Madhya Pradesh High Court
Savitri Bai vs Savitri Bai & Ors on 28 July, 2011
1
S.A. No. 395/1997
HIGH COURT OF MADHYA PRADESH: JABALPUR
SINGLE BENCH:
HON. SHRI JUSTICE A.K. SHRIVASTAVA
SECOND APPEAL NO. 395/1997
......... Appellant : Savitri Bai, wife of Jawaharlal
Kachhwah, aged about 42 years,
R/o Ishwaripura Ward, Katni,
Post Katni, District Jabalpur (M.P.)
Versus
.......Respondents : 1. Savitri Bai, widow of Shankerlal and
daughter of Babulal Kahar (Barau)
Aged about 57 years
2. Meghraj, S/o Shankerlal Kahar,
Aged about 26 years,
3. Smt. Suhadra Bai, widow of Babulal
Kahar, aged about 58 years,
4. Madanlal, S/o Babulal Kahar, aged
about 42 years,
5. Ratanlal, S/o Babulal Kahar, aged
about 38 years,
6. Ramesh Kumar, S/o Babulal Kahar,
aged about 34 years,
7. Suresh Kumar, S/o Babulal Kahar,
aged about 27 years,
8. Ashabai D/o Babulal Kahar, aged
about 31 years,
9.Baby, D/o Babulal Kahar, aged
about 28 years,
All residents of Ishwaripura Ward,
Katni, Tehsil Katni, Distt. Jabalpur
................................................................................................
Appellant - Shri Dinesh Upadhyay, Advocate
Respondents 1 & 2 - Shri Jagtendra Prasad
Respondents 4 to 7 - Shri Anoop Sanghi, Advocate.
...............................................................................................
JUDGMENT
(28/07/2011) 2 S.A. No. 395/1997
1. This is plaintiff's second appeal having lost from both the Courts below as his suit for declaration and possession has been dismissed by the learned Trial Court and his first appeal has been dismissed by the impugned judgment and decree.
2. The name of plaintiff is Savitri, wife of Jawaharlal Kachhwah and that of defendant no.1 is also Savitri Bai, widow of Shankerlal.
3. In brief, the case of the plaintiff is that the house in question was owned by Suhadri Bai, Madanlal, Ratanlal, Ramesh Kumar, Suresh Kumar, Meghraj, Asha Bai, Baby and defendant no.1 Savitri Bai. Vide registered sale deed dated 18.1.1979, Ex. P/1 for a consideration of Rs.5000/-. these persons executed a sale deed in favour of plaintiff and possession was also delivered to him. However, although the suit property was sold to the plaintiff, but, defendant Savitri illegally dispossessed the plaintiff and took possession of the same.
4. A notice was sent by plaintiff on 25.7.1979 to vacate the suit premises but the same was not replied. Again another notice was sent on 14.9.1979 by the plaintiff to the defendant no.1 to get the suit premises vacated but the 3 S.A. No. 395/1997 same has not been vacated by her and she is possessing the suit property as trespasser. Hence, a suit for declaration, possession and for mesne profit has been filed by the plaintiff.
5. Defendant Savitri filed her written statement and pleaded that earlier to the execution of the sale deed, Babulal who was her father executed a will in favour of her son Meghraj in the year 1977 and the disputed house was bequeathed by him in favour of her minor son Meghraj and later on her father died in the year 1978. After his death, on account of will in favour of Meghraj he became the owner of the suit property. The factum of executing the sale deed in favour of plaintiff has been denied by her and also denied that the possession was delivered to the plaintiff. According to the defendant Savitri, after the death of her father she migrated from Damoh and started living in the disputed house at Katni. Further she has pleaded that Suhadri, Ratanlal, Madanlal etc. got some property sold to the tenants and at that juncture it was stated to her that to get the property sold, the signatures of defendant Savitri is also necessary. The defendant-Savitri being an illiterate lady and 4 S.A. No. 395/1997 was having faith on these persons put her signatures on some sale deeds.
6. It is borne out from the pleadings, documents and evidence placed on record that Babulal was having two wives. From his first wife defendant Savitri was born and after her death he married with Suhadri Bai whose sons are Madanlal, Ratanlal etc. Hence, the defendant Savitri prayed that the suit be dismissed.
7. Since defendant Savitri in the written statement set-up a pleading of execution of will in favour of her son Meghraj by Babulal, the plaintiff amended her plaint and pleaded that the alleged will is a concocted document and by putting forged signatures of Babulal, the said document has been manufactured and by amending the plaint also prayed that the will dated 23.3.1977, Ex. D/1 alleged to have been executed in favour of Meghraj be declared a forged document. Plaintiff also impleaded Meghraj as defendant no.2.
8. The defendant Savitri Bai amended her written statement and pleaded that the documents on which her signatures were obtained by her step-brothers is in favour of plaintiff, and some other persons and in this regard 5 S.A. No. 395/1997 amendment in para 2 of the written statement may be seen. Meghraj-defendant no.2 filed a separate written statement and has pleaded that his maternal grandfather executed a will in his favour in the year 1977. Further he has pleaded that his mother Savitri-defendant no.1 never executed any sale deed in favour of plaintiff. On account of the will in his favour, he became the owner of the suit property after the death of maternal grand-father Babulal and hence prayed that the suit be dismissed.
9. Learned Trial Court after framing necessary issues recorded the evidence of the parties and dismissed the suit. The first appeal which was filed by plaintiff has been dismissed by the impugned judgment and decree.
10. This Court on 18.9.1998 admitted the appeal on the following substantial questions of law:-
(i) "Whether the Courts below erred in law in holding that the plaintiff did not derive title by virtue of registered sale deed dated 18.1.1979?"
(ii) "Whether the will purportedly executed by Babulal in favour of Meghraj, son of defendant no.1 is genuine or not?"
11. The contention of Shri Dinesh Upadhyay, learned counsel for the appellant is that in order to get rid off from 6 S.A. No. 395/1997 the clutches of the sale deed executed by defendant no.1 Savitri along with her step-mother, step-brothers and sisters dated 18.1.1979 (Ex. P/1) in favour of plaintiff, a concocted story of will has been set up by the defendants. Learned counsel further submits that defendant Savitri, in her written statement by amending it, has specifically pleaded that she put her signatures, on being asked by her step-brothers, on certain sale deeds including the impugned will executed in favour of plaintiff and because defendant Savitri herself is one of the vendor of plaintiff, it is as clear like a noon day that after the execution of the sale deed a false and concocted document of will of Babulal dated 23.3.1977, Ex.D/1 has been cooked upon, because if there was already a will in favour of her son Meghraj, certainly, she would not have sold the suit property along with her step- mother, step-brothers and sisters after the death of her father Babulal. Since she is one of the vendor, setting up the story of will is apparently concocted.
12. Learned counsel further submits that looking to the facts and circumstances of the case, the alleged will dated 23.7.1977 (Ex. D/1) cannot be said to be a genuine will and because the plaintiff bought the suit property vide registered 7 S.A. No. 395/1997 sale deed dated 18.1.1979 (Ex. P/1), he is the owner of it and hence suit for declaration and possession be decreed.
13. On the other hand, Shri Anoop Sanghi, learned counsel for the respondents argued in support of the impugned judgment.
14. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed.
Regarding Substantial Question of Law No.2:-
15. On bare perusal of the plaint this Court finds that plaintiff was not aware about the alleged execution of will executed by Babulal in favour of defendant no.2 Meghraj (son of defendant no.1-Savitri). Indeed, his simple case is that on the basis of the sale deed Ex. P/1 dated 18.1.1979 by which the suit property was sold not only by defendant no.1 but was also sold by her step mother, step brothers and sisters and possession was also delivered to him. However, later on he was dispossessed by the defendants. It be seen that only when the written statement was filed by the defendant Savitri, plaintiff came to know that defence of a will has been set up by her in the written statement and hence by amending the plaint, the plaintiff also sought declaration that the will is a concocted document and is not 8 S.A. No. 395/1997 a genuine will and in order to save the skin from the clutches of the registered sale deed dated 18.1.1979, the story of a will has been cooked up. The plaintiff also arrayed Meghraj as defendant no.2 by way of amendment and also prayed relief against him.
16. The factum of execution of sale deed has not been so denied in so many words by defendant Savitri who is party to the sale deed, Ex. P/1. If the amendment made by defendant no.1 in her written-statement after para 2 is seen, it can be inferred that defendant Savitri was having knowledge of execution of the sale deed because she has pleaded by way of amendment at the end of para 2 of her written statement that in some of the documents she put her signatures including the sale deed in favour of plaintiff. It would be apt to quote the amended pleading of para 2 of the written-statement which reads thus:-
" ftuds nLrkostkas ij ij izfroknh us gLrk{kj fd;s muds uke bl izdkj gS (1) okfn;k (2) yQjok (3) xqMMw (4) eksrhyky A dfFkr fodz; i= mijksDr dzsrkvksa dzekad 1 ls 3 ds i{k esa fnukad 18@01@1979 dks fd;s x;s rFkk dzekad 4 eksrhyky ds i{k esa fnukad 18@1@1979 ds dqN le; okn fd;k x;k bldh rkjh[k izfrokfn;k dks ugha ekywe gSA Hence, it can be inferred that the sale deed executed by her along with other vendors is admitted to her. Although it has 9 S.A. No. 395/1997 been pleaded in the earlier part of para 2 of her written statement that she is only little literate and on the assurance given by her step brothers and sisters she put her signatures on certain sale deeds. Thereafter by amending the written statement she clarified that the sale deed was executed in favour of certain persons including the plaintiff.
17. The defendant Savitri when she appeared as DW-1 in the Court in her examination-in-chief itself she has stated that the will dated 23.3.1977 (Ex. D/1) was executed by her father in her presence and this is also so admitted by her further in her cross examination, para 2. If this important piece of evidence going to the root of the matter and which is the turning point of the case is tested on the touchstone and anvil of para 2 of her written statement where she has admitted that her step brothers and sisters got the sale deeds executed in favour of certain persons and she also put her signatures on them including the document executed in favour of plaintiff, according to me, these two types of situation cannot co-exist at one point of time. If she was aware in respect to the execution of the will dated 23.3.1977, Ex. D/1 executed by her father Babulal in favour of her son Meghraj, why she executed certain sale deeds in 10 S.A. No. 395/1997 favour of plaintiff-appellant. According to me, very cleverly she is trying to hide the reality for the simple reason that she is one of the vendor of the sale deed executed in favour of plaintiff and cleverly it is pleaded by her that on being asked by her step brothers and sisters she put her signatures on certain documents including the document in favour of plaintiff. Hence, it raises a heavy doubt that the will is genuine and because the doubt in respect of genuineness has been pleaded specifically by plaintiff and further she has specifically pleaded that will dated 23.3.1977 is a concocted document, all the suspicion has to be removed by the defendants who are propounder of the will.
18. The will is doubtful and cannot be said to be a genuine for some more reasons. On bare perusal of the written-statement of defendant Savitri as well as of defendant no.2 Meghraj, a specific date of execution of will has not been stated by them and only this much has been pleaded that in the year 1977 the will was executed. Similarly specific date of death of Babulal has also not been mentioned and only the year 1978 has been pleaded. According to me, if the defendant Savitri was having 11 S.A. No. 395/1997 document of will in her power and possession, certainly she should have pleaded the exact date of its execution. Having not pleaded so, it raises another suspicious circumstance to hold that will, Ex. D/1 is a concocted document. The other suspicious circumstance to hold that the will is not genuine is that although it is stated that Babulal had died in the year 1978 (it has come in the evidence of Motilal PW-3 that he had died on 6.2.1978) why it was not implemented and disclosed by filing necessary applications etc. in the office of local authorities. Though merely on this ground it cannot be said that the will is not genuine or the same is suspicious, but, looking to the overall facts and circumstances of the case since defendant Savitri is one of the vendor, it raises a doubt about authenticity of the will because had it been executed on 23.3.1977 and Babulal died on 6.2.1978 certainly, in pursuance to the will some action would have been initiated by the defendants. But, disclosure of the will for the first time was made only in the written-statement which was filed on 14.11.1980. There is no pleading of defendants nor there is any evidence that why after the death of Babulal this document of will was hidden and was not disclosed. Thus, on the basis of 12 S.A. No. 395/1997 preponderance and probability in the peculiar facts and circumstances of the case, it can be inferred that in order to get rid off the sale deed executed by defendant Savitri Bai along with other vendors, a false and concocted case of will has been set up by her in the written-statement. In these facts and circumstances, it can be inferred that the will was not executed by Babulal in favour of Meghraj who is the son of defendant no.1 Savitri Bai and the same is not a genuine document.
19. The substantial question of law no.2 is thus answered in favour of plaintiff-appellant and against the respondent- defendants.
Regarding Substantial Question of Law No.1
20. I have already held herein above that the will is suspicious and is not a genuine. There is no dispute that after the death of Babulal,defendant no.1 Savitri as well as her step mother, step brothers and sisters sold the suit property to plaintiff vide registered sale deed Ex. P/1 dated 18.1.1979, therefore, I am of the view that the plaintiff acquired title by virtue of registered sale deed dated 18.1.1979 and the learned two Courts below erred in substantial error of law in holding that plaintiff did not derive 13 S.A. No. 395/1997 title by virtue of said sale deed. The substantial question of law no.1 is thus answered in favour of appellant and against the respondents.
21. Resultantly, this appeal succeeds and is hereby allowed with costs throughout. The judgment and decree passed by the two Courts below is hereby set aside and the suit of plaintiff is hereby decreed in following terms:-
(i) It is hereby declared that plaintiff-appellant is the owner of the suit property by virtue of sale deed dated 18.1.1979;
(ii) the will Ex. D/1 dated 23.3.1977 is hereby declared as null and void;and
(iii) the plaintiff is entitled for possession of the suit property and a decree of possession be also passed.
Since no evidence has been adduced by the plaintiff in respect of mesne profits, the same is not hereby decreed. The appellant-plaintiff is entitled for the costs of this appeal. Counsel fee Rs.3000/-, if pre-certified.
(A.K. SHRIVASTAVA) Judge rao 14 S.A. No. 395/1997 S.A. No. 395/1997 28.07.2011 Shri Dinesh Upadhyay, Advocate for the appellant. Shri Jagtendra Prasad, Advocate for the respondents no. 1 and 2.
Shri Anoop Sanghi, Advocate for respondents no.4 to
7. Arguments heard.
Judgment dictated, signed and dated separately.
(A.K. SHRIVASTAVA) Judge rao