Allahabad High Court
Inder (Deceased) S/O Mahesh And Ors. vs Gujrati Widow Of Buddhu Yadav And ... on 28 February, 2008
JUDGMENT Shiv Charan, J.
1. The instant second appeal has been instituted against the judgement and decree dated 28.9.2007 passed by Addl. District Judge Court No. 2 Jaunpur in Civil Appeal No. 76 of 1995 Inder (deceased) Shiv Shankar and Ors. v. Gujrati and Ors. By the impugned judgement and decree the appellate court dismissed the appeal of the appellant with cost.
2. The present appellant instituted Original Suit No. 221/87 Inder v. Gujrati for cancellation of sale deed dated 6.11.86 executed by defendant Gujrati in favour of defendant No. 2 Kailash. A pedigree was given in the plaint and according to this pedigree Buddhu Yadav was recorded Bhumidhar of the property described at the foot of the plaint. Defendant No. 1 Smt. Gujrati is the wife of Buddhu Yadav. That the plaintiff Inder was looking after the welfare of Buddhu Yadav and he was living with the plaintiff Inder. And that Buddhu was extremely happy with the service rendered by the plaintiff and his sons and it was heartiest wish as desired by Buddhu Yadav that after his death his property must be looked after by the plaintiff. With this intention Buddhu Yadav executed a will dated 28.12.80 in favour of the appellant. That after the death of Buddhu Yadav the plaintiff is in possession of the property in dispute but as a matter of inheritance the name of widow namely, Gujrati was recorded in the Revenue record. But Smt. Gujrati has no right to execute the sale deed of the property in dispute in accordance of the terms of the will. The right was given to Gujrati for her life time without transferable rights. But Gujrati illegally executed a sale deed on 6.11.1986 in favour of Kailash Nath and sale deed was against the terms and condition of the will dated 28.12.80 hence this sale deed is illegal, null and void. That Gujrati has no right and title to transfer the property In dispute.
3. The suit was contested by the defendants, written statement was filed and the allegations of the plaint were denied. It has further been admitted that Buddhu Yadav was the Bhumidhar in possession of the property in dispute. That Kali Deen father of Buddhu Yadav had one daughter also and she was married with Ganesh Yadav of Navada. Kailash Yadav defendant No. 2 is the son of the daughter of Kalideen father of Buddhu Yadav. That partition took place of the property in dispute from Inder much earlier in life time of Buddhu Yadav. All the co-sharers had separate living and earning. Agriculture was also separate of each of the co-partner. It is wrong to allege that Buddhu Yadav along with defendant No. 1 lived with Inder and Inder plaintiff with his sons was looking after the welfare of Buddhu Yadav and defendant No. 1 and that Buddhu Yadav due to his heart felt feeling wanted to deliver the property to Inder and his sons. That the will dated 28.12.80 is a forged document. After the death of Buddhu Yadav defendant No. 1 Gujrati has inherited the property. Defendant No. 1 was fully entitled to execute the sale deed of the property in dispute and the sale deed was duly executed in consideration of money. Both the parties produced the evidence in support of their allegations and the trial court framed eight issues for the decision of the suit and after considering the evidence of the parties the suit of the plaintiff-appellant was dismissed by the trial court and Civil Appeal No. 76/95 was also dismissed by the Addl. District Judge, Jaunpur and thereafter the present second appeal has been instituted.
4. I have heard learned Counsel for the appellants and perused the judgement of the courts below and also the pleadings of the parties and other documents filed on record.
5. It has been argued by learned Counsel for the appellant that the court below recorded the finding on the basis of surmises and conjectures. This observations of the court below is wrong that the will in question has not been proved according to the provision of the Evidence Act and even the scribe of the will was not produced in support of the execution of the will. That in view of the will executed by Buddhu Yadav only a limited interest was given to his widow Smt. Gujrati and right to transfer the property was not given to her and hence as the sale deed has been executed by the defendant No. 1 in violation of will hence the sale deed is null and void. He also argued that this finding of the courts below is also against law that the suit is barred by Section 331 of U.P. Act No. 1 of 1951. That a suit for cancellation of the sale deed is maintainable before the Civil Court only.
6. I have considered the entire material on record the submissions of learned Counsel for the appellants and substantial question of law framed by learned Counsel for the appellant.
7. It is a undisputed fact that Buddhu Yadav husband of defendant No. 1 was recorded Bhumidhar of the property in dispute and Gujrati defendant No. 1 is the widow of Buddhu Yadav. That Inder plaintiff belonged to the family of Buddhu Yadav but not directly. There was one Mangal common ancestor of the parties. Satai was the son of Mangal and he had three sons namely, Balak, Musai and Tahal. The son of Balak was Kali deen and thereafter Buddhu is the son of Kali deen. Musai was issue less and there are two sons of Tahal, namely, Mahesh and Ganesh. Inder and Basudeo are the sons of Mahesh and Inder was the plaintiff of suit No. 221 of 1987. Inder claimed that as during his life time Buddhu Yadav lived with him and plaintiff and his sons looked after the welfare of Buddhu hence it was the heart felt desire of Buddhu that after his death his property be delivered to the plaintiff Inder and his sons. And Due to this reason Buddhu Yadav had executed a will on 28.12.80 in favour of Inder and his sons and in the will limited interest was given to Gujrati widow only during her life time without any transferable rights. That the suit for cancellation of the sale deed executed by Smt. Gujrati defendant No. 1 in favour of defendant No. 2 on 6.11.1986 was instituted by Inder on the ground that Gujrati had no right and authority to execute the sale deed according to the terms and conditions of the will dated 28.12.80 and the sale deed is null and void as it is against the spirit of the will. Otherwise it has not been disputed that Gujrati is not the widow of Buddhu Yadav. And in view of Section 171 of U.P. Act No. 1 of 1951 the widow shall inherit the property of her husband after his death. Only on the strength of the will dated 28.12,80 it has been alleged that Buddhu Yadav delivered only a limited interest to his widow during her life time without any transferable rights and hence Gujrati was not entitled to execute the sale deed.
8. Seeing the facts and circumstances of the case there is a heavy burden lies on the plaintiff appellant to prove the will dated 28.12.80. It is also undisputed fact that according to the plaintiffs there were two attesting witnesses of the will. But both these attesting witnesses had died and hence they could not be examined. Even the scribe of the will was not produced and learned Counsel for the appellants argued that in view of Section 68 of the Evidence Act at least one witness must be produced for the proof of the will. When the witnesses were not alive hence they could not be produced even the scribe of the will could not be produced but the courts below committed illegality in drawing adverse inference for not producing the scribe as attesting witnesses.
9. It is a wrong presumption drawn by the court below that intentionally such witnesses have been shown as attesting witnesses of the will who had died. And that this observations of the court depends upon the surmises and conjectures. But if this observations of the court below will be omitted than the appellants shall have to establish that will was proved as provided in the Evidence Act. Learned Counsel for the appellants placed reliance on Section 63 of the Indian Succession Act. But this Section 63 provides that how the will is to be executed and how a will is to be proved have been provided in the Evidence Act. And in the present case in view of the requirement of Section 68 no attesting witness was produced on the pretext that they had died. I agree with the appellate court that the scribe could have been produced but even the scribe was not produced. Section 69 of the Evidence Act provides that if the attesting witnesses cannot be found then it must be proved that the attestation of one attesting witness is in handwriting and signatures of a person executing the document is in the hand writing of that person. Even Section 69 has also not been complied with.
10. Learned Counsel for the appellants argued that as attesting witnesses had died and scribe was not available hence for the proof of will other witnesses were produced. Inder plaintiff was also produced in order to prove the will. But the statement of Inder was not relied as he is a most interested witness and moreover, there is no mention in the will that Inder was also present at the time of the execution of the will. Even the hand writing Thumb impression of Buddhu Yadav could have been compared through an expert by some admitted thumb impression/signatures but it has also not been done. Even Raj Bali P.W.3 has also been examined for the proof of the will. Ram Chandra P.W.2 was also allegedly present at the time of the execution of the will but his statement was not believed by the courts below as there are contradictions in their statement. And in this context learned Counsel for the appellants argued that contradictions are not very material to discard the statement of the witness.
11. Even it is not necessary that all the attesting witnesses must be present at the same time to put their signatures. He also argued that due to lapse of time these contradictions were natural. But even then the statement of the witnesses must be seen in the circumstances of the case. Inder plaintiff was not the close relation of Buddhu but even then a will was produced allegedly executed by Buddhu in his favour to exclude the interest of Gujrati. Under these circumstances the genuineness of the will is of prime importance. That the trial court observed that the will appears to have been executed in suspicious circumstances and the plaintiff will have to show that the will was executed by Buddhu voluntarily being fully conscious about the consequence and attesting witness must also be produced. But not a single attesting witness has been produced. Under these circumstances every Tom and Harry can not be produced as witness to state that they were also present at the time of the execution of the will and this is not very material that why they have not put their signatures on the will or their presence have not been noted in the will. But the learned Counsel for the appellant wants that the court below must have accepted the evidence what ever was produced by the plaintiff appellant for the proof of the will and this evidence must have been accepted by closing the eyes without application of mind. I totally disagree with the assumption of learned Counsel for the appellant. A will is required to prove according to the provision of the Evidence Act and the person in whose favour the will was executed will have to show that this will was executed genuinely. And in the present circumstances no attesting witness has been produced and even the scribe was not produced and it has also not been stated that the scribe was also not alive.
12. Hence all the circumstances shows that the plaintiff appellant have not proved the will according to law and as the will has not been proved, hence no right and title shall accrue to Inder and his sons. I am not inclined to observe that whether the suit is barred Under Section 331 of U.P. Act No. 1 of 1951. In view of Several judgements of Hon'ble Apex Court a sale deed can only be cancelled ,adjudged null and void only by the civil court. Although if a document is a void then the revenue court can ignore and over look the sale deed. Hence it can not be said in accordance with law that the suit is barred Under Section 331 of the Act. But even then it is not going to make any difference. Learned Counsel for the appellants stated that the matter is sub-judice before the Revenue Authority. Hence matter pending before the Revenue Authority will continue to proceed.
13. Learned Counsel for the appellant cited 2005(XUI) SCC 278 Hazara Bradri and Ors. v. Likesh Datta Multani Meenakshiammal and Ors. v. Chandrasekaran and Anr. Rabindra Nath Mukherjee and Anr. v. Panchannan Banerjee and Ors. on the point that if the will is suspicious then how the matter is to be scrutinised.
14. It will be material to mention in the present case that the will is unregistered and the attesting witnesses and even the scribe of the will have not been examined to prove the will and it is settled law that the will will have to be proved by the person who is claiming rights on the basis of the will. Both the courts below on the basis of the circumstances arrived at the conclusion that the will is suspicious and the same has not been proved and the will is also not in favour of the close relation. And there was no justification to exclude his widow from inheriting the property in dispute. Under these circumstances on the basis of these judgements of Hon'ble Apex Court no benefit can be given to the appellants as the will cannot be said to be proved.
15. Learned Counsel for the appellant also cited Janardan Badrinaravan Patel and Anr. v. Sheth Ambalal Himatlal and Ors. and this judgement is also on the point of suspicious circumstances of the will. But in the present case there are numerous circumstances to show that the will is suspicious. Learned Counsel for the appellants further cited R. Saraswathy v. P. Bhavathy Ammal and Anr. According to this judgement of Kerla High Court the opinion of the expert as to identity of signature of testator on a will is not relevant in order to decide whether will has been validly executed. I am also of the opinion that the report of expert is not conclusive proof of the fact of genuineness or doubtful nature of the will. The court will decide independently on the basis of the other evidence and circumstances.
16. Learned Counsel for the appellants further cited AIR 1984 SC page 1202 Bhura and Ors. v. Kashiram and in view of this judgement of Hon'ble Apex Court the testator may deliver the interest to the widow till his life and thereafter the property shall devolve on the other beneficiary. But in all circumstances the appellant is required to prove the genuineness of the will and in the present case the will has not been proved according to requirement of law. Hence when will has not been proved then question does not arises regarding intention of the testator and on the basis of this judgement also no benefit can be given to the appellants. And regarding proof of the will learned Counsel also cited AIR 2004 SC page 438 Bhagat Ram and Anr. v. Suresh and Ors. 2007(102)RD 378 Kamla Prasad and Ors. v. Krishna Kant Pathak and Ors. Hon'ble Apex Court and in view of these judgements question of validity of the sale deed In respect of agricultural land can be entertained by the Revenue Court also. And I have also stated above that the proceedings pending before revenue court shall continue and revenue court may decide about the right and title of the parties.
17. Learned Counsel for the appellant also cited Mathew Oommen v. Suseela Mathew. But on the basis of this rulings of Apex Court the appellant is not entitled for any property. Moreover it is decided in the judgement that one attesting witness can also be the scribe. It has been held:
Regarding this objection we may note that there is no requirement in law that a scribe cannot be an attesting witness. The person concerned has appeared in the witness box as PW 1 and has clearly stated that he is a scribe of the will as well as he is an attesting witness of the Will....
18. But in the present case when the attesting witnesses could not be produced and they had died then scribe could have been produced as an attesting witness. But the appellant even did not produce the attesting witness. Hence I am of the opinion that on the basis of this ruling mentioned above, the appellant is not entitled for any benefit.
19. For the reasons mentioned above, I am of the opinion that there is concurrent findings of the courts below that the will in question was not proved by the plaintiff appellants in accordance with law and this is a finding of fact and cannot be interfered in the second appeal by this Court. And substantial question of law framed by the learned Counsel for the appellants cannot be said to be a substantial question of law so as to admit this second appeal for hearing. In my opinion there is no substantial question of law involved in this appeal.
20. In view of Section 100 CPC the appeal cannot be admitted and this appeal is liable to be dismissed.
21. The second appeal is dismissed at this stage summarily.