Madhya Pradesh High Court
Bhagwanti Bai vs Ranchhodlal Porwal on 28 March, 2018
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HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
S.B.: HON'BLE SHRI VIVEK RUSIA, J.
First Appeal No.126/2001
Smt.Bhagwantibai Porwal
Vs.
Smt. Munnibai and one another.
Shri Santosh Chaurasia, learned Counsel for the appellant.
Shri K.Sinjonia, learned Counsel for the respondents.
JUDGMENT
(Delivered on this day 28th day of March, 2018) Appellant/plaintiff has filed the present appeal being aggrieved by judgment and decree dt. 22.1.2001 passed by first ADJ Ujjain, by which Suit No. 3-A/1999 has been dismissed.
Facts of the case are as under:-
02. The plaintiff and respondent No.1 are real brother and sister. The defendant No.2 is their mother. The defendant No.3 is Son of defendant No.1. Plaintiff filed the suit for House No.75 and 76 for partition, possession and recovery of money against the defendant.
03. According to the plaintiff, the suit property was initially 16 owned by Magniramji, who adopted Shri Bherulalji, i.e. father of plaintiff and defendant No.1 Shri Magniramji, executed the Will dt. 2.11.1959 in favour of Bherulal,and afther death of Magniramji, Bherulal became absolute owner of the suit property and his name was mutated in the revenue record. The plaintiff got married to Kailashchand, but after four years of marriage, she stated living with her father in the suit house. His father used to give her share in the rent received from the tenant in House No.76. Bherulal, died on 29.4.1995 and thereafter defendant No.1 has stopped giving share in the rent to the plaintiff which she used to get during life time of the father Bherulal. She has further alleged that during life time Bherulal, has partitioned the property between plaintiff and defendant No.1. but after the death, the defendant No.1 has not got the property. The defendant No.1 prepared a Will dt. 11.3.1994 which is forged and bogus and does not affect the right of the plaintiff over the suit property.
Being a daughter of Bherulal, she is entitled for ½ or 1/3 rd share in the movable as well as immovable property of 16 Bherulal.
04. Defendant No.1 and 2 filed the written statement refuting the allegations made in the plaint by submitting that Bherulal, was exclusive owner of the suit property. The behaviour of plaintiff with her father and mother was not cordial and, therefore, Bherulal, has executed the Will in favour of defendant No.1 and 3 for his entire movable and immovable property. The Will is registered and executed in presence of two witnesses. The plaintiff is residing with her husband and unnecessarily occupying one room measuring 4x6 sq ft. in House No.76.
05. The defendant No.3 filed the written statement independently in the same line that the plaintiff is not having any share in the property and by virtue of Will, the defendant No.1 and 3 have become owner of the suit property hence, the suit is liable to be dismissed.
6. On the basis of pleadings, the Learned ADJ Ujjain, has framed 14 issues for adjudication:-
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fLFkr x`gØekad 76 ds ry eafty dk ,d dejk tks pkS[k.Mh ds ikl gS] okfn;k ds vkf/kiR; esa Hks:yky ds thoudky ls gh pyk vk jgk gS \ 2& D;k x`gØekad 75 o 76 dh nqdkuksa dk fdjk;k Hks:yky nqdkuksa ls izkIr izekf.kr ughA djds okfn;k dks nsrs Fks \ a 3& D;k izfroknh Ø- 1 us mijksDr fdjk;s dks voS/k :i ls okfn;k dks fn, ughA tkus ls jksd fn;k gS \ 4& a D;k izfroknh Ø- 1 us okfn;k dks edku ua- 76 ds pkS[k.Mh okys dejs ds izekf.kr ughA vkf/kiR; ls tcju vkf/kiR;P;qr dj fn;k gS \ 5&a D;k izfroknh Ø- 1 us Lo- Hks:ykyth dh lEifRr ls 20 rkSyk lksuk izekf.kr ughA o 2]00]000@& ¼nks yk[k :i;s½ :i;s dh jkf'k izkIr dh Fkh \ 6& D;k vadikr ekxZ mTtSu dk 30 X 60 dk IykWV dher 50]000@& :i;s izekf.kr ughA o xkSreiqjk dk 25 X 40 dk IykWV izfroknh Ø-1 us Hks:yky ls :i;s izkIr djds Ø; fd;k Fkk \ 7& D;k okfn;k }kjk viuk fgLlk ekaxs tkus ij] izfroknh Ø- 1 us mlds oknh dk LFky o LoRodksa vLohdkj fd;k \ fgLlk gksuk izekf.kr ughA 8& D;k izfroknh u- 1 us Hks:ykyth dh lEifRr;ksa ds fo"k; esa olh;rukek izekf.kr ughA fnukad 11&2&94 dks QthZ o cksxl rkSj ij rS;kj djk;k gS \ 9& D;k okfnuh dh okf"kZd vk; 6000@& :i;s ls de gksus ls og U;k;'kqYd gkWa vf/kfu;e dh /kkjk 35 ds varxZr izdk'khr vf/klwpuk ds vuqlkj U;k;'kqYd ls eqfDr dh ik= gS \ 10& D;k Hks:ykyth us viuh py lEifRr :de.khckbZ dks ns nh Fkh vkSj olh;r ds gkWa }kjk mls mldh ekfyd ?kksf"kr dj fn;k \ 11& D;k okfnuh us efgniqj esa mldh lEifRr gksrq gq, mlds vfLrRo dks fNikdj ;g okn izLrqr fd;k gS \ izekf.kr ughA 12& D;k okfnuh dks Hks:ykyth }kjk NksM+h xbZ mijksDr py o vpy leifRr;ksa ughaA esa ls 1@2 LoRo izkIr gS \ 13& lgk;rk ,oa O;;- pj.k Ø- 29 vuqlkj okn fujLrA 14& D;k Hks:yky }kjk dh xbZ olh;r ds vuqlkj Hks:ykyth us okn&xzLr olh;r izekf.kr leifRr esa vkseizdk'k dks vpy lEifRr esa vk/kk fgLlk fn;k Fkk \ vkseizdk'k dks ;fn gkWa rks D;k og bl izdj.k esa vko';d i{kdkj gS \ i{kdkj cuk;k tk pqdk gSA okn fo"k;
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07. The plaintiff examined herself as PW-1, Hemraj as PW-2, Ramniwas as EP-3. The plaintiff have got exhibited 16 documents as Ex.P/1 to Ex.P/16. The Will of Magniramji, was marked as Ex.P/4.
08. The defendants have got examined Ranchodlal, as DW-1, Hemraj, as DW-2, Lalsingh, as DW-3 and Rukmanibai, as DW-4. 16 The plaintiff got exhibited the Will of Bherulal, on 13.9.1994 as Ex.D/1.
09. The learned ADJ Ujjain, has first decided the Issue No.8,10 and 14 framed on a question of validity of the Will. Since the plaintiff had pleaded that the Will is bogus and not binding on her therefore, the learned Court has casted burden on plaintiff to prove the same. While recording the finding, the learned ADJ Ujjain, has held that the plaintiff has failed to discharge the burden as the defendants have examined two attesting witness and the Will is registered one. Since the issues in respect of the Will have been recorded in favour of the defendants by which entire property was given to them therefore, other issues were also recorded against the plaintiff and finally vide judgment and decree dt. 22.1.2001 the suit has been dismissed.
10. Being aggrieved by the dismissal of the judgment and decree, the plaintiff has preferred the present appeal before High Court.
11. That the appellant plaintiff has assailed the judgment and decree mainly on the ground that the learned Trial Court while deciding the Issue No.8, 10 and 14 did not consider the mental 16 and physical condition of Bherulal, as he was not medically fit to execute the sale deed. The attesting witnesses are related witness to the defendants. The plaintiff is in possession of her share since last 30 years and used to get the share in the rent received from the suit property therefore, the Will is suspicious because entire property has been given to defendant No.1 and 3 and nothing was given to the plaintiff. The plaintiff was very much affectionate to her father Bherulal, who used to take care of her by permitting her to reside in the house and used to give share in the rent. All these circumstances create the suspicion in respect of the Will and the learned ADJ Ujjain, has dealt such serious issue in a very casual manner and the judgment and decree is liable to be set- aside.
12. The learned ADJ Ujjain, has also failed to consider that at the time of execution of the Will, the defendant No.2 i.e. wife of Bherulal, was alive therefore, he could have executed the Will in favour of wife instead of in favour of defendant No.1 and 3 and that also creates suspicion about the validity of the Will. The plaintiff being a natural daughter of Late. Bherulal, is having equal share with the defendant No.1 in the property which cannot 16 be denied to her hence, the judgment and decree is bad in law and liable to be set-aside.
13. The learned Counsel appearing for the respondents have argued in support of the Will by submitting that Late. Bherulal, has executed a registered Will in favour of the defendant No.1 and 3. The marriage of the plaintiff was performed and she was residing with her husband and unnecessarily claiming share in the property of Bherulal. The plaintiff has failed to prove the Will as suspicious and bogus whereas, the defendants has specifically proved the Will as per Section 68 of the Indian Evidence Act. The learned ADJ Ujjain, has passed a well reasoned order after appreciating the evidence on record which calls for no interference.
14. Undisputedly, the property was initially owned by Magniramji, who has executed the Will in favour of his adopted Son Bherulal, and after death of Magniramji, Bherulal, became the absolute owner of the property. Since Bherulal, received the property by way of Will, therefore, it was his own property for which he was free to execute the Will. In absence of Will, the plaintiff might have some share in the suit property being a 16 daughter of Bherulal, but there is a registered Will in favour of the defendants hence, the plaintiff would not get the property unless, the said Will is declared invalid. The Will is required to be proved in terms of provisions of Section 68 of the Indian Evidence Act and the Hindu Succession Act.
15. If any question arises about the authenticity of the Will, the propounder of the Will is required to show satisfactory evidence that the Will was signed by the testator and if at the relevant time, he was very much in sound and disposing state of mind by calling atleast one attesting witness. This is also a mandate of Section 68 of the Evidence Act. If the propounder has successfully discharged his burden as required under Section 68 of the Evidence Act then, burden is casted upon the plaintiff who is assailing the validity of the Will. The Apex Court in recent decision in the case of Ramesh Verma vs. Lajesh Saxena and another reported in (2017) 1 Supreme Court Cases 257 has held that the propounder had to show that Will was signed by testator and that testator was in sound and disposing state of mind at the relevant time.
Para 13 to 15 are reproduced below:-
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13. A will like any other document is to be proved in terms of the provisions of Section 69 of the Evidence Act and the Succession Act, 1925.
The propounder of the will is 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 put his signature to the document on his own free will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. This is the mandate of Section 68 of the Evidence Act and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement.
14. In savithri v. Karthyayani Amma this Court has held as under:(SCC p.629, para 17)
17.....A will like any other document is to be proved in terms of the provisions of the Succession Act and the Evidence Act. The onus of proving the will is on the propounder. The testamentary capacity of the testator must also be established. Execution of the will bu the testator has to be proved. At least one attesting witness is required to be examined for the purpose of proving the execution of the will. It is required to be shown that the will has been signed by the testator with his free will and that at the relevant time he was in sound disposing state of mind and understood the nature and effect of the disposition. It is also required to be established that he has signed the will in the presence of two witnesses who attested his signature in his presence or in the presence of each other. Only when there exists suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before it can be accepted as genuine."
15. It is not necessary for us to delve at length to the facts of the matter as also the evidence adduced by the parties before the High Court. Suffice it to note that the execution of the wills has to be proved in accordance with Section 68 of the Evidence Act.
16. The learned ADJ Ujjain, has rightly appreciated the evidence given by the defendant and held that the Will is validly proved by them. The DW-1 defendant has stated that Bherulal, died on 29.4.1995 due to heart attack. Before death he was suffering from bronchitis, Asthama but otherwise the death was normal and the treatment was going on. The Will was executed one year back from death in the Court premises by which House No.75 and 76 were given to defendant No.3 who is the grand 16 Son. Movable properties were given to the wife i.e. defendant No.2. Thereafter he went to the Office of Registrar along with two witnesses and in presence of the Registrar, Bherulal, and two witnesses signed the Will. Thereafter it was registered and filed and marked as Ex.D/1 in the suit. The defendants have also examined attesting witness Hemraj and Lalsingh, as DW-2 and DW-3 respectively who have also categorically deposed that Bherulal, had executed the Will in favour of the defendants and did not gave anything to the plaintiffs. DW-2 has specifically stated that one witness was necessary therefore, he called his friend Lalsingh, DW-3 and at the time of execution of the Will Bherulal, was aged about 60-65 years and was not suffering from any ailment. Likewise, defendant No.3 has also supported the case of defendants and admitted his signature over the Will. The defendant No.2 mother was examined as DW-4 who has also supported the Will. The plaintiffs used to fight with her father and because of which he was called in the Police Station also therefore, the defendant No.2 being mother of the plaintiff did not support the plaintiff. The learned ADJ Ujjain, has rightly held that the defendants have successfully proved the Will. So far as 16 the plaintiff is concerned, in her deposition she has alleged that the mental condition of Bherulal, was not sound and he was suffering from Bronchitis. Apart from this, oral evidence she has not produced any other evidence to show that at the time of death of Bherulal, was incapable of execution of the Will. The plaintiff has failed to produce any concrete evidence which can create the doubt over the validity of the Will. The plaintiff was not able to digest that her father did not give anything to her in the property therefore, she filed the suit claiming share in the property. In the Will Bherulal, has specifically stated that she do not want to give anything to her daughter Bhagwantibai, i.e. plaintiff because he has already given to her in the marriage and his behaviour towards him and with her wife is not cordial and she is habitual fighter. By way of Will not only the movable but immovable properties were given to the defendants 1 to 3 but specifically nothing was given to the plaintiff therefore, in view of the above law laid down by the Apex Court in case of Ramesh Verma (supra) the learned Trial Court has rightly dismissed the suit after appreciating the evidence which do not call for any interference and hence, I do not find any merit in the appeal and same is 16 hereby, dismissed. The judgment and decree is, hereby, upheld.
No order as to cost.
(VIVEK RUSIA)
M.Jilla. Judge
Digitally signed by Maharukh jilla
Date: 2018.03.31 12:26:59 +05'30'