Allahabad High Court
Dhirendra Pratap vs Smt. Dharmawati And Another on 9 December, 2020
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Court No. - 10 Case :- SECOND APPEAL No. - 321 of 2017 Appellant :- Dhirendra Pratap Respondent :- Smt. Dharmawati And Another Counsel for Appellant :- Ajay Shankar,Triveni Shanker Counsel for Respondent :- Om Prakash Mishra,Nisheeth Yadav,Pankaj Mishra,Sanjai Singh,Shrinath,Yadvendra Pratap Singh Hon'ble Rohit Ranjan Agarwal,J.
1. This is plaintiff's second appeal filed under Section 100 of the Code of Civil Procedure against the judgment dated 17.01.2017 passed by the Additional District Judge, Court No. 15, Allahabad in Civil Appeal No. 214 of 2013 and judgment dated 11.09.2013 passed by the Civil Judge (Senior Division), Court No. 6, Allahabad in Original Suit No. 561 of 2000 decreeing the suit against the plaintiff appellant.
2. This appeal was admitted on 08.03.2017 on the following substantial questions of law;
"1. Whether the findings of both the courts below are perverse or not as they have misread the evidence on record and also the sale deed which provides transfer of four rooms only in favour of defendant no. 1 while the courts below have declared her owner of the entire property?
2. Whether the courts below were justified in ignoring the will dated 4.10.1999in favour of the plaintiff and Avadh Narain Tiwari on the false allegation of defendant no. 1 who was neither beneficiary nor was relative or successor of testator Laxmi Devi."
3. Factual matrix in brief are that plaintiff appellant filed Suit No. 561 of 2000 against the defendants for permanent prohibitory injunction restraining them from dispossessing him from house No. 295 (Old No. 16/89), Shobatiabagh, Allahabad. By way of amendment relief for cancellation of sale-deed dated 24.12.1999 executed by defendant no. 2 Avadh Narain Tiwari in favour of defendant no. 1 Smt. Dharmawati Devi was also claimed.
4. As per the plaint averment one Smt. Laxmi Devi wife of Avadh Narain Tiwari (defendant no. 2) was the owner in possession of the house in dispute. Defendant no. 2 and Laxmi Devi had no issues. Plaintiff was tenant of three rooms (Angan, Verandah and Bathroom) in the house in dispute at monthly rent of Rs. 300/-. Plaintiff is a doctor and was in service of the State in Provincial Medical Services cadre. As Laxmi Devi and defendant no. 2 did not have any issue, they treated him like his son and plaintiff also incurred expenses in their treatment. It was on 14.02.1991 that Laxmi Devi had executed a registered Will for the house in dispute in favour of sons of plaintiff namely Krishna Nand and Rajesh Kumar as well as her husband Avadh Narain Tiwari. However, subsequently Laxmi Devi on 04.10.1999 executed an unregistered Will in favour of her husband Avadh Narain Tiwari and the plaintiff. In the said Will Avadh Narain Tiwari was given only limited right to live, but could not pass on the ownership. Laxmi Devi died on 31.10.1999 and on the basis of unregistered Will dated 04.10.1999 plaintiff and Avadh Narain Tiwari became the owner of the house in question, but defendant no. 1 on 24.12.1999 got a sale-deed executed in her favour by defendant no. 2.
5. The aforesaid suit was contested by defendant no. 1 Smt. Dharmawati Devi, who filed her written statement denying the plaint allegation and admitting the ownership of Laxmi Devi. In the additional pleas it has been specifically stated that earlier registered Will executed on 14.02.1991 was by playing fraud upon Laxmi Devi who after coming to know of the fact got the same cancelled on 29.07.1991. It was further averred that Laxmi Devi has not executed any unregistered Will on 04.10.1999 in favour of plaintiff or in favour of defendant no. 2. After the death of Laxmi Devi, Avadh Narain Tiwari (defendant no. 2) became the exclusive owner being sole legal heir and he executed the registered sale-deed in favour of defendant no. 1 on 24.12.1999.
6. It was further averred that plaintiff had tried to get the name of his sons mutated in revenue records before the Nagar Nigam Allahabad on the basis of registered Will dated 14.02.1991 which was objected by defendant no. 1 and Nagar Nigam on 26.06.2001 rejected the mutation application filed on behalf of plaintiff. Further the status of plaintiff was only of a tenant at monthly rent of Rs. 300/-. On the basis of the pleadings of the parties the trial court framed the following issues;
"1. क्या वादी एवं स्व0 अवध नारायण तिवारी वसीयतनामा दिनाँक 4.10.99 के आधार पर विवादित मकान के मालिक व काबिज दखील है?
2. क्या स्व0 अवध नारायण तिवारी के प्रतिवादी सं0 1 के पक्ष में विक्रय पत्र दिनाँक 24.12.99 निष्पादित करने का अधिकार था?
3. क्या वाद का मूल्यांकन कम दिया गया है एवं अदा किया गया न्यायशुल्क अपर्याप्त है?
4. क्या वादी किसी अनुतोष को पाने का अधिकारी है? यदि हाँ तो कौन सा?
5. क्या बैनामा दिनांकित 24.12.99 द्वारा प्रतिवादी संख्या 2 बहक प्रतिवादी संख्या 1 शून्य अवैध घोषित किये जाने योग्य है?"
7. Both the plaintiff and defendant filed number of documentary evidence as well as oral testimony of witnesses were also recorded from both the sides. The trial court vide its judgment dated 11.09.2013 partly decreed the suit of plaintiff appellant as far as the relief of prohibitory permanent injunction was concerned and held that plaintiff can only be evicted from the tenanted portion of the house only in accordance with law, while the suit for cancellation of sale-deed was dismissed.
8. Aggrieved by the said judgment and decree Civil Appeal No. 214 of 2013 was filed by the plaintiff appellant, while Civil Appeal No. 215 of 2013 was filed by defendant no. 1. Both the appeals were consolidated and heard together and the lower appellate court vide judgment dated 17.01.2017 dismissed both the appeals.
9. Sri Triveni Shankar, learned counsel appearing for the plaintiff appellant, submitted that defendant no. 2 Avadh Narain Tiwari neither filed written statement denying the plaint allegation nor appeared in witness box challenging the Will dated 04.10.1999, nor the courts below framed any issue or point of determination that after death of Laxmi Devi her husband acquired right by way of succession and had right of sale. Both the courts below exceeded in their jurisdiction while holding that defendant no. 2 by way of succession had right to execute sale-deed. It was next contended that defendant no. 1 being purchaser of the property in dispute was neither beneficiary nor legal heir, as such, had no right to challenge the genuineness of Will dated 04.10.1999. Reliance has been placed upon decision of this Court in case of Gulab Vs. Om Prakash, 2014 (122) RD 503.
10. It was next contended that in the first registered Will dated 14.02.1991 and second unregistered Will dated 04.10.1999 Avadh Narain Tiwari was given limited right for using the property during his life time and was not given any right to transfer the same, though the earlier Will of 1991 was cancelled subsequently. As far as signature of Laxmi Devi is concerned, it was contended that she had been putting her signature either as Laxmi Devi or Laxmi Debi which is evident from the perusal of both the Wills of the year 1991 and 1999. It was next contended that PW-2 Vijay Prakash Singh and PW-3 Triloki Singh had proved the attestation of Will in their examination-in-chief through affidavit, while the trial court had wrongly disbelieved the statement in his affidavit merely on the basis of a vague question put to PW-2 in cross examination. According to him PW-3 Triloki Singh being one of the attesting witness proved the Will dated 04.10.1999 but the court below committed error in not considering the same.
11. As far as Will dated 04.10.1999 was concerned it was never challenged by legal heir of Laxmi Devi, defendant no. 2 Avadh Narain Tiwari. It was next contended that DW-1 Prabhakar Tripathi in his statement had admitted that there are certain mistakes in sale-deed but no rectification was moved by the parties for correcting the said mistakes and courts below had wrongly assumed that the sale-deed was for entire house.
12. Sri Triveni Shanker, learned counsel for the plaintiff appellant, invited attention of the Court to the sale-deed wherein in the description of the property, four rooms were mentioned, while in the property in dispute there are more than four rooms and construction had been made on the first floor. Reliance has been placed upon decision of Apex Court in case of Joseph John Peter Sandy Vs. Veronica Thomas Rajkumar & Another, 2013 (1) RJ 659, State of Karnataka & Another Vs. K.K. Mohandas & Ors. AIR 2007 SC 2917. It was then contended that from the oral testimony of DW-2 and DW-3 it is clear that neither actual amount of payment nor mode of payment of consideration was proved by the defendant no. 1 in respect of sale-deed, as such, the transaction not being genuine the courts below should not have accepted the sale-deed. Reliance has been placed upon decision of this Court in case of Bhartu Vs. Nawal @ Chhotai 2012 (115) RD 761 and decision of Apex Court in case of Kaliaperumal Vs. Raja Gopal 2010 All. C.J. 397.
13. Sri Triveni Shanker, learned counsel, next tried to impress upon by placing certain correspondence made between plaintiff appellant and Laxmi Devi as well as Avadh Narain Tiwari so as to prove the fact that plaintiff appellant was one of the member of the family of Laxmi Devi and Avadh Narain Tiwari, and was constantly in touch with them, thus, no suspicion arises for execution of unregistered Will dated 04.10.1999. On the issue of probate not being granted to the unregistered Will dated 04.10.1999 it was submitted that there is no requirement in the State of U.P. for probate of a Will. Reliance has been placed upon decision in case of Clarence Pais Vs. Union of India 2001 (43) ALR 249 (SC), Ramjas (Dead) Through L.Rs. Vs. Smt. Sunder Devi (Dead) & Another, 2014 (125) RD 376, Ashok Kumar Dhawan (Now Dead Through L.Rs.) & Ors. Vs. Smt. Manju Mehrotra & Another 2018 (9)ADJ 681.
14. Per contra, Sri Shri Nath Dwivedi, learned counsel appearing for the defendant no. 1, submitted that defendant no. 2 Avadh Narain Tiwari was an ambulance driver in Indian Railways, he had purchased a residential plot measuring 220 Square Yards in Mohalla Shobatiabagh, Allahabad on 20.07.1966 and after getting the house constructed started living with his wife Laxmi Devi. Plaintiff appellant Dhirendra Pratap was a tenant at a rent of Rs. 300/- per month. The earlier registered Will dated 14.12.1991 was executed by playing fraud upon Laxmi Devi who after coming to know of the said fact, got it cancelled on 29.07.1991. She died on 31.10.1999 issueless leaving behind sole legal heir Avadh Narain Tiwari, her husband, and the property devolved upon him.
15. It was defendant no. 2 Avadh Narain Tiwari who had executed a registered sale-deed in favour of defendant no. 1 and in the description of the property house No. 16/89 (Old) and 295 (New) number has been mentioned situated in Mohalla Shobatiabagh. The total area is mentioned as 220 Square Yards i.e. 184.80 Square Meter in which four rooms are constructed. The description of the property also takes care of the boundaries wherein a gali is situated on the east, rasta on west, on the northern side house of Satya Prakash Gupta while on the western side house of Kiran Kumar Srivastava is situated. It is next contended that it was by mistake that only four rooms were shown and defendant no. 1 had paid the balance stamp duty in a case initiated by the State Government. The sale-deed was not in respect of four rooms but for the entire house.
16. It was next contended that on the basis of registered Will dated 14.02.1991 the plaintiff appellant had tried to get the name recorded in the revenue records before Nagar Nigam Allahabad and when defendant came to know of the said fact objection was filed and mutation application of the plaintiff appellant was rejected. It was then contended that initially the suit was filed for permanent prohibitory injunction but later on the same was amended seeking relief for getting the sale-deed dated 14.12.1999, declared null and void. As the claim of the plaintiff appellant was based upon unregistered Will dated 14.10.1999 the burden of proving the same was upon him. Reliance has been placed upon decision of Apex Court in case of Savithri & Ors. Vs. Karthyayani Amma & Ors. 2007 (11) SCC 621. Relevant paragraph nos. 14, 15 and 17 are extracted here as under;
"14. We would proceed on the basis that at the time of execution of the said Will, the testator was unwell. The test, however, is as to whether he possessed mental capacity to understand the contents of the Will and whether the same was free and/or voluntary.
15. Submission of the learned counsel that if both Krishnan Nair and Sankaran Nair were to bequeath their entire right, title and interest in the properties in favour of the respondents herein, by way of family arrangement or otherwise, no deed of partition was required to be executed, cannot be accepted as thereby they would have lost their interest in the property during their life time. They evidently intended to have life interest in the property, bequeathing the same in favour of the respondents. It must also be borne in mind that the parties are governed by Marumakkattayam School of Hindu Law. The sisters in the family have a role to play. The fact that the testator was totally dependent on his nephew and nieces is beyond any dispute. He lost his employment in the year 1959. Apart from the properties which were subject-matter of the Will, he had no other independent source of income. Being totally dependent on the respondents having been suffering from cancer, he was bound to place implicit faith and confidence only upon those who had been looking after him. The Will was admittedly registered. The testator lived for seven years after execution of the Will. He could change his mind; he did not. The very fact that he did not take any step for cancellation of the Will is itself a factor which the Court may take into consideration for the purpose of upholding the same. The question as to whether the Register was brought to the house of the propounder or he had gone to the Registrars office is not a matter which requires serious consideration. But we may notice that the witness examined on behalf of the respondents, Raveendran (DW-2), categorically stated that he had gone to the Registrars office to get the same registered. Execution of the will might have taken place at the house of Krishnan Nair, but according to DW- 2 he came to his office even after registration. Even the other Will was also scribed by him and he was an attesting witness therein also.
17. The legal requirements in terms of the said provisions are now well- settled. A Will like any other document is to be proved in terms of the provisions of the Indian Succession Act and the Indian Evidence Act. The onus of proving the Will is on the propounder. The testamentary capacity of the propounder must also be established. Execution of the Will by 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 exist 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."
17. Reliance has also been placed upon decision of the Apex Court in case of Gurdial Kaur & Ors. Vs. Kartar Kaur & Ors. 1998 (4) SCC 384, N. Kamalam (Dead) & Another Vs. Ayyasamy & Another 2001 (7) SCC 503. Relevant paragraph is extracted here as under;
"The latin expressions onus probandi and animo attestandi are the two basic features in the matter of civil courts exercise of testamentary jurisdiction: Whereas onus probandi lies in every case upon the party propounding a will, the expression animo attestandi means and implies animus to attest: to put it differently and in common parlance it means intent to attest. As regards the latter maxim, the attesting witness must subscribe with the intent that the subscription of the signature made stands by way of a complete attestation of the will and the evidence is admissible to show whether such was the intention or not."
18. Sri Dwivedi next contended that the alleged execution of unregistered Will is shrouded in suspicion and it is the duty on part of the propounder of the Will to remove the suspicion by leading satisfactory evidence and it has to be proved under the provisions of Section 63 of Indian Succession Act read with Section 68 of the Indian Evidence Act by producing at least one of the attesting witness in the witness box to prove the Will and witness should have put his signatures for the purpose of attesting that he has seen the executants or testator signing the Will, and attesting witnesses be present during execution of Will. Further, PW-2 and PW-3 in their examination-in-chief had stated that Laxmi Devi executed the Will, but in the cross examination they failed to prove the execution of Will and both the courts below had recorded a categorical finding to that effect. While PW-1 in his oral testimony had stated that at the time of execution of Will he was in Lucknow.
19. It was then contended that Avadh Narain Tiwari being sole legal heir of Laxmi Devi having succeeded to the property became the absolute owner and executed the sale-deed on 24.12.1999. Lastly it was contended that in the present appeal no substantial question of law arises as the word ''substantial' as qualifying ''question of law' means - of having substance, essential, real, of sound worth, important or considerable. While, in the present case, both the courts below had recorded categorical finding of fact against the plaintiff appellant and no substantial question of law arises. Reliance has been placed upon decision of Apex Court in case of Santosh Hazari Vs. Purshottam Tiwari (Deceased) by L.Rs. 2001 (3) SCC 179.
20. I have heard learned counsel for the parties and perused the material on record.
21. As it is admitted to both the parties that the owner in possession of the property in dispute was Laxmi Devi wife of Avadh Narain Tiwari, who was an ambulance driver in Indian Railways. After his retirement from the service both the couple were residing in the said property. It is also admitted to both the parties that plaintiff Dhirendra Pratap is tenant at monthly rent of Rs. 300/-. The dispute arose after death of Laxmi Devi, when on one hand defendant no. 1 claimed to be the owner of the property on basis of sale-deed executed on 24.10.1999 by defendant no. 2 Avadh Narain Tiwari in her favour and plaintiff appellant claiming himself to have succeeded to the property in dispute through an unregistered Will dated 04.10.1999.
22. It is also not in dispute that earlier on 14.02.1991 a registered Will was executed by Laxmi Devi in favour of her husband Avadh Narain Tiwari and two sons of plaintiff appellant, which was subsequently cancelled by Laxmi Devi on 29.07.1991. It is now on the basis of an unregistered Will which is alleged to have been executed by Laxmi Devi in favour of her husband Avadh Narain Tiwari with limited interest and plaintiff, that plaintiff is claiming ownership.
23. This Court while admitting the appeal on 08.03.2017 had framed two substantial questions of law, firstly whether both the courts below misread the evidence on record, as well as the sale deed which provides transfer of four rooms only in favour of defendant no. 1, though the defendant no. 1 has been declared owner of the entire property.
24. Issue no. 1 and 2 framed by the trial court were interlinked and a finding has been recorded that plaintiff appellant himself in his oral testimony had stated that he was at Lucknow when the alleged unregistered Will was executed on 04.10.1999. While PW-2 Vijay Prakash Singh in his cross examination had stated that plaintiff appellant was present alongwith an Advocate and it was he who had told him that Amma Ji (Laxmi Devi) wanted to execute an agreement and he had been witness to the said document though had not seen the document till date. PW-3 Triloki Singh in his cross examination had stated that plaintiff appellant was not present at the time of execution of Will. He had further stated that he had not seen the Will till date and Dina Nath, the Scribe, had not got his signature on the Will.
25. The trial court had considered all the documentary evidences filed by the plaintiff appellant as well as oral testimony while recording finding that plaintiff appellant could not prove the unregistered Will dated 04.10.1999 and was only a tenant in the property in dispute. Apex Court in the case of N. Kamalam (Dead) & Another (Supra) as well as in Gurdial Kaur & Ors. (Supra) had categorically held that the attestation of the Will should be proved and the onus lies upon party propounding the Will. In Savithri & Ors. (Supra) the view taken by the Apex Court is that where suspicious circumstances exists the onus is upon propounder to explain to the satisfaction of the Court before it can be accepted as genuine.
26. In the present case Laxmi Devi had earlier, in the year 1991, had got registered Will dated 14.02.1991 cancelled and after eight years executing an unregistered Will only giving limited right to her husband Avadh Narain Tiwari and bequeathing the entire property in favour of plaintiff appellant creates doubt, as both Laxmi Devi and Avadh Narain Tiwari had no issues, and if the plaintiff appellant was going to be the sole beneficiary it could have been after the lifetime of Avadh Narain Tiwari. The argument of learned counsel for the plaintiff appellant that both the Wills, i.e. of the year 1991 and 1999, defendant no. 2 Avadh Narain Tiwari was given limited interest can also be viewed to be an argument against him, had Laxmi Devi wanted to give only lifetime interest to Avadh Narain Tiwari, then she would not have got the Will dated 14.02.1991 cancelled.
27. Both the courts below rightly recorded the finding against the plaintiff appellant and found that he failed to establish the genuineness of the Will. In cross examination of both PW-2 and PW-3 there are contradictions, which creates doubt and the Will had been rightly disbelieved. As far as description of the property in sale-deed dated 24.12.1999 is concerned, from reading of the same it is clear that entire house No. 16/89 (Old) and 295 (New) measuring 220 Square Yards was sold in which description of four rooms was given. Thus the argument of the plaintiff appellant to the extent that only four rooms was sold while there are ten rooms in the house and courts below had misread not only the documents as well as sale-deed and had wrongly decreed the suit against the plaintiff appellant, falls flat, as mere non-disclosure of all the rooms within the said house only attracts evasion of stamp duty, but it cannot be said that entire house was not transferred by sale-deed dated 24.12.1999, as it is clearly evident that entire house was sold and not only four rooms. The first substantial question of law thus is decided against the plaintiff appellant.
28. Now coming to the second substantial question of law, as to whether the courts below were justified in ignoring the Will dated 04.10.1999 alleged to have been executed in favour of plaintiff appellant and defendant no. 2 on the false allegation of defendant no. 1, who was neither beneficiary nor was relative or successor of testator Laxmi Devi.
29. As it has been discussed earlier that plaintiff appellant had filed suit for permanent prohibitory injunction on the basis of unregistered Will dated 04.10.1999, subsequently by amendment adding relief for cancellation of sale-deed executed in favour of defendant no. 1. The onus for proving the Will was upon plaintiff appellant according to Sections 101 and 102 of the Evidence Act. Defendant no. 2 Avadh Narain Tiwari was sole legal heir of late Laxmi Devi, and after her death he succeeded to the property left by her. It was the plaintiff appellant who had claimed that Laxmi Devi had given limited interest in the property to Avadh Narain Tiwari and after him he was to succeed. Both the courts below found that the plaintiff appellant failed to prove the Will executed in his favour as both the attesting witnesses in their cross examination gave contrary statements which resulted in the finding recorded by the courts below that the genuineness of the Will was not proved.
30. Moreover plaintiff appellant failed to prove the sale-deed executed in favour of defendant no. 1 by Avadh Narain Tiwari to be under suspicious circumstances and in his oral testimony had accepted the fact that apart from being a person of old age defendant no. 2 was not insane.
31. Reliance placed by the plaintiff appellant upon decision in case of Joseph John Peter Sandy (Supra) and K.K. Mohandas & Ors. (Supra) are distinguishable in the facts of the present case. Argument raised by the plaintiff appellant is accepted to the extent that there was no requirement of probate of Will in the State of U.P. as the legal position has already been settled by this Court in number of judgments. However, the moot question which arises in the present case is that it was the burden upon the plaintiff appellant to prove the Will beyond doubt which he had failed to discharge as the statement of attesting witnesses are contrary and no occasion arose as to why late Laxmi Devi would exclude her husband Avadh Narain Tiwari from absolute ownership of the property, well knowing that except him there was no other person to succeed.
32. In the plaint it has been specifically pleaded that earlier in the year 1991 a registered Will was executed by Laxmi Devi in favour of Avadh Narain Tiwari (with limited interest) and sons of plaintiff appellant, but no disclosure had been made as to the cancellation of the said Will on 29.07.1991 by Laxmi Devi. While execution of unregistered Will dated 04.10.1999 has been referred to have been executed in favour of plaintiff appellant and Avadh Narain Tiwari. Thus, the argument that Laxmi Devi out of love and affection had executed an unregistered Will in favour of plaintiff appellant does not hold ground. Had she wanted to bequeath her property in favour of plaintiff appellant or his sons, then she would not have cancelled the earlier Will of the year 1991 and no explanation has been forwarded by them. As it has come in the oral testimony that Laxmi Devi was not an illiterate person and earlier she had executed a registered Will, thus now executing unregistered Will without disclosing of earlier Will does not hold ground. Thus, the plaintiff appellant has miserably failed to prove the unregistered Will dated 04.10.1999 which is shrouded in suspicion and it cannot be said that the courts below had wrongly recorded any finding against the plaintiff appellant. Rather the plaintiff appellant has failed to establish the execution of Will in his favour, as well as any suspicious circumstances leading to execution of sale-deed by defendant no. 2 in favour of defendant no. 1.
33. In view of the above, the findings recorded by courts below need no interference and the substantial question of law, as framed, is decided against the plaintiff appellant.
34. Having heard learned counsel for the parties and considering the material on record I find that both the courts below had recorded finding of fact which needs no interference by this Court in this appeal.
35. Second appeal devoid of merit and is hereby dismissed.
Order Date :- 09.12.2020 Shekhar