Succession - Will - Appellate Court's findings - The First Appellate Court erred in reversing the trial court's findings without proper appreciation of evidence, particularly regarding the failure to give notice to produce documents. The court held that the trial court's findings on validity of Will were based on proper appreciation of evidence and should not have been disturbed. (Paras 6-7)
Issue of Consideration
Whether the First Appellate Court erred in holding the Will as invalid based on alleged suspicious circumstances, and whether the requirements of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872 were satisfied.
Final Decision
Second Appeal allowed. Judgment and decree of First Appellate Court set aside. Judgment and decree of Trial Court dismissing the suit restored.
Law Points
- Proof of Will
- Suspicious Circumstances
- Attestation under Section 63 of Indian Succession Act
- 1925
- Section 68 of Indian Evidence Act
- 1872
- Exclusion of legal heir
- Self-acquired property
