Rajasthan High Court - Jaipur
Smt.Kamla vs Manohar Lal on 18 August, 2022
Author: Sudesh Bansal
Bench: Sudesh Bansal
(1 of 48) [CFA-115/1989]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil First Appeal No. 115/1989
Smt.kamla Devi W/o Late Shri Chand Ratan Acharya, R/o House
No.3/15, New Colony, Jaipur
----Appellant- Defendant No.1
Versus
1. Manoharlal (deceased) through legal representatives:-
1/1. Smt. Vimla Devi W/o Late Shri Manoharlal
1/2. Shri Rajbahadur S/o Late Shri Manoharlal
1/3. Shri Deepak S/o Late Shri Manoharlal
1/4. Usha D/o Late Shri Manoharlal
All R/o House No.1171, Sakri Gali, Nataniyon ka Rasta, Chatura
Rasta, Jaipur.
.........Respondent-Plaintiff
2. Smt. Pushpa Devi W/o Shri Laxmi Chand Bajaj, R/o House No.1177, Sakri Gali, Nata Nataniyon ka Rasta, Chatura Rasta, Jaipur
----Respondent-Defendant No.2 For Appellant(s) : Mr. R.K. Agarwal Sr. Adv. assisted by Mr. Mamoon Khalid For Respondent(s) : Mr. Vimal Choudhary with Mr. Yogesh Tailor Mr. Deepak Sharma for Mr. Rajendra Prasad, Sr. Adv.
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
JUDGMENT RESERVED ON:- 21/07/2022
JUDGMENT PRONOUNCED ON:- August 18th ,2022
REPORTABLE:
1. Appellant-Defendant No.1- Smt. Kamla Devi filed this first appeal under Section 96 of Civil Procedure Code feeling aggrieved by the judgment and decree dated 08.09.1989 passed in civil suit (Downloaded on 18/08/2022 at 09:25:15 PM) (2 of 48) [CFA-115/1989] No.36/1984 by the Court of Additional District Judge No.1, Jaipur City, Jaipur whereby and whereunder civil suit for declaration, possession and permanent injunction filed by the respondent No.1-plaintiff in relation to the movable and immovable properties of late Smt. Sahodara Devi has been decreed in his favour and against the appellant-defendant No.1 in following manner:
"द व बहक व द ख ल फ पख व द गण मय र ख क खकय ज ह। यह घ ख खकय ज ह खक व द म क सह दर द!व क उतर ख$क र ह न! स! द व! क! पर न०' 3 म) दज अरल समपख म) स! सब-इस' प!क/र इर ' ज, क व ल क , खजस खहसस! पर व खस खवक कब1 ह क व स खवक कब1 व पख व द न० ' 2 क खकर य!श3द समप खत क स 'क!ख क कब1 व स4खर एकज . 6 म) दज रल समप खत क कब1 पख व द न० ' 1 व सब-
' प!क/र इर
इस ' ज, क व ल स! प प करन! क अख$क र ह।
व द नय य श3लक अद करन! पर पख व द न० ' 2 स! खकर य!श3द
समपख क 85/- रपय! म हव र खक दर खदन 'क 24.07.80 स!
खकर य प प करन! क अख$क र ह। "
2. Heard learned counsel for both parties at length and perused the impugned judgment as also scanned the material on record.
3. The principal point emerges for consideration in the present case is that who would succeed the suit properties left by Smt. Sahodara Devi? From the record, it is indisputed that Smt. Sahodar Devi died issue-less on 04.03.1977 and her husband, father and mother pre-deceased her. Appellant-Defendant No.1- Smt. Kamla Devi who happens to be daughter of her sister, has succeeded in legal proceedings initiated by her under Section 192 of the Indian Succession Act, 1925 on the basis of 'Will' of Smt. Sahodara Devi dated 09.10.1976. Learned District Judge, Jaipur City, in such summary proceedings under Section 192, after recording evidence of parties and after according opportunity of (Downloaded on 18/08/2022 at 09:25:15 PM) (3 of 48) [CFA-115/1989] hearing to the respondent No.1-Plaintiff, passed order dated 03.05.1980 and has accepted the 'Will' of Smt. Sahodar Devi as genuine and valid, and further inquriy has been concluded in favour of appellant and directions have been issued to deliver the possession of her properties to applicant Smt. Kamla Devi (appellant herein) until order is impeached by the competent court of law in regular suit in accordance with law. But thereafter respondent No.1-Plaintiff instituted the present civil suit on 23.07.1980, challenging the 'Will' of Smt. Sahodar Devi as forged and fabricated as also alleging the order dated 03.05.1980 and prayed to quash the 'Will' and the order dated 03.05.1980.
Respondent No.1 is claiming his right, title and interest in the suit property of Smt. Sahodara Devi and has prayed for possession of suit property, claiming himself to be natural successor of late Smt. Sahodara Devi. Respondent No.1-Plaintiff happened to be son of sister of husband of late Smt. Sahodara Devi. The respondent
-defendant No.2 Smt. Pushpa Devi happens to be tenant of Smt. Sahodara Devi in a portion of suit property and agreeable to pay rent to the person, declared to be owner and successor of the suit property of Smt. Sahodara Devi as per direction of the Hon'ble Court. Thus, appellant is alleging herself to be successor on the basis of testamentary document of 'Will' of Smt. Sahodara Devi.
Per contra, respondent No.1 is claiming his right, title and interest in the suit property of Smt. Sahodara Devi by non-testamentary succession and has challenged the 'Will' of Sahodara Devi executed in favour of appellant and has prayed for possession of the suit property.(Downloaded on 18/08/2022 at 09:25:15 PM)
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4. At the outset and before considering facts and evidence of both parties in detail and to discuss issues involved in the present matter, it may be clarified that the dispute between parties is in relation to the suit property of Smt. Sahodara devi, movable and immovable, as described in para No.3 of the plaint situated at Haveli Municipal No.1177 in Sakari Gali of Nataniyon Ka Rasta, Chokri Modikhana, Jaipur for which Smt. Sahodara Devi made her 'Will' on 09.10.1976 in favour of appellant Smt. Kamla Devi but there is no dispute about the adjoining portion to the suit property, which is also part of the same haveli and was belonging to Smt. Sahodara Devi and for which Smt. Sahodara Devi had already executed a gift deed dated 03.10.1975 in favour of appellant-Kamla Devi. It is not disputed between parties that appellant-defendant Kamla Devi is seized and in possession of that northern side of portion of the haveli, which was also in the ownership of Smt. Sahodara Devi and was gifted by her to Smt. Kamla Devi. The respondent No.1-Plaintiff has not challenged the gift deed of Smt. Sahodara Devi nor made any claim of his right, title and interest in that portion of haveli which was also belonging to Smt. Sahodara Devi.
5. Both parties to this first appeal shall be referred hereinafter as per their status before the trial court and in the same manner as they were called before the trial court. Relevant facts of the present case, as culled out from the record, may be recapitulated as under:-
Pleadings of plaintiff.
5.1 Plaintiff Shri Manoharlal instituted a civil suit in the nature of declaration, possession and permanent injunction against the (Downloaded on 18/08/2022 at 09:25:15 PM) (5 of 48) [CFA-115/1989] defendant No.1 Smt. Kamla Devi and defendant No.2 Smt. Pushpa Devi.
5.2. The civil suit was instituted on 23.07.1980 challenging the 'Will' dated 09.10.1976 made by Smt. Sahodara Devi in favour of defendant No.1-Smnt. Kamla Devi alleging it as forged and fabricated and challenging the judgment dated 03.05.1980 passed by the court of District Judge, Jaipur City under Section 192 of Indian Succession Act,1925. It was stated that since defendant No.1-Kamlad Devi would not inherit the suit property of Smt. Sahodara Devi as per law of natural succession, she prepared her forged 'Will' to grab her properties. This was not disputed that prior to filing of the present suit, defendant No.1-Smt. Kamla Devi had put her claim for possession of property of Smt. Sahodara Devi, on the basis of her 'Will' dated 09.10.1976 before District Judge, Jaipur under Section 192 of the Indian Succession Act, 1925, which culminated in her favour, vide order dated 03.05.1980 and this order dated 03.05.1980 was also challenged.
In the suit, it was prayed that declaration be made that plaintiff is the sole successor of late Sahodara Devi and entitled for possession of the suit property of Smt. Sahodara Devi including movable and immovable described in para No.3 of the plaint and further it be declared that the 'Will' of Smt. Sahodara Devi dated 09.10.1976 is forged as also the judgment dated 03.05.1980 is void and ineffective and as such the 'Will' and judgment be quashed. It was also prayed that defendant No.1 be restrained not to receive the possession of suit property pursuant to the judgment dated 03.05.1980 passed by the District Judge, Jaipur City and the defendant No.2, be also restrained not to pay the (Downloaded on 18/08/2022 at 09:25:15 PM) (6 of 48) [CFA-115/1989] rent and possession of her tenanted portion to the defendant No.1.
5.3. As per pleadings of plaint, the plaintiff claimed himself to be the sole successor of late Smt. Sahodara Devi on two grounds;
a) Plaintiff is son of sister of Gattulal. Gattulal was elder brother of Motilal and Motilal was deceased husband of late Smt. Sahodara Devi. Plaintiff claimed that since Smt. Sahodara Devi died issue-less and intestate, therefore as per this chain of succession, plaintiff is the natural successor of late Smt. Sahodara Devi, being son of her deceased husband's sister.
b) Another ground is that plaintiff claimed that he was adopted by Gattulal and Gattulal made 'Will' dated 09.12.1962 in his favour thus, when Smt. Sahodra Devi died intestate, her properties devolves upon Gattulal brother of her deceased husband Motilal and therefore, after death of Gattulal, by virtue of 'Will' of Gattulal, plaintiff inherits the suit property of Smt. Sahodara Devi.
5.4. It was also stated in the plaint that after death of Smt. Sahodara Devi on 04.03.1977, her tenant defendant no.2 lodged a report in Kotawali, Police Station that Smt. Sahodara Devi died issue-less and she has no legal heirs. On such report, the police seized all the goods and articles of Smt. Sahodara Devi and locked the room where she was living. Thereafter, Gattulal moved an application to release the properties of Smt. Sahodaa Devi alleging that he is the surviving natural heirs of Smt. Sahodara Devi being brother of her deceased husband and thereupon, the Additional Collector, Jaipur passed order dated 17.11.1977 to the effect that Gattulal is the successor of Smt. Sahodara Devi and therefore, the properties left by Smt. Sahodara Devi be delivered to Gattulal. (Downloaded on 18/08/2022 at 09:25:15 PM)
(7 of 48) [CFA-115/1989] 5.5. It was further stated in the plaint, that when the defendant No.1 came to know about death of Smt. Sahodara Devi, firstly she put her claim through her son before the police claiming her right over the suit property of Smt. Sahodara Devi on the basis of her 'Will' but after having knowledge about the order dated 17.11.1977, passed by the Additional Collector, Jaipur in favour of Gattulal, She moved an application before the District Judge, Jaipur under Section 192 of the Indian Succession Act, 1925 and sought possession of properties left by Smt. Sahodara Devi. In such proceedings, the defendant No.1 claimed that Smt. Sahodara Devi has executed a 'Will' dated 09.10.1976 in her favour and has bequeathed her properties to her, therefore, she is entitled for possession of the suit property left by Smt. Sahodara Devi. It is pleaded in the plaint that in these legal proceedings, although Gattulal was not made party, however Gattulal submitted his objections on 10.12.1977 before the District Judge, Jaipur. Later on, Gattulal passed away on 14.09.1978 and after his death, his wife Sanja Devi pursued the objection but she also died on 06.11.1979 and thereafter plaintiff contested these legal proceedings, raising objection on that the 'Will' of Smt. Sahodara Devi is forged. It appears that although plaintiff was not allowed to add party in these proceedings, however was permitted to contest the legal proceedings and he was allowed for cross- examination of the defendant No.1 and both the witnesses of the 'Will' in question, appeared before the District Judge during the course of inquiry under Section 192 of the Indian Succession Act, 1925.
(Downloaded on 18/08/2022 at 09:25:15 PM)
(8 of 48) [CFA-115/1989] The District Jude passed judgment dated 03.05.1980 and thereby accepted the execution of the 'Will' of Smt. Sahodara Devi dated 09.10.1976 and directed to deliver her properties to defendant No.1-Smt. Kamla Devi.
5.6. The plaintiff, though has not mentioned in the plaint but in his written arguments submitted before this Court in the first appeal, has submitted that plaintiff assailed the judgment dated 03.05.1980, by way of filing S.B. Civil Revision Petition No.190/1980 titled Manohar Lal Vs. Smt. Kamla Devi before the High Court but the High Court dismissed the revision petition vide order dated 14.05.1980 with an observation that inquiry under Section 192 of the Indian Succession Act is only of summary nature and does not decide the rights of parties. If the petitioner alleges himself to be successor of late Smt. Sahodara Devi, the same can only be proved in the proper proceedings and he can succeed only if the 'Will' made by Smt. Sahodara Devi in favour of Smt. Kamla Devi is not proved. The plaintiff submits that thereafter, the inventories of goods and articles left by Smt. Sahodara Dvi was made by the police under the directions of the District Judge and the same have been delivered to the defendant No.1.
5.7. The plaintiff has pleaded that the 'Will' of Smt. Sahodara Devi dated 09.10.1976 in favour of defendant No.1 is a forged and fabricated document and has prayed that the 'Will' dated 09.10.1976 as also the judgment dated 03.05.1980 passed in the proceedings under Section 192 of Indian Succession Act, 1925 by the District Judge, Jaipur in favour of the defendant No.1 be quashed. Finally, it was prayed that plaintiff be declared as the (Downloaded on 18/08/2022 at 09:25:15 PM) (9 of 48) [CFA-115/1989] sole natural successor of the deceased Sahodara Devi and be held entitled to get all the suit property left by Smt. Sahodara Devi including the rent to be paid by the defendant No.2 for the portion of the suit property being tenant of Smt. Sahodara Devi. Consequential prayer for permanent injunction was also made.
6. Written statements of defendant No.1 6.1. The defendant No.1-Smt. Kamla Devi filed her written statement on 25.08.1980 denying the plaint allegations, about plaintiff's rights, title and interest over the suit property. It was contented that plaintiff is not adopted son of Gattulal and since plaintiff is alleging himself to be son of sister of Gattulal, therefore, his theory of adoption is wholly illegal, as brother cannot take his sister's son in adoption. The 'Will' dated 09.12.1962 said to be executed by Gattulal in favour of plaintiff was denied and it was contended that at that point of time Gattulal had no concerned with the properties of Smt. Sahodar Devi. It was contended that Gattulal Ji and Motilal Ji were not in good relations rather having litigation against each other and always lived separately.
6.2. In the written statement of defendant No.1, it was contended that Smt. Sahodara Devi became the sole owner of the houses even during lifetime of her husband Motilal Ji. The portion of haveli purchased by Motilal had been gifted by him to Smt. Sahodara Devi through gift deed dated 09.11.1949. Another portion of haveli was purchased by Smt. Sahodara Devi from Shri Kalyan S/o Nanu Lal Sonar through registered sale deed dated 21.09.1955 (correct dated 04.11.1955) and this purchased portion of haveli was given by Smt. Sahodara Devi to defendant No.1-Smt. Kamla (Downloaded on 18/08/2022 at 09:25:15 PM) (10 of 48) [CFA-115/1989] Devi through registered gift deed dated 03.10.1975. It was contended that after execution of gift deed dated 03.10.1975, Smt. Sahodara Devi remain continued to be owner of the remaining portion of haveli and for that portion, she executed 'Will' dated 09.10.1976 in favour of defendant No.1 and bequeathed her remaining properties it means the suit property to the defendant No.1-Smt. Kamla Devi. The 'Will' dated 09.10.1976 was executed by Smt. Sahodara out of her free will and volition and the 'Will' was attested by two attesting witnesses. 6.3. It was further contended that defendant No.2 and her husband Laxmi Chand Bajaj, who were tenant of Smt. Sahodara Devi in the portion of suit property, in order to implicate the suit property in dispute so as to be absolved from liability to pay rent, made a wrong report before the police and on her report, police seized suit properties and put his lock thereupon. It was contended that Additional Collector, Jaipur has no jurisdiction to decide the issue of Succession and the order dated 17.11.1977, wherein Gattulal being Jeth of Smt. Sahodara Devi was declared as her natural heirs and successor is without jurisdiction. 6.4. It was contended that keys of the suit property have been handed over to the defendant No.1, therefore the prayer for permanent injunction made in the plaint has become infructuous. Finally, it was prayed that the suit be dismissed. Written Statements of Defendant No.2.
7. Defendant No.2- Smt. Pushpa Devi who happened to be the tenant of Smt. Sahodara Devi in a portion of suit property, also submitted her separate written statement on 09.09.1980. She pleaded that because after death of her landlord-Smt. Sahodara (Downloaded on 18/08/2022 at 09:25:15 PM) (11 of 48) [CFA-115/1989] Devi, there is a dispute as regards to ownership of the suit property, therefore, she has not paid rent to any person, however she is agreeable to pay rent to the person held to be owner/landlord of the suit property as per direction of the Hon'ble Court. She admitted herself to be tenant in the portion of the suit property @ Rs.85/- per month but submitted that she is ready to pay the rent as per direction of the Court.
8. On the basis of pleadings of both parties, learned trial court framed five issues.
Issue No.1. Whether plaintiff is successor of the properties left by Smt. Sahodara Devi?
Issue No.2. Whether Gattulal on 09.12.1962 executed his last 'Will' for his properties in favour of plaintiff, if yes, what is the effect of that 'Will' on the present suit?
Issue No 3. Whether the plaintiff is entitled for permanent injunction and possession of the suit property, if yes then in what manner?
Issue No 4. Whether Smt. Sahodara Devi executed gift deed dated 03.10.1975 in favour of the defendant No.1 and then executed her last 'Will' dated 09.10.1976 in favour of defendant No.1 for her properties?
Issue No 5. What would the relief?
9. Plaintiff produced himself as PW-1 and produced witnesses PW-2 to PW-6 to prove his adoption and produced PW-7, the handwriting expert to disprove the signature of Smt. Sahodara Devi on the 'Will' in question. Plaintiff exhibited documents Exhibit-1 to Exhibit-10. Exhibit-1 and 2 are family Ration Card, Exhibit -3 and 4 are High School Educational Certificates, Exhibit-5 (Downloaded on 18/08/2022 at 09:25:15 PM) (12 of 48) [CFA-115/1989] is the Power of Attorney given by Gattulal. In these documents, plaintiff has been indicated as son of Gattulal. Exhibit-6 is the inventory prepared by police for the movable articles of Smt. Sahodara Devi pursuant to the judgment dated 03.05.1980, Exhbit-7 is 'Will' dated 09.12.1962 executed by Gattulal in favour of plaintiff. Exhibit-9 is the order dated 17.11.1977 passed by the Additional Collector, Jaipur in favour of Gattulal, Exhibit-10 is the list of jewelry articles of Smt. Sahodara Devi prepared by police. Exhibit-11 to 13 are negatives, exhibit 14 to 21 are positives and Exhibit-22 is the report of hand writing expert appeared as PW-7 and exhibited there documents.
10. The defendant No.1-Smt. Kamla Devi examined herself as DW-1 and produced both the attesting witnesses of the 'Will' in question dated 09.10.1976, Kedar Sharma as DW-2 (statements recorded on 27.07.1985), Satya Narain as DW-3 (statements recorded on 24.09.1985). In documentary evidence, defendant No.1 produced Exhibit-A1, gift deed by Motilal in favour of his wife Smt. Sahodara Devi, Exhibit-A2 gift deed dated 03.10.1975 made by Smt. Sahodara Devi in favour of defendant No.1-Smt. Kamla Devi, Exhibit-A3 and A4 sale deeds through which Smt. Sahodara Devi purchased portion of haveli separately, Exhibit-A5 is the 'Will' in question dated 09.10.1976 executed by Smt. Sahodara Devi in favour of defendant No.1-Smt. Kamla Devi. Few other documents, which were exhibited by plaintiff while cross-examining of the witness of the defendant are also there.
11. The statements of defendant No.2-Smt. Pushpa Bajaj were also recorded through the court Commissioner. (Downloaded on 18/08/2022 at 09:25:15 PM)
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12. Learned trial court, while decreeing the suit in favour of plaintiff vide its judgment dated 08.09.1989, decided in issue no.1 that adoption of plaintiff to Gattulal cannot be treated as lawful, however plaintiff is natural heir of Smt. Sahodara Devi, being son of sister of Motilal, who was deceased husband of Smt. Sahodara Devi. In issue No.2, the 'Will' dated 09.12.1962 by Gattulal in favour of plaintiff has been held proved. In issue No.4, the 'Will' dated 09.10.1976, executed by Smt. Sahodara devi in favour of defendant No.1-Smt. Kamla Devi has not been found proved and though the gift deed dated 03.10.1975 made by Smt. Sahodara Devi in favour of defendant No.1-Smt. Kamla Devi has been held to be executed.
As a result of the findings on issue No.1, 2 and 4, issue No.3 has been decided in favour of plaintiff and finally, plaintiff has been declared as successor of the deceased Smt. Sahodara Devi and entitled to get the possession of the suit property as well as rent @ Rs.85/- per month w.e.f. 24.07.1980 from the tenant defendant No.2.
13. Thus, feeling aggrieved by the judgment and decreed dated 08.09.1989, the defendant No.1 preferred this first appeal.
14. Before dealing with findings of trial court on issue No.1 and 2 this Court feels it better to first canvass the findings of trial court on issue No.4 because issue No.4 pertains to execution of the 'Will', alleged to be made by Smt. Sahodara Devi in favour of the defendant No.1 and plaintiff has challenged this 'Will' as forged and fabricated. Since it is trite law that testamentary succession precedes over the non-testamentary succession, therefore if the defendant No.1 succeeds in proving that Smt. Sahodara Devi has (Downloaded on 18/08/2022 at 09:25:15 PM) (14 of 48) [CFA-115/1989] executed 'Will' dated 09.10.1976 in her favour, the claim of plaintiff on the suit property of Smt. Sahodara Devi made on the basis of of natural succession, would follow the consequences as per the final findings passed by this Court on the 'Will' in question. Therefore, this Court deems it just and proper to deal with findings of trial court passed in relation to issue No.4 first. Issue No.4
15. It is well settled proposition of law that a civil suit has to be tried on the basis of pleadings of the contesting parties which have been placed on record in form of plaint and written statement submitted before the trial court and the case of the plaintiff and the contesting case of the defendant be examined as per the issues emerges out of pleadings and respective claims of the parties.
16. In the present case, plaintiff has instituted the plaint, making specific allegation against the defendant No.1 in para No.12 of the plaint that since defendant No.1 would not get right in the suit property of Smt. Sahodara Devi by virtue of law of natural succession, so defendant No.1 prepared a forged 'Will' dated 09.10.1976 of Smt. Sahodara Devi in order to grab her properties. It was pleaded by plaintiff that as a matter of fact Smt. Sahodara Devi never executed any 'Will' in favour of defendant No.1 and on the basis of such forged 'Will', defendant No.1 does not get any right in the properties of Smt. Sahodara Devi. The plaintiff has specifically stated that the 'Will' dated 09.10.1976, produced by defendant No.1-Smt. Kamla Devi before the District Judge in the proceedings under Section 192 of the Indian Succession Act, 1925 is forged and fabricated.
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17. This is an indisputed fact between the parties that prior to institution of the present civil suit, defendant No.1 had moved an application under Section 192 of the Indian Succession Act, 1925 before the District Judge, Jaipur City and by producing original 'Will' dated 09.10.1976 of Smt. Sahodaa Devi executed in her favour, put her claim for possession of the suit property of Smt. Sahodara Devi and over the other properties seized by Kotwali police. Section 192 to 210 of the Indian Succession Act are included in part VII of the Act, which deals with the topic "Protection of Property of deceased". Section 192 of the Indian Succession Act envisages a provision that if any person dies leaving property, movable or immovable, any person claiming a right by succession thereto may make application before the District Judge for seeking a relief with regard to the possession of the properties of deceased. Section 193 of the Indian Succession Act envisages a provision for holding an inquiry by the District Judge, on receipt of such application under Section 192 of the Indian Succession Act. Section 194 of the Indian Succession Act provides the procedure and purpose of inquiry. For ready reference Section 192, 193 and 194 of the Indian Succession Act are being reproduced hereunder:-
"192. Person claiming right by succession to property of deceased may apply for relief against wrongful possession.-
1) If any person dies leaving property, moveable or immoveable, any person claiming a right by succession thereto, or to any portion thereof, may make application to the District Judge of the district where any part of the property is found or situate for relief, either after actual possession has been taken by (Downloaded on 18/08/2022 at 09:25:15 PM) (16 of 48) [CFA-115/1989] another person, or when forcible means of seizing possession are apprehended.
2. Any agent, relative or near friend, or the Court of Wards in cases within their cognizance, may, in the event of any minor, or any disqualified or absent person being entitled by succession to such property as aforesaid, make the like application for relief.
193. Inquiry made by Judge.--The District Judge to whom such application is made shall, in the first place, examine the applicant on oath, and may make such further inquiry, if any, as he thinks necessary as to whether there is sufficient ground for believing that the party in possession or taking forcible means for seizing possession has no lawful title, and that the applicant, or the person on whose behalf he applies is really entitled and is likely to be materially prejudiced if left to the ordinary remedy of a suit, and that the application is made bona fide.
194. Procedure.--If the District Judge is satisfied that there is sufficient ground for believing as aforesaid but not otherwise, he shall summon the party complained of, and give notice of vacant or disturbed possession by publication, and, after the expiration of a reasonable time, shall determine summarily the right to possession (subject to a suit as hereinafter provided) and shall deliver possession accordingly:
Provided that the Judge shall have the power to appoint an officer who shall take an inventory of effects, and seal or otherwise secure the same, upon being applied to for the purpose, without delay, whether he shall have concluded the inquiry necessary for summoning the party complained of or not."
18. In the application filed under Section 192 of the Indian Succession Act, 1925 by the defendant No.1, the police authorities and tenant in the portion of properties of Smt. Sahodara Devi (Downloaded on 18/08/2022 at 09:25:15 PM) (17 of 48) [CFA-115/1989] namely Laxmi Chand Bajaj who is husband of defendant No.2-
Smt. Pushpa Devi was made party. Gattulal, after getting knowledge about such application, submitted his objections on 10.12.1977 claiming his right over the properties of deceased Smt. Sahodara Devi alleging himself to be her natural heir. It appears that thereafter Gattulal passed on 14.09.1978 and his wife Smt. Sanja Devi participated in the inquiry but she also died on 06.11.1979. Thereafter plaintiff-Manoharlal appeared in such proceedings and sought his impleadment in place of Gattulal on the basis of his 'Will' dated 09.12.1962. Plaintiff although was not impleaded as party in such proceedings because Gattulal himself was not party, however plaintiff was permitted to participate in the inquiry and to lead his evidence. The District Judge proceeded with the inquiry on formulation of issue as to whether applicant- Smt. Kamla Devi is entitled for the possession of the properties of deceased Sahodara Devi within the scope of Section 192 of the Indian Succession Act? Parties were allowed to produce their evidence through affidavits. Applicant-Smt. Kamla Devi produced her own affidavit as well as affidavits of Kedar Nath and Satya Narain who were the two witnesses of the 'Will' of Smt. Sahodara Devi. In counter, plaintiff-Manoharlal produced his own affidavit and produced an affidavit of tenant Laxmi Chand Bajaj. Plaintiff was also to cross-examine Smt. Kamla Devi and both the witnesses of 'Will' on their respective affidavits, produced to prove the execution of 'Will'.
19. In the inquiry under Section 192, the District Judge observed that according to the statements of Smt. Kamla Devi and both witnesses of the 'Will' it appears that Smt. Sahodara Devi (Downloaded on 18/08/2022 at 09:25:15 PM) (18 of 48) [CFA-115/1989] executed the 'Will' of her properties in favour of Smt. Kamla Devi and she was in sound state of mind and put her signatures on the 'Will' in presence of both witness. No counter evidence came on record in the inquiry that Smt. Sahodara Devi did not sign the 'Will' in question. The learned District Judge observed that the application moved by Smt. Kamla Devi is bona fide and on the basis of 'Will' of Smt. Sahodara Devi, she is entitled to get the possession of her properties. It was observed in such inquiry that the properties are in possession of police and tenant Laxmi Chand Bajaj. It was also observed that as far as rights claimed by Gattulal then his wife Sanja Devi and thereafter by Manoharlal, over the properties left by Smt. Sahodara Devi are concerned, it is not possible to examine their property rights in the scope of inquiry under Section 192 of the Indian Succession Act which is limited and summary in nature. Finally, after prima facie determination of the right of the applicant-Smt. Kamla Devi over the properties of Smt. Sahodara Devi on the basis of her 'Will', the inquiry was concluded by passing a final judgment dated 03.05.1980 in favour of Smt. Kamla Devi. The Copy of the judgment dated 03.05.1980 has been produced on record and there is no dispute that at least, prima facie the defendant No.1 succeeded to prove the execution of the 'Will' dated 09.10.1976 by Smt. Sahodara Devi in her favour in accordance with law in such legal proceedings.
20. It is true that the inquiry under Section 192 of the Indian Succession Act, 1925 is summary in nature and does not determine the rights of parties finally, in relation to the properties of Smt Sahodara Devi. In the judgment dated 03.05.1980, the (Downloaded on 18/08/2022 at 09:25:15 PM) (19 of 48) [CFA-115/1989] District Judge has also observed that the properties of Smt. Sahodara Devi be delivered to the applicant-Smt. Kamla Devi but she would be entitled to retain the possession until any judgment by the Court in regular civil proceedings is passed contrary to this judgment. The defendant No.1, while placing reliance upon this judgment dated 03.05.1980, contended in her written statement that plaintiff challenged this judgment by way of filing the revision petition before the High Court but revision petition was dismissed and judgment was affiremd. The counsel for petitioner, in his written submissions, admits that the plaintiff preferred S.B. Civil Revision Petition No.190/1980 (titled as Manoharlal Vs. Smt. Kamla Devi) before the Hon'ble Court, challenging the judgment dated 03.05.1980, however the revision petition was dismissed vide order dated 14.05.1980 with observation that if the petitioner (plaintiff herein) claims himself to be successor of late Smt. Sahodara Devi, same can only be proved by him in the proper legal proceedings and he can succeed, if the 'Will' of Smt. Sahodara Devi is not proved.
21. It may be noted here that this Court is not making the judgment dated 03.05.1980 as a basis to treat the 'Will' of Smt. Sahodara Devi in favour of the defendant No.1 as proved but has given reference of such proceedings and about the judgment dated 03.05.1980, for the reason that plaintiff has made an specific prayer in the present suit and asked for a decree of declaration that the judgment dated 03.05.1980 be declared as void and be quashed. The trial court, while decreeing the plaintiff's suit vide impugned judgment, has neither declared the judgment (Downloaded on 18/08/2022 at 09:25:15 PM) (20 of 48) [CFA-115/1989] dated 03.05.1980 as void and inoperative nor has quashed this judgment.
22. Be that as it may, this Court finds that the defendant No.1 was prompt enough to disclose and produce the 'Will in question to claim her rights over the properties of Smt. Sahodara Devi and when Smt. Sahodara Devi died on 04.03.1977, Smt. Kamla Devi has produced her 'Will' before the District Judge, Jaipur City in the legal proceedings initiated by way of moving an application under Section 192 of the Indian Succession Act, 1925. It reveals from perusal of judgment dated 03.05.1980, that an explanation was also given by Smt. Kamla Devi that at the time of death of Smt. Sahodara Devi, she was in Bikaner and when she returned to Jaiur and came to know about her death as also about the fact that on the complaint of tenant-Smt. Pushpa Devi, police has seized the properties of Smt. Sahodara Devi and further police did not extended any adherence to the claim of applicant, therefore, she moved this application. This Court finds that in the inquiry under Section 192 of the Indian Succession Act, 1925, which are obviously summary proceedings and are not determinative in nature to the effect of having final decision over the rights of the parties with regard to the suit properties of deceased Sahodara Devi, however the defendant No.1 has succeeded prima facie in proving the execution of 'Will' in question before the authority of law. Plaintiff challenged this judgment dated 03.05.1980 in his plaint but in the impugned judgment passed by the trial court, there are no finding against this judgment nor any kind of observation that the District Judge traveled beyond the jurisdiction or otherwise acted arbitrarily in concluding the inquiry under (Downloaded on 18/08/2022 at 09:25:15 PM) (21 of 48) [CFA-115/1989] Section 192 of the Indian Succession Act. The judgment has neither been declared void nor has been quashed. The plaintiff has not filed any cross objection nor have argued anything against the judgment dated 03.05.1980 before this Court. The judgment dated 03.05.1980 is relevant to the issue involved herein and goes to show that at least prima facie, the plaintiff has already proved execution of the 'Will' in question in accordance with law before the competent authority of law at the first possible instance. To this extent, the judgment dated 03.05.1980 has been considered by this Court.
23. As far as the 'Will' in question is concerned, plaintiff has come out with a specific case that the 'Will' in question is a forged and fabricated document. The averment in the plaint is that since the defendant No.1-Smt. Kamla Devi would not derive any title over the suit property of Smt. Sahodara Devi, by virtue of natural succession or inheritance, she forged this 'Will' dated 09.10.1976. The plaintiff has pleaded that Smt. Sahodara Devi never executed the 'Will' in question in favour of defendant No.1-Smt. Kamla Devi and has asked for a decree of declaration that the 'Will' in question be declared as forged and fabricated and be quashed. In the written statement, the defendant No.1 has resorted upon the 'Will' of Smt. Sahodara Devi and while denying the plaint allegations about plaintiff's right, title and interest over the suit property, she has pleaded that Smt. Sahodara Devi, executed the 'Will' dated 09.10.1976 and bequeathed her properties to defendant No.1-Smt. Kamla Devi. This is an undisputed fact that prior to execution of the 'Will' dated 09.10.1976, Smt. Sahodara Devi had executed a registered gift deed dated 03.10.1975 in (Downloaded on 18/08/2022 at 09:25:15 PM) (22 of 48) [CFA-115/1989] favour of defendant No.1-Smt. Kamla Devi, to transfer her other immovable properties, which are adjoining to the suit property and part of same haveli where suit property is situated. The plaintiff, though reserved his right to assail the gift deed of Smt. Sahodaa Devi but has never challenged the same. The execution of gift deed by Smt. Sahodara Devi in favour of defendant No.1- Smt.Kamla Devi, has been held proved and the issue No.4 to the extent of execution of the gift deed dated 03.10.1975 by Smt. Sahodara Devi in favour of Smt. Kamla Devi, has been decided in favour of the defendant No.1 and to that extent, findings of issue No.4 are not under challenge in the present first appeal.
24. Learned counsel for plaintiff has argued that the burden of proof of the 'Will' in question is upon the defendant No.1 and since by her evidence, she could not prove the execution of 'Will' in accordance with law, therefore, the trial court has rightly decided issue No.4 against the defendant No.1 and trial court has committed no error in deciding to accept the 'Will' in question as a lawful and valid document.
25. Per contra, learned counsel for appellant-defendant No.1 has argued that the execution of 'Will' has been proved in accordance with requirement of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Evidence Act, 1872. He submits that the trial court has fell into an error of fact and law in appreciating the evidence and could not construe the principle of burden of prove in right perspective. He submits that the plaintiff miserably failed to prove the factum of his allegation that 'Will' is a forged and fabricated document and in contrast thereto the defendant has successfully proved by her evidence that the 'Will' is genuine, (Downloaded on 18/08/2022 at 09:25:15 PM) (23 of 48) [CFA-115/1989] lawful and valid. Thus, he prays that findings of issue No.4 passed by the trial court in relation to 'Will' in question are perverse and liable to be reversed. The issue No.4 deserves to be decided as a whole in favour of the defendant No.1.
26. The question arises for consideration by this Court is about the validity of the 'Will' dated 09.10.1976 executed by Smt. Sahodara Devi in favour of defendant No.1-Smt. Kamla Devi.
27. According to Section 101 of Indian Evidence Act, the initial burden is on the plaintiff to prove his case that the 'Will' in question is a forged & fabricated document and defendant No.1 has prepared this fake 'Will' with collusion of her known person, both witnesses of 'Will', just in order to grab the properties of Smt. Sahodara Devi, after her death. The elementary rule of Section 101 of Indian Evidence Act, is inflexible and burden of proof never shifts upon the other party. It is the onus, which can be shifted from one party to another.
28. The principle of law, based on the provisions of Evidence Act, have been elaborately discussed and expounded in case of Anil Rishi Vs. Gurbaksh Singh [(2006) 5 SCC 558] as under:-
"There is another aspect of the matter which should be borne in mind. A distinction exists between a burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways : (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter evidence; and (iii) an indiscriminate use in (Downloaded on 18/08/2022 at 09:25:15 PM) (24 of 48) [CFA-115/1989] which it may mean either or both of the others. The elementary rule is Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same.
In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Anr. [(2003)8 SCC 752], the law is stated in the following terms :
"29. In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored to him. However, as held in A. Raghavamma v. A. Chenchamma there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff's title."
29. The trial court has not adhered to the aspect of burden of proof and has nowhere discussed as to whether plaintiff has discharged his onus to proof the allegation of forging the 'Will' by defendant No.1. The trial court, obviously committed illegality in ignoring this issue and misdirected itself in proceeding to decide the issue No.4 on the premise that burden lies only upon (Downloaded on 18/08/2022 at 09:25:15 PM) (25 of 48) [CFA-115/1989] the defendant No.1 to prove the 'Will' as genuine and lawful and valid document.
30. As far as proof of the 'Will' is concerned, the legal principles are no longer res-integra, that proponder must proof the will.
31. One of the celebrated decisions of this Court on proof of a will in H.Venkatachala Iyenger vs. B.N.Thimmajamma [AIR (1959) SC 443], wherein this Court has clearly distinguished the nature of proof required for a testament as opposed to any other document. The relevant portion of the said judgment reads as under:-
"18. ........The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions.(Downloaded on 18/08/2022 at 09:25:15 PM)
(26 of 48) [CFA-115/1989] Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters."
The judgment delivered in case of H. Venkatachala Iyenger (Supra) has been followed recently by the Hon'ble Supreme Court in case of Murthy Vs. C. Saradambal [(2022) 3 SCC 219].
32. In case of Madhukar D. Shende Vs. Tarabai Aba Shedage [(2002)2 SCC 85], the Hon'ble Supreme Court expounded the following proposition of law:-
"The requirement of proof of a will is the same as any other document excepting that the evidence tendered in proof of a will should additionally satisfy the requirement of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. If after considering the matters before it, that is, the facts and circumstances as emanating from the material available on record of a given case, the court either believes that the will was duly executed by the testator or considers the existence of such fact so probable that any prudent person ought, under the circumstances of that particular case, to act upon the supposition that the will was duly executed by the testator, then the factum of execution of will shall be said to have been proved. The delicate structure of proof framed by a judicially trained mind cannot stand on weak foundation nor survive any inherent defects (Downloaded on 18/08/2022 at 09:25:15 PM) (27 of 48) [CFA-115/1989] therein but at the same time ought not to be permitted to be demolished by wayward pelting of stones of suspicion and supposition by wayfarers and waylayers.
The conscience of the court has to be satisfied by the propounder of will adducing evidence so as to dispel any suspicions or unnatural circumstances attaching to a will provided that there is something unnatural or suspicious about the will. The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict positive or negative."
33. In case of Sridevi and Ors. Vs. Jayaraja Shetty & Ors. reported in [(2005)2 SCC 784], the Hon'ble Supreme Court has held as under:-
"It is well settled proposition of law that mode of proving the will does not differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63 of the Indian Succession Act, 1925. The onus to prove the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and proof of the signature of the testator, as required by law, need be sufficient to discharge the onus. Where there are suspicious circumstances, the onus would again be on the propounder to explain them to the satisfaction of the court before the will can be accepted as genuine. Proof in either case cannot be mathematically precise and certain and should be one of satisfaction of a prudent mind in such (Downloaded on 18/08/2022 at 09:25:15 PM) (28 of 48) [CFA-115/1989] matters. In case the person contesting the will alleges undue influence, fraud or coercion, the onus will be on him to prove the same. As to what are suspicious circumstances have to be judged in the facts and circumstances of each particular case. (For this see H. Venkatachala Iyengar v. B.N. Thimmajamma & Ors.
[(1959) Supp.1 SCR 426] and the subsequent judgments Ramachandra Rambux v. Champabai & Ors. [(1964) 6 SCR 814]; Surendra Pal & Ors. v. Dr. (Mrs.) Saraswati Arora & Anr. [(1974) 2 SCC 600]; Smt. Jaswant Kaur v.
Smt. Amrit Kaur & Ors. [(1977) 1 SCC 369]; and Meenakshiammal (Dead) thr. LRs. & Ors. v.
Chandrasekaran & Anr. [(2005) 1 SCC 280)."
34. Thus, the onus of proving the 'Will' is always on the propounder. Propounder must prove the execution of 'Will' by the testator and at least one attesting witness is required to be examined for the purpose of proving the execution of '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 the testator was in sound disposal state of mind and understood the nature and effect of his/her disposition. It is also required to be established that he has signed the 'Will' in presence of two witnesses who attested his signatures in his presence or in presence of each other. If there exists some suspicious circumstances, the onus would be on the propunder to explain them to the satisfaction of the Court. The conscience of the Court has to be satisfied by the propounder of 'Will'.
35. Preponderance of probabilities is another well known legal principle of law and in the presence case where the plaintiff has instituted the suit challenging the 'Will' in question as forged, in (Downloaded on 18/08/2022 at 09:25:15 PM) (29 of 48) [CFA-115/1989] that contrast the defendant No.1 is required to proof the execution of 'Will' by applying the principle that of "balance of probability"
and not that of "beyond doubt" as applies in criminal cases.
36. Keeping in mind, such legal principles, now the evidence of both parties may be weigh and examined.
36.1 On appreciation of evidence adduced by the plaintiff, it appears that in order to discharge his burden to show that the 'Will' is forged and fabricated document, the plaintiff has examined himself as PW-1 and has produced one handwriting expert as PW-7. His witnesses PW-2 to PW-6 deposed their evidence to prove the factum of his adoption to Gattulal and they are not witnesses with regard to the issue of the 'Will' in question. The plaintiff (PW-1) has only stated that Smt. Sahodara Devi never executed any 'Will' in favour of Smt. Kamla Devi and Smt. Kamla Devi on the basis of 'Will' in question is not owner of the properties of Smt. Sahodara devi. The plaintiff even has not denied the signatures of Smt. Sahodara Devi on the 'Will' in question. The plaintiff nowhere stated by exhibiting the 'Will' in question, in his evidence that the signatures on the 'Will' in question are not of Smt. Sahodara Devi nor plaintiff denied the signatures of attesting witnesses nor questioned the veracity of the 'Will' in any way and evidence of PW-1 is wholly silent in this respect. The plaintiff's case is substantially based on the allegations of forging the 'Will' in question by defendant No.1 and in absence of any direct and ocular evidence to prove this fact, such allegations could not be proved on assumptions and presumptions. The plaintiff has nowhere made out any basis of making such allegation against defendant No.1 for preparing the (Downloaded on 18/08/2022 at 09:25:15 PM) (30 of 48) [CFA-115/1989] 'Will' as forged and fabricated. It is not the case of the plaintiff either in pleadings or in evidence that he at any time met with Smt. Sahodara Devi pre and post the execution of the 'Will', he had any interaction with Smt. Sahodara Devi or ever had been visited to the place of Smt. Sahodara Devi during her life time. Under such facts and circumstances, the allegation pleaded by the plaintiff about the 'Will' in question being forged and fabricated document, are not based on any knowledge and information of plaintiff and there are no foundational facts to make such allegations, what to say of proving of such allegations. 36.2 As far as evidence of the handwriting expert (PW-7), is concerned, the PW-7 stated that he compared the signatures of Smt. Sahodara Devi on the 'Will' in question with the signatures of Smt. Sahodara Devi on the registered gift deed dated 03.10.1975 (Exhibit-A2). It means handwriting expert has taken the signatures of Smt. Sahodara Devi from her gift deed as her standard signatures. The plaintiff (PW-1) himself in his evidence has disputed the signatures of Smt. Sahodara Devi on the gift deed (Exhibit-A2).
36.3 The document of gift deed (Exhibit-A2) was put to PW-1 in his cross-examination where he deposed that I can identify the signatures of Smt. Sahodara Devi and on document (Exhibit-A2) at two places A to B signatures are not of Smt. Sahodara Devi. Thus, when plaintiff himself has disputed the signatures of Smt. Sahodara Devi on the gift deed (Exhibit-A2), he cannot place reliance upon the opinion of handwriting expert (PW-7) who gave his report about the signatures of Smt. Sahodara Devi on the 'Will' in question, taking the signatures of Smt. Sahodara Devi as (Downloaded on 18/08/2022 at 09:25:15 PM) (31 of 48) [CFA-115/1989] standard signatures or admitted signatures on the gift deed (Exhibit-A2). Once plaintiff himself stated that he can identify the signatures of Smt. Sahodara Devi, and he himself did not deny the signatures of Smt. Sahodara Devi on the 'Will' in question, that itself raises an adverse inference against the plaintiff, for challenging the 'Will'.
36.4 The evidence of handwriting expert (PW-7) is only an opinion and such opinion cannot over weigh the direct evidence. In relation to the evidential value of the handwriting expert, the proposition of law is well settled. In case of Dulal Chandra Adak and Anr Vr. Gunadhar Patra and Anr. Reported in [AIR (1998) Calcutta 150], it was held by the Calcutta High Court that it is settled proposition of law that evidence of the expert cannot out weigh the direct evidence. Moreover, the evidential value of the handwriting expert opinion is not a substantive one but a corroborative. The Supreme Court in case of Ishwari Prasad Misrha Vs. Mohammad Isa [AIR (1963) SC 1728] pointed out that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence. In the case of Shashi Kumar Banerjee and Ors. Vs. Subhodh Kumar Banerjee (dead) through LRs [AIR (1964) SC 529], it was pointed out that expert evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated by other evidence. 36.5 In the present case at hand, there is no direct or corroborative evidence from the side of plaintiff to show that signatures of Smt. Sahodara Devi on the 'Will' in question are (Downloaded on 18/08/2022 at 09:25:15 PM) (32 of 48) [CFA-115/1989] forged. The trial court has doubted about the signatures of Smt. Sahodara Devi on the 'Will' in question on the basis of statements of PW/7 and his report (Exbhibit-22) who is a handwriting expert. Sole evidence of PW-7 being handwriting expert is not sufficient for the plaintiff to prove that the 'Will' in question is forged and fabricated document. In the opinion of this Court, the trial court has committed error of fact and law in placing reliance upon the evidence of expert while deciding issue No.4 against the defendant No.1.
36.6 The defendant No.1 is propounder of the 'Will' in question and it has come on record that she was present at the time of execution of the 'Will'.
36.7 Defendant (DW-1) exhibited the 'Will' in question as (Exhibit-A5) and stated that on both pages of 'Will' A to B signatures are of Smt. Sahodara Devi, she deposed that C to D signature is of Satya Narain and E to F is of Kailash Nath. She deposed that all signatures were made in her presence, she deposed that both witnesses of 'Will', Kedra Nath and Satya Narian were present at the time of signing the 'Will' by Smt.Sahodara Devi and the 'Will' was executed at home of Smt. Sahodara Devi, she stated that at the time of execution of 'Will', Smt. Sahodara Devi was in sound state of mind.
36.8 The defendant produced Kailash Nath as DW-2 who is one of the signaturee of the 'Will' in question as witness. DW-2 has clearly stated that he knows Sahodara Devi and she executed a 'Will' in favour of Smt. Kamla Devi and signed the 'Will' in his presence. He states that 'Will' is Exhibit-A5 and on this 'Will' Smt. Sahodara Devi signed on both pages at place A to B in his (Downloaded on 18/08/2022 at 09:25:15 PM) (33 of 48) [CFA-115/1989] presence. His signature is E to F. He stated that he signed on the 'Will' in presence of Smt. Sahodara Devi. DW-2 further deposed that Satya Narain also made his signature on the 'Will' as witness and his signatures are C to D. He has also deposed that Smt. Sahodara Devi was mentally fit at the time of execution of the 'Will'.
36.9 Defendant has also produced another witness of 'Will' Satya Narain as DW-3. DW-3 has stated that he knows Smt. Sahodara Devi and Smt.Kamla Devi. He deposed that Smt. Kamla Devi resides in the house, given by Smt. Sahodara Devi, he read over the 'Will; before Smt. Sahodara Devi. He stated that the 'Will' is exhibit-A5 and on its both pages, signature of Smt. Sahohara Devi is at place A to B, his signature is at place C to D and E to F are signatures of Kedar Ji. DW-3 has deposed that when Smt. Sahodara Devi signed the 'Will', he and Kedar both were present and further both made their signatures in presence of Smt. Sahodara Devi. DW-3 has also stated about the sound mental condition of Smt. Sahodara Devi at the time of signing the 'Will' in question.
36.10 On appreciation of the evidence of DW-1, DW-2 and DW-3 it appears that the defendant No.1 has discharged her onus to prove the 'Will' in question in accordance with law. Defendant No.1 has examined herself as well as produced both witnesses of 'Will'. On appreciation of their evidence, the essential requirement as per Section 63 of the Indian Succession Act and Section 68 of the Evidence Act stand proved. From the side of plaintiff, the evidence of DW-1 has not been impeached in any manner nor after her cross-examination, her evidence can be treated as shaky (Downloaded on 18/08/2022 at 09:25:15 PM) (34 of 48) [CFA-115/1989] or untrustworthy. The basic evidence of DW-2 and DW-3 who are witnesses of the 'Will' in question also remained trustworthy and reliable. Merely because both witnesses were known to Smt. Kamla Devi also, their evidence may not be discarded. The trial court has committed error in not taking into consideration the evidence of witnesses treating them as interested witnesses. 36.11 The trial court has noticed some contradictions and discrepancies in the evidence of defendant (DW-1) and witnesses DW-2 and DW-3. In fact such contradictions have been noticed by the trial court, while comparing the statements of DW-2 and DW-3 with their previous statements, recorded during the course of inquiry under Section 192 of the Indian Succession Act, 1925 before the District Judge. The previous statements of DW-2 and DW-3 have been produced on record as Exhibit-10 and Exhibit-11. The trial court observed that DW-1 and DW-2 stated that the 'Will' was executed and signed by Smt. Sahodara Devi at the house of Smt. Sahodara Devi whereas DW-3 stated that 'Will' was executed and signed at the house of Smt.Kamla Devi. In fact, as per statement of DW-3 Satya Narain, Smt. Kamloa Devi resides at that time in the house given by Smt. Sahodara Devi, who is situated in the same haveli adjoining to the suit property. The trial court noticed that DW-2 stated in his previous statements (Exhibit
-10) that he knows Smt. Kamla Devi only from the date of execution of 'Will' whereas in the statements made before this Court, DW-2 stated that he knows Smt. Kamla Devi for 2-4 years before the execution of 'Will'. The trial court noticed that DW-3 in his previous statements (Exhibit-11) stated that Smt. Sahodara Devi did not make her signatures on the 'Will' in his presence but (Downloaded on 18/08/2022 at 09:25:15 PM) (35 of 48) [CFA-115/1989] in the present statements before this Court, he stated that Smt. Sahodara Devi signed the 'Will' in his presence. Some contradiction about reading over the 'Will' by Satya Narain before Smt. Sahodara Devi were also noticed.
36.12 The contradiction in statements of DW-1 and DW-2 are not major contradictions. In case of Appa Bhai and Anr Vs. State of Gujarat reported in [AIR (1988) SC 696] the Hon'ble Supreme Court has emphasized that while appreciating the evidence, the Court should not attach undue importance to minor discrepancies. If few contradictions and discrepancies appear in statement of witnesses, their evidence cannot be disbelieved when such contradictions are not of substantial character. It is also a rule of evidence that when the statements of witnesses are recorded after expiry of a long period of time from the date of execution of the document, some contradictions and discrepancies in their statements are natural, which can be brushed aside unless they do not impeach the fundamental and basic evidence. In the presence case also, the 'Will' in question was executed on 09.10.1976. Statements of defendant (DW-1) recorded on 06.05.1983, statements of DW-2 were recorded on 27.07.1985 and statements of DW-3 were recorded on 24.09.1985. The trial court did not advert to this aspect and extended over weigh to the contradictions in the statements of DW-1, DW-2 and DW-3. More particularly, comparing their statements with the previous statements recorded during the course of inquiry under section 192 of the Indian Succession Act, 1925. The trial court has not noticed that as far as requirement of law to prove the 'Will' in (Downloaded on 18/08/2022 at 09:25:15 PM) (36 of 48) [CFA-115/1989] accordance with the provisions of Evidence Act and Succession Act is concerned, the same stands satisfied.
36.13 This Court finds that the requirement of law to prove the execution of 'Will' is that at least one attesting witness of 'Will' should be examined for the purpose of proving the execution of 'Will'. Such requirement of law stands proved by Kedar DW-2 who is one of attesting witness the 'Will' (Exhibit-A5). From the evidence of DW-1 and DW-2, it is clearly established that the testator executed the 'Will' and made her signatures out of her free will and volition and further at the relevant time she was in sound disposing state of mind so as to understand the nature and effect of her disposition. DW-1 and DW-2 have also proved that Smt. Sahodara Devi signed the 'Will' in presence of two witnesses who attested her signatures in her presence and DW-2 has also deposed that he also made her signatures on the 'Will' in presence of the executrix Smt. Sahodara Devi. Thus, as far as requirement to prove the execution of 'Will' in accordance with the provisions of Evidence Act and Succession Act have been fulfilled. The statements of DW-3 are in addition and supportive to the evidence of DW-1 and DW-2. Even if his evidence is ignored, the 'Will' stands proved by the evidence of DW-1 and DW-2 only. 36.14 The trial court has extended immense weightage on the aspect that in the evidence of defendant, it has not been clarified that who got prepared the draft of 'Will' and defendant could not disclose the name of person who wrote the 'Will'. The trial court has noted that none of the witness from the side of defendant could state that when and from whom Smt. Sahodara Devi got prepared the draft of 'Will', who typed the 'Will'. The 'Will' is not (Downloaded on 18/08/2022 at 09:25:15 PM) (37 of 48) [CFA-115/1989] typed on any stamp and neither date of typing the 'Will' is indicated nor the name of signatures of the person who typed the 'Will' is mentioned. As far as this aspect is concerned, there is no essential and mandatory requirement in law that 'Will' must be executed on any stamp paper and unless name of its scriber is not disclosed or the scriber of 'Will' is not produced in evidence, 'Will' may not be held as proved. The production of scriber or the person who typed the 'Will', may be a corroborative and supportive evidence but in absence of such evidence, it is difficult to hold that the 'Will' may not be treated as genuine and valid, therefore, the trial court has committed error in treating the 'Will' as suspicious on this count.
36.15. Learned counsel for the plaintiff has raised an argument that the 'Will' in question is surrounded by suspicious circumstances. Firstly, he submits that the propounder of 'Will' Smt. Kamla Devi participated in the process of execution of the 'Will' and this itself is a suspicious circumstance. The reliance has been placed upon the judgment delivered in case of Guru (Smt.) Vs. Atma Singh and Ors.[(1992)2 SCC 507], propounder himself took a major part in making of 'Will' and received substantial benefit and that was treated as suspicious circumstance but in the present case the factual scenario is entirely different. There is no natural successor of Smt. Sahodara Devi as her husband pre-deceased her and she died issue-less. None of her relative took care during her old age and after being widow. Smt. Kamla Devi, propounder of 'Will' was surviving Smt. Sahodara Devi in her old age and Smt. Sahodara Devi had love and affection for her which is vouched by the gift deed executed (Downloaded on 18/08/2022 at 09:25:15 PM) (38 of 48) [CFA-115/1989] by Smt. Sahodara Devi in favour of Smt. Kamla Devi prior to the present 'Will'. Thus, in the present facts and circumstance, if the propounder of 'Will' has participated in execution of 'Will' same may not be treated as suspicious circumstance to hold the 'Will' as invalid. The Hon'ble Supreme Court in case of Savitri and Ors. Vs. Karthyayani Amma and Ors. [(2007)11 SCC 621] has held that if the testator was having implicit faith and confidence only upon the person who had been looking after him/her, it is not unnatural to bequeath her property excluding the natural heirs and participation of that person in execution of 'Will' was not treated as suspicious circumstance.
36.16 The trial court has not considered that there is nothing unnatural and improbable, that why Sahodara Devi executed 'Will' in favour of Kamla Devi. It is admitted fact that Sahodara Devi was issue-less and her husband Motilal predeceased her. Smt. Kamla Devi was taking care of Sahodara Devi and had won her heart and faith. Smt. Sahodara Devi had love and affection for Kamla Devi, which is vouched by the gift deed in respect of one of the portion of haveli, executed by Sahodara Devi in favour of Kamla Devi. The gift deed (Exhibit-A2) is an admitted and unquestioned document. In the gift deed, Smt. Sahodara Devi clearly stated that her husband has expired and she has no issue and Smt. Kamla Devi is daughter of her sister who is taking her care and rendering her services to her since about two years. It is also stated that she is happy with services of Smt.Kamla Devi. The 'Will' in question (Exhibit-A5), was executed on 09.10.1976 it means after a year about execution of the gift deed. There is recital in the 'Will' that since during the life time of her husband, (Downloaded on 18/08/2022 at 09:25:15 PM) (39 of 48) [CFA-115/1989] family relations with Gattulal who happened to be brother of her husband, are not cordial and there is no near relative who can take care in her old age. In such circumstances, it is natural and nothing abnormal that Smt. Sahodara Devi executed 'Will' in favour of Smt. Kamla Devi, for her remaining properties. The plaintiff has disputed the 'Will' merely on the assumptions and presumptions and in the given facts and circumstances, the 'Will' cannot be treated to be surrounded by suspicious circumstances. If there are any suspicious circumstance, same are duly explained in the present case.
36.17 Learned counsel for respondent has raised an argument that why the suit property was not gifted while the gift deed dated 03.10.1975 was executed and this is a suspicious circumstance about execution of the 'Will' on 09.10.1976 but this argument has clearly been countered by the learned counsel for the appellant- defendant that Smt. Sahodara Devi was certainly having love and affection towards Smt. Kamla Devi and the properties in the haveli purchased by Smt.Sahodara Devi through registered sale deed dated 21.09.1955 (correct dated 04.11.1955) have been transferred to Smt. Kamla Devi during her life time and for remaining properties, including the part of haveli received to Smt. Sahodara Devi by way of gift from her husband, she kept the ownership with herself and decided to bequeath the ownership and possession of these properties to Smt.Kamla Devi only after her death. The argument made by learned counsel for the appellant-defendant seems to be appealable and believable. In such circumstances, the probabilities of circumstance are in favour of the defendant No.1-Smt. Kamla Devi to hold that Smt. (Downloaded on 18/08/2022 at 09:25:15 PM) (40 of 48) [CFA-115/1989] Sahodara Devi executed the 'Will' in question in her favour. It is settled law that 'Will' has to be adjudged sitting in the arm chair of the testator/testatrix and the decision of the testator/testatrix is final, may it be disturbing the ordinary course of succession. It is not the case of plaintiff neither in pleadings nor in his evidence that he or Gattulal ever rendered any service to Smt. Sahodara Devi in her old age even after she being a widow. There is no iota of evidence that they ever visited or even met with Smt. Sahodara Devi during her life time.
36.18 The trial court has not noticed that the direct and ocular evidence to prove the execution of 'Will' by Smt. Sahodara Devi and about her signatures on the 'Will' in question has come on record. Further such evidence has not shaken or has not been impeached from the side of plaintiff and as such the same could not have been ignored and disbelieved. It is the case where the plaintiff (PW-1) who admits that he identifies the signature of Smt. Sahodara Devi but has not dared to deny the signature of Smt. Sahodara Devi on the 'Will' in question. Per contra, the defendant No.1 has produced both witnesses of 'Will' as DW-2 and DW-3 who have deposed direct evidence to prove the signature of Smt. Sahodara Devi on the 'Will', merely on the basis of some minor contradictions as noticed by the trial court, the execution of 'Will' could not be belie. In fact, inconsistencies in the evidence of defendant as noticed by the trial court are insignificant. It is settled law that the burden of proof in civil cases is that of "balance of probability" and not that of "beyond reasonable doubt". Minor consistencies in evidence are not relevant in civil cases, in considering the question of discharge of burden. This (Downloaded on 18/08/2022 at 09:25:15 PM) (41 of 48) [CFA-115/1989] principle has been reiterated by the Hon'ble Supreme Court in number of cases Sarjudas and Anr. Vs. State of Gujarat [(1999) 8 SCC 508], State of Rajasthan Vs. Netrapal & Ors. [(2007) 4 SCC 45] and followed in Mahesh Dattatray Thirthkar Vs. State of Maharasthra [(2009)11 SCC 141]. On this count also, the approach of trial court in not believing upon the direct and ocular evidence of the defendant cannot be countenanced.
36.19 This Court finds that as far as plaintiff's case is concerned, the allegations levelled against the defendant No.1 to prepare a forge 'Will', are totally illusory and baseless. Neither he has shown any basis to make such allegations nor has produced any iota of evidence in support of such allegation. Rather the plaintiff (PW-1) has not even denied and disputed the signature of Smt. Sahodara Devi on the 'Will' in question. On the contrary, the defendant No.1-Smt. Kamla Devi has proved the execution of 'Will' in accordance with law by producing cogent and coherent evidence. Defendant No.1 has produced best possible evidence, which is sufficient to prove the execution of Will as required in law. There is no dispute about defendant's evidence that Sahodara Devi was in sound state of mind and healthy, at the time of execution of Will and she signed the Will in presence of two witnesses. The will has been proved beyond any suspicion. Thus the will in question stands proved within four corners of law and is a genuine, lawful and valid document.
36.20. Learned counsel for the plaintiff has placed reliance upon two judgments in case of Lalitaben Yayantilal Potat Vs. Pragnaben Jamandas Kataria and Ors. [(2008)15 SCC 365] (Downloaded on 18/08/2022 at 09:25:15 PM) (42 of 48) [CFA-115/1989] and Syed Askari Hadi Ali Augustine Imam and Anr. Vs. State of (Delhi Admn.) and Anr. [(2009)5 SCC 52]. These judgments propound the principle of law that suspicious circumstances have to be clarified by the propounder of 'Will'. In the present case no substantive suspicious circumstances have appeared on record and if any, the same have been explained by the propounder as discussed hereinabove. On overall appreciation of facts and circumstances, the execution of Will by Sahodara Devi, in favour of Kamla Devi cannot be held to be improbable & unnatural and suffer from any suspicion. Therefore, the proposition of law is not applicable to the facts of present case. 36.21 Few other judgments in case of Janki Narayan Bhoir vs. Narayan Namdeo Kadam [(2003) 2 SCC 91], Lalitaben Jayantilal Popat Vs. Pragnaben Jamnadas Kataria and ors.
[(2008)15]SCC 365 and Yumnam Ongbi Tampha & Imbemma Devi Vs. Yumnam Joykumar Singh & Ors.
[(2009)4 SCC 780] referred by learned counsel for plaintiff are in relation to manner of proof of the 'Will' in accordance with Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act and it has been expounded therein that at least one attesting witness should be examined who should prove the execution of 'Will' by the testator. That such principle of law has been followed in the present case. The defendant No.1 who is propounder of 'Will' has examined herself and has also produced both witnesses of 'Will'.
36.22 This court finds that findings of the trial court with regard to the 'Will' in question are erroneous and not liable to be sustained. Thus, in the opinion of this Court, the trial court has (Downloaded on 18/08/2022 at 09:25:15 PM) (43 of 48) [CFA-115/1989] committed error of fact and law in deciding issue No.4 against the defendant No.1, in relation to the 'Will' in question and such finding are liable to be set aside and reversed.
37. It is no more res-integra that the first appellate court has power to reverse fact findings of the trial court, if the appraisal of the evidence by the trial court suffers from material irregularity or is based on conjectures and surmises. On this count, the jurisdiction of first appellate court as discussed by the Hon'ble Supreme Court in case of Santosh Hazari Vs. Purushottam Tiwari [(2001)3 SCC 179], which has been endorsed in a subsequent judgment in case of Madhukar and Ors. Vs. Sangram and Ors. reported in [(2001) 4 SCC 756] may be referred herein:-
"The Appellate Court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law. the whole case is therein open for rehearing both on questions of fact and law. The judgment of the Appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the Appellate Court.............while reversing a finding of fact the Appellate Court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the First Appellate Court had discharged the duty expected of it.
The salutary principles referred to above in Santosh Hazari case have been respected in their breach."(Downloaded on 18/08/2022 at 09:25:15 PM)
(44 of 48) [CFA-115/1989]
38. The hon'ble Supreme Court in recent case of Gurnam Singh (D) by LRs Vs. Lahna Singh (D) LRs reported in [(2019)7 SCC 641] has occasion to reconsider the jurisdiction of first appellate court. In that case, the trial court found the registered 'Will' relied upon by the defendant as suspicious, however the first appellate court allowed the appeal preferred by the defendant and on appreciation of evidence on record and after dealing with the suspicious circumstances, by giving cogent reasons held the 'Will' as genuine. The Hon'ble Supreme Court observed that the first appellate court acted well within its jurisdiction in reversing the findings of the trial court, after dealing with the evidence and giving cogent reasons to set aside the judgment and decree of trial court.
39. In case of B.V. Nagesh Vs. H. V. Sreenivasa Murthy [(2010)13 SCC 530] this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle in these words: (SCC pp. 530-31, paras 3-4) "3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 Code of Civil Procedure has been considered by this Court in various decisions. Order 41 Code of Civil Procedure deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state:
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and (Downloaded on 18/08/2022 at 09:25:15 PM) (45 of 48) [CFA-115/1989]
(d) where the decree appealed from is reversed or varied, the relief to which the Appellant is entitled.
4. the appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 at p. 188 para 15 and Madhukar v. Sangram (2001) 4 SCC 756 at p. 758, para 5.)"
40. Therefore, for the discussion made hereinabove, findings of the trial court in relation to issue No.4 as far as 'Will' in question is concerned are set aside and issue No.4 is decided in favour of the defendant No.1-Smt. Kamla Devi as a whole.
Issue No.1
41. In issue No.1, the plaintiff is claiming himself to be a successor of Smt. Sahodara Devi on two grounds:-
a) Plaintiff is son of sister of Gattulal. Gattulal was elder brother of Motilal and Motilal was deceased (Downloaded on 18/08/2022 at 09:25:15 PM) (46 of 48) [CFA-115/1989] husband of late Smt. Sahodara Devi. Plaintiff claimed that since Smt. Sahodara Devi died issue-less and intestate, therefore as per this chain of succession, plaintiff is the natural successor of late Smt. Sahodara Devi, being son of her deceased husband's sister.
b) Another ground is that plaintiff claimed that he was adopted by Gattulal and Gattulal made 'Will' dated 09.12.1962 in his favour thus, when Smt. Sahodra Devi died intestate, her properties devolves upon Gattulal brother of her deceased husband Motilal and therefore, after death of Gattulal, by virtue of 'Will' of Gattulal, plaintiff inherits the suit property of Smt. Sahodara Devi.
42. As far as claim of plaintiff based on the ground 'a' is concerned, the trial court has already held that the adoption of plaintiff to Gattulal is not legal and the plaintiff's case has been denied. Neither any cross-objection has been filed by the plaintiff nor any arguments have been advanced by learned counsel for the plaintiff against such findings of trial court. Hence no further elucidation is required by this Court in this respect.
43. As regards, the claim of plaintiff on the ground 'b' is concerned, even if it has been found that plaintiff is a natural successor of Smt. Sahodara Devi following the chain of succession that plaintiff is son of sister of Motilal, who was deceased husband of Smt. Sahodara Devi. But this Court while deciding issue No.4 has found that Smt. Sahodara Devi has executed the 'Will' dated 09.10.1976 in favour of defendant No.1-Smt.Kamla Devi and that 'Will' has been held to be a genuine, lawful and valid, therefore on the basis of such 'Will' defendant No.1 succeeds the suit properties left by Smt. Sahodara Devi. It is settled law that (Downloaded on 18/08/2022 at 09:25:15 PM) (47 of 48) [CFA-115/1989] testamentary succession prevails over the non-testamentary succession. In view of findings passed by this Court in issue no.4, the claim of plaintiff to be successor of Smt. Sahodara Devi on ground 'b', loses its significance and is of no benefit for the plaintiff to get the possession of properties of Smt. Sahodara Devi. Accordingly, the issue No.1 is answered. Issue No.2
44. As far as issue No.2 is concerned, there is no effect of the 'Will' of Gattulal dated 09.12.1962, even if executed in favour of plaintiff since properties of Smt. Sahodara Devi never devolved upon Gattulal and on the basis of her 'Will', as per findings of the issue No.4, devolved upon the defendant No.1.
Issue No.3
45. As far as issue No.3 is concerned, while deciding the issue No.4, this Court has concluded that Smt. Sahodara Devi executed 'Will' dated 09.10.1976 in favour of defendant No.1-Smt. Kamla Devi, therefore, she succeeds the suit property of Smt. Sahodara Devi and plaintiff is not entitled for any decree of permanent injunction and possession in relation to the suit property, accordingly this issue is held against the plaintiff.
46. Before parting with the judgment, it is hereby observed that, when this Court has found that the defendant No.1 succeeds the suit properties of Smt. Sahodara Devi and the decree passed by the trial court in favour of the plaintiff deserves to be set aside, it is needless to clarify that as far as payment of rent by defendant No.2, for her tenanted portion in the suit property, is (Downloaded on 18/08/2022 at 09:25:15 PM) (48 of 48) [CFA-115/1989] concerned, the defendant No.1 would be entitled to receive the rent with effect from the date of suit i.e. 24.07.1980, but if defendant No.2 has already paid rent for any period thereafter, the same would not be recoverable nor would be demanded again from the defendant No.2.
47. The upshot of discussion is that the first appeal is allowed. The impugned decree is set aside and the suit filed by the plaintiff is dismissed. No cost.
48. Any other pending application(s) if any, stand(s) disposed of.
(SUDESH BANSAL),J TN (Downloaded on 18/08/2022 at 09:25:15 PM) Powered by TCPDF (www.tcpdf.org)