Madhya Pradesh High Court
Bherulal vs Ramkunwarbai And Ors. on 12 August, 1993
Equivalent citations: AIR1994MP5, AIR 1994 MADHYA PRADESH 5, (1994) 1 HINDULR 632, (1994) 2 CIVILCOURTC 97, (1994) 2 LJR 343
JUDGMENT A.R. Tiwari, J.
1. This first appeal, filed under Section 96 of the Code of Civil Procedure (for short 'the Code') is directed against the judgment and decree dated 19-1-1976 rendered by the 1st Addl. Judge to the Court of District Judge, Ratlam in Civil Suit No. 2-A/75 thereby dismissing the appellant's suit for partition and separate possession of the suit-houses.
2. The factual matrix in brief is that the deceased Motilal and Gendalal were two real brothers. The elder brother Gendalal was unmarried and died issueless, on 24-10-54.
The appellant-plaintiff Bherulal was born to Motilal from first wife. The two daughters (Chamelibai and Shantibai) and one son (Rajendra Kumar), respondents Nos. 2 to 4 were born to Motilal from his second wife, Ramkunwarbai (respondent No. 1). Motilal also died in 1969. The house situated in Kothariwas, Ratlam stood in the name of the brothers Gendalal and Motilal whereas the other house situated as Station Road stood in the name of Gendalal alone. Bherulal came with a case that he was an adopted son of Gendalal (this plea is given up in this appeal). On refusal of the demand of partition of these two houses, the appellant filed the civil suit as above and claimed the damages at the rate of Rs.200/- per month for wrongful use and occupation. The respondents resisted the claim and contended that one house belonged to the deceased Motilal whereas the another house was acquired by both the brothers, although in the name of Gendalal. The adoption was also disputed. It was pleaded that on death of Gendalal Motilal became the sole owner of both the houses and that in his lifetime Motilal executed a will on 15-6-59 (Ex. D/1) bequeathing his entire rights to his wife Ramkunwarbai respondent No. 1. On this linchpin, it was averred that the appellant possessed no right, title or interest. Certain other objections were also raised. On evaluation of the evidence the trial Court held that the alleged adoption was not proved, that Ramkunwarbai became the exclusive owner of the suit houses after the death of her husband Motilal and acquired exclusive rights on the basis of the will (Ex. D/1). On the basis of this conclusion the suit of the appellant was dismissed. Aggrieved by this judgment and decree, the appellant has preferred this First Appeal.
3. I have heard Shri S.D. Sanghi, learned Senior counsel with Shri N.K. Sanghi for the appellant and Shri Vyas With Shri Apte, learned counsel for the respondents and have perused the record.
4. The fate of the case hinges on the will dated 15-6-59, marked in this case as Ex. D/1. It is this document on the linchpin of which the trial Court negatived the claim of the appellant-plaintiff and concluded that the respondent-defendant No. 1, Ramkunwarbai, became the sole owner of the disputed two houses. The relevant issues are Nos. 3 and 4 (a)(b). The discussion is contained in paras 14 to 19 of the impugned judgment. This part has been vehemently oppugned.
5. Shri S. D. Sanghi, learned Senior Counsel for the appellant, has criticised the approach and eventual conclusion and urged that it deserves to be subverted. The question posed before me is whether the appellant, natural son of Motilal, Predecessor-in-interest, was liable to be so excluded from natural succession and was rightly divested of his right?
6. Shri Sanghi, in his inimitable style, strenuously submitted that suit was not liable to fail in its entirety in any case and that even, on validity of will, the appellant was not without the right and remedy. He urged that-
(a) In case of validity of will, the appellant shall get 3/4 x 1/3=1/4 share as only 3/4 would be available for devolution, 1/4 going to the legatee.
(b) In case of invalidity of will, on notional partition 1/4 each will go to Motilal, Rajendra Bherulal and Ramkunwarbai and on death of Motilal, his 1/4 share will go to widow, 2 sons and 2 daughters, i.e. each one getting 1 / 20. Thus, the appellant will get 1/4+ 1/20=3/10th share. Now that the daughter Shantibai is dead. Hence, Ramkunwarbai will get 1/4 + 1/20 = 3/10th share. The distribution would thus be as under Bherulal 3/10th share Ramunwarbai 7/20th share Rajendra 3/10th share Chamelibai 1/20th share.
7. It is thus, submitted that depending on the answer to the will, the appellant is sure to get either 1/4 to 3/10. And having made the issue nodusfree, Shri Sanghi submitted that the Court below grossly erred in holding the will as proved and valid. He thus, urged that the share of 3/10 to the appellant was undeniable and almost incontestable.
8. Shri Vyas, learned counsel for the respondents, on the other hand, with equal vehemence, supported the decree and contended that in the face of Will, Ex. D/1, the claim of the appellant was meretricious, inspired by the urge to usurp the property, and as such the decree deserved to be sustained. It was suggested that the polymorphic contention was illegal and illogical. He forcefully urged that attestation is not challenged in cross-examination and as such, it should be deemed to have been accepted without demur and that factum of registration deserved to receive proper weightage. In this pursuit, he placed reliance on AIR 1950 Nag 83 Kunwar-lal Amritlal v. Rekhlal Koduram, and AIR 1952 Nag 295, Mt. Sumantrabia v. Rishabh-kumar. It was thus submitted that the will was duly proved that the property in the hands of Motilal was not of the character of joint Hindu Family. He thus, prayed for dismissal of the appeal.
9. I proceed to examine the rival contentions centring round the crucial question about the WILL.
10. I shall first notice the reasonings of the trial Court. These can be chronicled as under-
(a) The will is a registered document and as such the normal assumption would be that "Motilal must have executed it."
(b) This presumption is fortified by the statement of the attesting witness Ramanbhai (DW 2),
(c) Motilal, testator, lived long enough (i.e. 10 years) after execution of the will. There was no allegation of fraud, misrepresentation or coercion etc.
(d) The property, subject-matter of the will, was Joint Property of Gendalal and Motilal and not ancestral in nature and, on death of Gendalal. Motilal became full owner and acquired the competence for disposition as sole owner.
(e) The language, employed in the will, was not obscure and it clearly disinherited and divested the appellant, Good conduct could give him expenses of marriage. In other words, this too was limited and qualified. This far, and no further being the essence. Even this conduct was not visible. Hence, nothing turned even on that sentimental concession of limited extent.
(i) Thus, Respondent No. 1, another wife of the testator became sole owner of these houses, Bherulal, appellant, off spring from other wife acquired nothing except identity as his son.
11. I will scrutinise the propriety or otherwise of these reasonings, and eventual conclusion resting on that fulcrum, keeping in mind the contentions as urged above.
12. In the matter of will, the Court's conscience is required to be satisfied not only on execution but also about its authenticity. As regards 'execution' Section 63 of The Indian Succession Act, 1925, illumines the path by codifying Rule (c) as under:--
"63(c).-- The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
XXXXX In the instant case, attempt has been made to prove the execution, under serious dispute, through the ocular version of DW 2 Rama-bai, falling at the most in the category of a witness who "hag received from the testator a personal acknowledgment of his signature." In other words, none was examined to testify that he saw the testator sign the will.
13. The Division Bench of this Court cautioned that, where a will is propounded in answer to a claim of Succession according to personal law. Certain features must be borne in mind. Six such features as noted below are indicated in 1959 JLJ 673 (DB) Bahramji v. Rustamji-
(1) The burden is on the propounder to prove due and valid execution of the will.
(2) In dealing with the proof of Wills a Court will start on the same enquiry as in the case of the proof of other documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator that the testator at the relevant time was in a sound and disposing state of mind; that he understood the nature and effect of the disposition and he put his signature to the document of his own free will.
(3) Ordinarily when the evidence adduced in support of the will is uninterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and the signatures required by law, Courts would be justified in making the finding in favour of the propounder. In other words the onus on him can be taken to be discharged on proof of these essential facts.
(4) If there are any suspicious circumstances sorrounding the will the initial onus becomes very heavy.
(5) The propounder of the will has to remove the suspicions from the mind of the Court by cogent and satisfactory evidence.
(6) The result of the application of these general and broad principles always depends upon the facts and circumstances of each case and the nature and quality of the evidence adduced by the parties. No hard and fast and inflexible rules can be laid down for the appreciation of the evidence. It is, in the end, a question of fact."
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14. As seen, one of the factors to be proved is that the testator at the relevant time was in a sound and disposing state of mind. On this aspect, I find that no proof is offered. It is apt to remember that mere registration is no proof that the will was duly executed as non-registration itself would not ipso facto tell against its genuineness. Is is thus clear that the trial Court has gone wrong in assuming and presuming merely by registration that "Motilal must have executed it". This is how vitiation begins. And again it was totally overlooked that how DW 2 Ramsahai could depose about so-called pesonal acknowledge ment after such a long lapse of time when such a fact is not endorsed on the document itself. The time factor is to be borne in mind. This may easily consign one to the state of paramnesia. It is hazardous to place implicit faith on such a witness whose version, to say the least, appeared to be apocryphal.
15. I have read the statement of PW 1 Seetabai,. examined on Commission. She spoke of adoption which plea is given up. PW 2 Bherulal denied signature of Motilal on the will on the ground that he was illiterate and used to affix only thumb mark. Curiously, this was not suggested to DW 2 Ramsahai, the other evidence pertained to adoption, not to will. DW 1 Ramkunwarbai claims to have learnt only from Motilal (para 9). She has no personal knowledge (para 16). The only evidence is furnished by DW 2. His statement does not inspire confidence. His version is vacillating and oscillating. He takes pleasure in saying 'yes' then 'no' about signature. The deficiency in cross-examination, as urged, does not improve the case because statement does not appear to be credible. The Registration by itself is not enough. The will is thus, not held to be proved by sufficient evidence. The nature of property is thus not very material.
16. This takes me to the contents of the alleged will. It embodied about mortgage of one house. This is not substantiated by evidence. The counsel was critical of this and voiced that this was perhaps 'bodily lifted' from some other deed and showed that some one structured the piece without awareness of the testator. Then no evidence was led to show any real reason to disinherit the appellant though of equal degree, in such a crude and rude manner. The contents, it was argued, are borne of "air nothings" and are smuggled in the document to lend some credibility when the same were apparently incredulous indeed. It is a case of one wife attempting to procure full rights for the benefit of her children and jeopardising the interests of the issue of another woman of the same man. This is inbred process. But the law is not so petrified as to pass foul matter as fair.
17. In AIR 1990 SC 396 Kalyansingh v. Smt. Chhoti it is laid down that at page 402-
"It has been said almost too frequently to require repetition that a will is one of the most, solemn documents known to law. The executant of the will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the Court to establish genuineness and authenticity of the will. It must be stated that the factum of execution and validity of the will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth from falsehood the Court is not confined only to their testimony and demeanour. It would be open to the Court to consider circumstances brought out in the evidence or which appear from the nature and contents of the document itself. It would be also open to the Court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party."
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18. More recently, this Court in M.A. No. 330/89 Shri Vasudeo v. Smt. Suman decided on 5-7-93 held that-
"The propounder is required to show by satisfactory evidence that the will was signed by the testator, that at the relevant point of time the testator was in a sound and disposing state of mind, and that he understood the nature and effect of disposition when he put his signature to the document out of his own free will."
19. As noted, the propounder is required to show by satisfactory and sufficient evidence that the will was signed by the testator, that at that time he was in a sound and disposing mind and that he understood the nature and effect of the disposition and put signature of his own free will. The case on hand contains no evidence except cryptic portion of so-called personal acknowledgment deposed to by a chance witness. His evidence is found to be untrustworthy and undependable.
20. In Civil Appeal No. 1153 of 1966, Mayadevi v. Anant Ram, as relied upon by the appellant, the Apex Court held as under:---
"Execution of the will is not proved by mere proof of the signatures on a document purporting to be of testamentary character. There must be some evidence to show that the executant was aware of the fact and had in some way indicated his mind to make a testamentary disposition. Usually this is done by adducing evidence that he had given Instructions for preparation of a will, that he had after the document was prepared, read it himself or had it read over to him and given indication to his acceptance thereof and then subscribed his signature to the will which was attested as required by the law. Moreover, if the execution of the will is surrounded by suspicious circumstances, the Court would expect that all legitimate suspicions should be completely remonved before the document is accepted at the last will of the testator. A caveat may be filed alleging exercise of undue influence, fraud or coercion in respect of the execution of the will but according to the above judgment "even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in exercuting the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter."
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21. Lord Denning elegantly observed thus -
"In construing this will, we have to look at it as the testator did, sitting in his arm chair, with all the circumstances known to him at the time. Then we have to ask ourselves:
"What did he intend"?
22. And surely such a question can be asked only if it was proved that the testator was in sound and disposing state of mind and that he understood the nature and effect of disposition and that he signed it of his own free will. There is no evidence permitting such a question being asked. Can it be easily believed that a father would disinherit an unmarried son ? Would that be the intention yielded by free will ? What was the role played by the propounder? Who drafted the Will? Who instructed the preparation? Who typed it ? How was it conceived ? Who made him understand the nature ? What was the occasion? What occasioned disinheritance of the son and conferral of rights on one wife ? There are questions and questions but no answers. Not satisfactory, at least. Suspicious circumstances are not dispelled.
23. In the ultimate analysis, I find that appreciation of evidence by the trial Court is superficial and perfunctory and evidence is neither sufficient nor satisfactory.
24. In the circumstances, differing from the findings recorded by the trial Court, I hold that the propounder has failed to prove the execution and authenticity by sufficient and legal evidence and reverse the findings on issues No. 4(a) and (b). In this view of the matter, I consider it unnecessary to allow I.A. No. 2619/91 moved under Order 41, Rule 27 of the Code, and accordingly I reject the same. The question of adoption was not pressed before me. Hence, I leave the findings on issue Nos. 1(a), (b) and 2 undisturbed. The finding on issue No. 2 ipso facto perished on invalidity of the will. It is also unnecessary to deal with other points when the will itself is held to be null and void. Rights are regulated by natural succession as per personal law. The authorities relied upon by respondents are not applicable here.
25. Now that the will is dislodged, the appellant becomes entitled to the decree. In the result, the appeal is allowed and judgment and decree are set aside. Instead the suit is decreed in the following terms -
(a) The appellant is held entitled to 3/10th share whereas the respondent No. 4 (Rajendra) is held entitled to 3/10th share and Respondents No. 1 (Ramkunwarbai) is held entitled to 7/20th share No. 2 (Chemelibai) is held entitled to 1/20th share in the suit houses.
(b) The trial Court shall issue the commission to such person as it thinks fit in terms of Order XXVI, Rule 13 of the Code, on fees determinable by it and deposited by the appellant, to be costs in the suit, to make partition according to the rights as declared in this judgment vide (a) above and to submit his report to the trial Court within two months from the date of entrustment of this job to him.
(c) The Trial Court shall also make an inquiry as to the mesne profits payable to the appellant by the respondents in proportion to the shares declared from the date of this judgment to the date of delivery of separate possession after partition in terms of Order XX, Rule 12 of the Code.
26. The appeal is thus, allowed in terms indicated above. Parties are left to bear their own costs as incurred up to this stage. Let a preliminary decree be framed accordingly.
27. On receipt of the report from the Commissioner, and on the basis of the result of inquiry as regards mesne profits, the trial Court shall pass final decree, in terms of Order XXVI, Rule 14(3) of the Code after compliance of the requirement as indicated under Order XXVI, Rule 14(2) of the Code, as regards delivery of separate possession and payment of mesne profits to the appellant-plaintiff.
28. The parties through their counsel are directed to appear in the trial Court on 30-8-93 take further orders in the matter. Let the record of the trial Court together with a copy of the judgment and decree, go back immediately for resumption of further proceedings as above. It is further said that the conclusion of the proceedings shall not be permitted to suffer undue delay.
29. As the registered will has been held to be invalid and inoperative, a copy of this judgment shall be sent to the authority concerned for the purpose of rectification of its record.
30. As the appeal was filed as indigent person, a copy of the decree shall be sent to the Collector, Ratlam for realisation of Court-fee as per law.