Chattisgarh High Court
Bisahu Ram vs Ashok Kumar Vaihnav(Died) Through Lrs on 14 June, 2022
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
First Appeal No. 91 of 2018
Judgment Reserved on 21/03/2022
Judgment Delivered on 14/06/2022
1. Bisahu Ram, aged 75 years, son of Pyarelal,
2. Parasmani aged 65 years, son of Pyarelal,
3. Jhadu Ram aged 80 years, son of Ram Prasad,
4. Tika Ram aged 75 years, son of Ram Prasad,
5. Rekha Ram aged 65 years, son of Goverdhan,
6. Moti Ram aged 63 years, son of Goverdhan
All are residents of village Siladehi, Tahsil Champa, District Janjgir
Champa (CG)
---------Appellants/Plaintiffs
VERSUS
1. Raj Kumar Rathore, aged about 61 years, son of late Shri Sukhru
Sao, village Kosmanda, Tehsil Champa, District Janjgir Champa
(CG)
2. Mouzer Beer Power Plant Siladehi through the Manager, Jajgir,
District Jajgir Champa (CG)
3. Dekson aged 32 years, son of Goverdhan Sahu, resident of Siladehi,
Tahsil Champa, District Janjgir Champa (CG)
4. State of Chhattisgarh through the Collector, Janjgir Champa (CG)
----------Respondents/Defendants
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For the Appellants : Mr. Somnath Verma, Advocate For the Respondent No. 1 : Mr. Rajkumar Pali, Advocate For the Respondent No.2 : Dr. Nirmal Shukla, Sr. Advocate with Mr. Shailendra Shukla and 2 Mr. Arjit Tiwari, Advocates For the Respondent No.3 : Mr. A.K. Mishra, Govt. Advocate
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Hon'ble Shri Justice Narendra Kumar Vyas CAV Judgment
1. This is plaintiff's first appeal against the judgment and decree passed by third Additional District Judge, Janjgir Champa passed in Civil Suit No. 58-A/2016, by which Civil Suit filed by the plaintiffs for declaration of title and permanent injunction has been rejected.
2. Brief facts necessary for disposal of this appeal are that the plaintiffs have filed the suit contending that the suit land situated at village Siladehi, total khasra numbers 14, area 4.53 acres is ancestral property of plaintiffs. (For the sake of brevity it be referred to as suit property). After separation of revenue record the suit land has been recorded in the name of Panchram. Genealogy tree has also been mentioned in the plaint. It is contended that Panchram and Guruwari Bai were issueless whereas Goverdhan and others are sons of Laxman, who was elder brother of Panchram. They have separated the revenue record which was imaginary and in fact there was no actual partition between Governdhan and Panchram. Governdhan and plaintiffs were in possession of the entire ancestral property. Since, Panchram and Guruwari Bai have become old, they are being looked after by the plaintiff. Later on, Panchram expired and Guruwari Bai became owner of the property and she also expired on 30.06.2010. After her death plaintiffs are exclusive owners of the suit property. It is further pleaded that after death of Guruwari Bai, defendant No. 1 has filed an application for mutation before the Tahsildar Bamhnidih on the basis of Will executed on 16.04.2010 in favour of Gayatri Parivar Siladehi. Tahsildar Bamnidih has passed the order in favour of defendant No.1 against which, the plaintiff No.1 has preferred an appeal before Sub Divisional Officer, Janjgir Champa which was rejected.
3Later on, the plaintiff No.1 has preferred a second appeal before Commissioner, Bilaspur which is pending. It is contended that despite pendency of the application for grant of stay, defendant No.1 has corrected the revenue record. Since, plaintiff is in possession of the suit property, therefore, defendant No.1 could not get the possession of the suit property. It is further contended that in village Siladehi neither any Gayatri Pariwar nor any institution in the name of Gayatri Pariwar was functioning and so called Will deed on the basis of which defendant No.1 is claiming title is void ab inito, therefore, defendant No.1 does not get any title over the suit property. The defendant No.1 after recording his name has raised dispute against the plaintiffs which has necessitated them to file the present suit.
3. It has been further contended that out of 14 khasras, five khasra measuring 2.73 acres has been acquired by defendant No.2 though the suit land or any part thereof has been acquired from plaintiff or Guruwari Bai. It has also been contended that the plaintiff has not received any information with regard to issuance of notification regarding acquisition. It is contended that neither any information has been given nor it has been displaced in a prominent place where it can be seen, as such mandatory provisions for acquisition have not been followed. It has also been stated in the plaint, that defendant No.2 has not acquired any possession of the suit property and has prayed that it be kindly declared that the plaintiff is title holder of the suit property and is also entitled to get permanent injunction. It has also been prayed that defendant No.1 has dispossessed the plaintiffs; therefore, he is also entitled to get mesne profit to the tune of Rs. 1,00,000/- for loss suffered by them.
4. The defendant No.1 has filed his written statement denying the allegation made in the plaint and contending that the suit property is not ancestral property but after death of Laxman the property has been recorded in the name of legal heirs of Laxman and father 4 of Kunjram as per the order of Revenue Court passed on 13.07.1977 in partition proceedings. The partition taken place between them was never subject matter of challenge as such partition dated 13.07.1977 is binding upon the plaintiff. According to that partition, property of Panchram has been recorded in the separate account No. 189 which was also never challenged, as such, it becomes final. It is not in dispute that Panchram and Guruwari Bai were issueless and contention raised by the plaintiff that its imaginary partition is not correct as actual partition has been done by the competent Court through its order dated 13.07.1977. It is contended that after partition the legal heirs of Laxman and Panchram were in possession of their share and Pancharam out of his shares has sold some of the property to (plaintiff No.1) Bisahuram, Jhaduram, Kashidas Vaishnav, Bisali Sahu, Ramcharan, Rajaram Satnami and after death of Panchram, his wife Guruwari Bai has sold properties to Gayatri Kumar, Dileram Sahu and Rajendra Tiwari which was never challenged by the plaintiff, as such partition taken place is affirmed. It is also denied that the plaintiff is in possession of the suit property. It has been further contended that Guruwari Bai has executed the register will in favour of the defendant No.1. In pursuance of execution of will, various persons earning their livelihood from the said property. It is contended that as per registered Will dated 16.04.2010, mutation proceedings were initiated before the Tahsildar Bamnihdih wherein the plaintiff has raised the objection which was rejected and thereafter Tahsildar Bamnihdih vide order dated 14.01.2011 has passed the order directing for mutation of name of defendant No.1. The plaintiff has filed an appeal before the Sub Divisional Officer, Revenue which was also rejected against that order he has preferred the second appeal before the Commissioner, Bilaspur which was also dismissed on 06.10.2015. It has also been contended that in village Siladehi, there is Gayatri Parivar working and its registered head office is at Haridwar. The 5 plaintiff No.2 Parasmani and plaintiff No. 4 Tikaram were members of Gayati Parivar and they have voluntary resigned from the Gayatri Parivar. It has been contended that defendant No.2 has acquired the said land by duly constituting land acquisition proceedings and award has been passed by directing the grant of compensation to defendant No.1, as such he is not entitled to get declaration of title and injunction and would pray for dismissal of the suit.
5. The defendants No. 2 to 4 have neither filed written statement nor participated in the proceedings, therefore, learned trial Court vide order sheet dated 12.08.2016 has proceeded against them.
6. On pleadings of the parties, learned trial Court has framed as many as five issues. The plaintiffs to substantiate their stand have examined Bisahuram (PW-1), Gangaram (PW-2), Bisahu (PW-3), Rakamlal (PW-4) and exhibited documents records of village Siladehi (Ex.P-1 and Ex.P-2).
7. The defendant no.1 to substantiate his case has examined Shobharam Vaishanv (DW-1), Ashok Kumar Vaishnav (DW-2), Saoukhilal Patel (DW-3), Ramkhilawan Tiwari (DW-4), Horilal Kalar (DW-5) and exhibited documents mutation application dated 08.10.2010 (ExD-1), Form No. XXI (Ex.D-2), Will (Ex.D-3), Award dated 06.07.2011 (Ex.D-4), Kistabandi Khatauni (Ex.D-5 to Ex.D-
10) Revenue order sheet (Ex.D-11 to Ex.D-16), Vakalatnama (Ex.D-17), Appeal (Ex.D-18), Award dated 30.11.2012 (Ex.D-19), sale deed (Ex.P-20 to Ex.D-24, List of office bearer (Ex.D-25 to Ex.D-26), Order dated 02.08.2011 (Ex.D-27), Minutes of meeting (Ex.D-28), letter dated 02.11.2015 (Ex.D-29), Information slip (Ex.D-30), Kistabandi Khatauni (Ex.D-31), Khasra (Ex.D-32), Sale deed (Ex.D-33 to Ex.D-36), Order dated 14.01.11 (Ex.D-37), Appeal (Ex.D-38), order dated 06.10.15 (Ex.D-39), order dated 06.10.2015 (Ex.D-40), Minutes of books (Ex.D-41).
8. Defendant witness Ramkhilawan Tiwari (DW-4) has stated that the documentation with regard to the will was done on 16.04.2010 6 before him and Ratiram Patel but he has nowhere said that the testator Guruwari Bai has put her signature or thumb impression before him at the time of execution of the will. The other witness namely Horilal Kalar (DW-5) has also reiterated the same contention and in the cross-examination this witness has admitted that he is not aware about execution of the Will by Guruwari Bai. He has also admitted that who has written the Will and who has signed the Will cannot be said by him. He has also admitted that he is not aware whether Guruwari Bai or any person has put the signature.
9. Learned trial Court after appreciating the evidence, material on record has dismissed the suit for declaration and grant of permanent injunction filed by the plaintiff by recording its finding that no suit has been filed to set aside the Will and has held that it is for the plaintiff to prove that the Will has not been executed in accordance with the law. Being aggrieved with the judgment and decree passed on 30.11.2017, the plaintiff has preferred First appeal under Section 96 CPC before this Court.
10. Learned counsel for the plaintiffs would submit that the burden lies on defendant No.1 to prove the will as he claims title on its basis whereas the evidence adduced by the defendant no.1 does not prove the will as per the provisions of section 63 of the Succession Act, Section 68 of the Indian Evidence Act and there are suspicious circumstances available, therefore, the finding recorded by the learned trial Court is erroneous, perverse and deserves to be set aside. He would further submit that since plaintiffs are the heirs of Laxman, who was brother of Panchram, they will inherent property of Guruwari Bai under Section 15(1)(b) and section 15(2)(b) of the Hindu Succession Act 1966. In support of his contention, he relied upon the judgment of Hon'ble Supreme Court in the case of Shivkumar v. Sharanabasappa reported in AIR 2020 SC 3102 para 11.
11. On the other hand, learned counsel for the defendant No.1 would 7 submit that it is well settled principle of law that the plaintiff has to prove his case on his own but in the present case, the plaintiffs have miserably failed to prove their case on the basis of evidence, material brought on record. He would further submit that the defendant No.1 witnesses have clearly proved the will and there is no suspicious circumstances available on record and would pray for dismissal of the appeal. In support of his contention, he relied upon the judgments reported in matter of Vishnu Shankar v. Girdharilal 2018 (3) MPLJ 201, Jhamri and others v. Satyanarayan Kenwat 2015(3) MPLJ 185, Ramesh Verma vs. Lajesh Saxena and another 2017(1) SCC 257 and Sanjeev Juneja vs. State and another AIR 2018 Delhi 79.
12. I have heard learned counsel for the parties, perused the records of lower Court with utmost satisfaction.
13. From the above stated factual matrix two questions have to be determined by this Court (i) whether the will has been proved as per the provisions of Section 68 of the Evidence Act and Section 63
(c) of the Indian Succession Act ? (ii) Whether the plaintiffs being legal heirs of Laxman, who was brother of Panchram are entitled to inherent property of Guruwari Bai as per section 15(1)(b) and section 1 5(2)(b) of the Hindu Succession Act, 1956 ?
14. For better understanding issue No. 1, it is expedient for this Court to extract the provisions of Section 68 of the Evidence Act and Section 63 (c) of the Indian Succession Act which are as under:-
Section 68 of the Evidence Act 1872 provides as under "68. Proof of execution of document required by law to be attested- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. Provided that it shall be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisons of the Indian Registration Act, 1908 8 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
Section 63 (c) of the Indian Succession Act, 1925- The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will,in the presence and by the direction of the testator, or has received from the testator a personal acknowldgment of his signature or mark, or the signature of such other person, and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witnesses be present at the same time, and no particular from of attestation shall be necessary.
15. Learned counsel for the plaintiffs have adumbrated on the following suspicious circumstances in the execution of the Will from evidence recorded during the trial and material placed on record. They can be succinctly stated as under;-
(I)Purchaser signature or thumb mark is not on the stamp paper.
(II) The will was produced before the sub registrar by Guruwari Bai at her dwelling house situated at village Siladihi at 7 PM. (III) At sheet No. 2 name and address of propounder are not written in the block caption.
(IV) On sheet No.2 correction cutting has not been endorsed by putting counter sign or thumb.
(V) Attesting witnesses of the will have not signed in execution, only name and address are written.
(VI) On sheet no.1 and 3 it has been written that propounder was hale and hearty but on sheet no. 2 it is written that 9 she is unhealthy and ill. These facts and circumstances create heavy cloud on the Will which the plaintiff has not cleared the doubts, as such it is suspicious circumstances of execution of will.
(VII) Scriber Ramesh Chandra and attesting witness Ratiram have not been examined.
(VIII) DW-1 Shobharam (defendant) does not state regarding execution and
registration of will (Ex.D-3). He states that Guruwari Bai was illiterate.
(IX) DW-4 Ram Khilawan Tiwari is attesting witness who deposed in affidavit under Order 18 Rule 4 CPC at paragraph 2 that on 16.4.2010 Guruwari Bai bequeathed suit land in presence of mine and Ratiram. Ramkhilawan Tiwari has stated that the documentation with regard to the will was done on 16.04.2010 before him and Ratiram Patel but he has nowhere said that the testator Guruwari Bai has put her signature or thumb impression before him at the time of execution of the will. This witness silent is about the health of the testator Guruwari Bai. (X) DW-2 Ashok Kumar does not state regarding execution and registration of will. He state in paragraph 3 and 4 that after death of Pancharam and Guruwari Bai, the plaintiffs have performed their ritual. He states that Guruwari Bai was illiterate.
(XI) DW-3 Shaukhilal does not know 10 regarding execution and registration of will and he is one of the beneficiaries of the land which is subject matter of the Will.
(XII) DW-5 Horilal is hearsay witness.
He does not know anything personally. The witness Horilal Kalar (DW-5) has also reiterated the same contention and in the cross-examination the witness has admitted that he is not aware about execution of the Will by Guruwari Bai. He has also admitted that who has written the Will and who has signed the Will cannot be said by him. He has also admitted that he is not aware whether Guruwari Bai or any person has put the signature on the Will.
(XIII) Date of the Will and date of death of the testator being too close throws a doubt on the sound disposing state of mind of the testator as the testatrix expired on 30.06.2010 and the Will has been executed on 16.04.2010.
(XIV) Ramkhilawan Tiwari (DW-4) is one of the beneficiaries of the Will as he has taken the land which is subject matter of Will and he is cultivating the land on crop share basis. Similarly, Horilal Kalar (DW-5) is also one of the beneficiaries of the Will.
16. On the other hand, learned counsel for the defendant No.1 would submit that the Will has been proved as per the provisions of law, attesting witnesses, no evidence has been brought on record to disbelieve the existence of the Will, as such finding recorded by the trial Court is neither perverse nor contrary to the record which warrants interference by this Court.
1117. Learned Senior Advocate for the defendant No.2 would submit that the lands which were acquired for the Mouzer Beer Power Plant, Siladehi, were challenged before learned single Judge, which was allowed, against which the appeal was preferred before the Division Bench of this Court where the writ appeal was allowed and order of the learned single Judge was set aside. Now, the matter is pending before the Hon'ble Supreme Court. The company has handedover the lands to the State Government, as such, now the land is with State Government in their pool.
18. From the above analysis of the evidence and considering the evidence of Ashok Kumar (DW-2), Ramkhilawan Tiwari (DW-4) and Horilal Kalar (DW-5)), they have nowhere stated that will has been written as per the direction of the testatrix and also considering the fact that the witnesses have nowhere stated in their evidence that the testatrix has put her signature on the will in their presence, therefore, doubtful circumstances establish with regard to existence of will.
19. In the present case, the trial Court has not given any finding with regard to the genuineness of the Will on the count that it was for the plaintiffs who have never challenged the existence of the Will and even after recording of the finding in paragraph 21 that the Will has not been signed before the witnesses and even there no ground has been taken to nullify the Will. Learned trial Court has further recorded a finding that the Will is a registered Will, therefore, as per section 74 (1)(3) is a public document and unless it is rebutted it is acceptable in the evidence, ignoring the provisions of section 74 of the Indian Evidence Act. As certified copy of Will is not a public document within the meaning of Section 74 of the Indian Evidence Act, the issue has come up for consideration before the High Court of Punjab and Haryana in the case of Sampat Singh v. Bhagwanti and Others reported in AIR 2010 (NOC) Punjab and Haryana wherein Punjab and Haryana High Court has held as under:-
8. The facts are not in dispute. The original copy 12 of the Will in dispute was not placed on record of the case and only a certified copy thereof was placed on record. Section 61 of the Evidence Act, provides that the contents of the document may be proved either by primary or by secondary evidence. The general principle is that if the original document exists and is available, it must be produced, however, if the original is lost/destroyed, secondary evidence is permissible. Section 65 of the Indian Evidence Act, 1872 envisages the situations where secondary evidence relating to a document may be permitted to be adduced. It is well settled that unless loss of a document as envisaged under Section 65 of the Indian Evidence Act is proved, secondary evidence of the same cannot be allowed to be adduced. Admittedly, in this case, at no stage, the appellant has sought permission of the Court to prove the Will in question by leading secondary evidence. Again, there is no dispute that certified copy of the Will is not a public document within the meaning of Section 74 of the Evidence Act and is not admissible per se in evidence. Thus, the certified copy produced on record of the case cannot be presumed to be primary document which could be adduced in evidence and the same could have been proved only while leading secondary evidence after taking permission of the Court and proving the loss, destruction etc. of the aforesaid document.
20. Madhya Pradesh High Court in case of Rambha Bai and Ors. v.
Nanibai and Ors in M.P. No. 5511/2019 decided on 10.07.2020 has held as under in paragraph 11.
11. The Division Bench of this Court in the case of Smt. Rekha Rana (supra) has held as under;- A sale deed (or any other deed of conveyance) when presented for registration under the Registration Act, is not retained or kept in any public office of a State after registration, but is returned to the person who presented such document for registration, on completion of the process of registration, An original registered document is not therefore a public record kept in a state of a private document, consequently a deed of sale or 13 other registered document will not fall under either of the two classes of documents described in Section 74, as ' public document'. Any document which is not a public document is a private document. We therefore, have no hesitation in holding that a registered sale deed (or any other registered document is not a public document but a private document. (I) Production and Marking of a certified copy as secondary evidence of a public document under Section 65(e0 need not be preceded by laying of any foundation for acceptance of secondary evidence. This is the position even in regard to certified copies of entries in Book I under Registration Act relation to a private document copied therein.
(ii) Production and marking of a certified copy as secondary evidence of a private document either a registered document like a sale deed or any unregistered document is permissible only after laying the foundation for acceptance of secondary evidence under Clause (a), (b) or
(c) of Section 65.
(iii) Production and marking of an original or certified copy of a document does not dispense with the need for proof of execution of the document. Execution has to be proved in a manner known to law (Section 67 and 68 and ensuing section in chapter V of Evidence Act).
12. Thus, in view of the aforesaid judgment, the "Will" being not a public document and is a private document, therefore, finding recorded by the trial Court that the Will is a public document is erroneous finding which deserves to be set aside by this Court and accordingly set aside.
21. Learned counsel for the appellants/plaintiffs has placed reliance in the matter of Shivkumar v. Sharanabasappa reported in 2021 SCC 277 paragraph 11 reproduced as below;-
11. As noticed, the basic point for determination in this case is as to whether the High Court was justified in taking a view contrary than that of the 14 Trial Court and in holding that the Will propounded by the plaintiffs is not the genuine Will of the deceased Sangappa. Determination of this point, obviously, revolves around the legal principles applicable to the making of a testamentary document like Will, its proof, and its acceptance by the Court.
11.1. The Will being a rather solemn document that comes into operation after the death of the testator, special provisions are made in the statutes for making of a Will and for its proof in a Court of law. Section 59 the Succession Act provides that every person of sound mind, not being a minor, may dispose of his property by Will. A Will or any portion of a Will, the making of which has been caused by fraud or coercion or by any such importunity that has taken away the free agency of the testator, is declared to be void under Section 61 the Succession Act; and further, Section 62 the Succession Act enables the maker of a Will to make or alter the same at any time when he is competent to dispose of his property by Will. Chapter III of Part IV of the Succession Act contains the provisions for execution of unprivileged Wills (as distinguished from privileged Wills provided for in Chapter IV).
22. The Hon'ble Supreme Court in the case Kavita Kanwar v. Mrs. Pamela Mehta 2020 SCC online SC 464 has held as under :-
29.2. In the given set-up, a basic question immediately crops up as to what could be the reason for the testatrix being desirous of providing unequal distribution of her assets by giving major share to the appellant in preference to her other two children. The appellant has suggested that the parents had special affection towards her. Even if this suggestion is taken on its face value, it is difficult to assume that the alleged special affection towards one child should necessarily correspond to repugnance towards the other children by the same mother. Even if the 15 parents had special liking and affection towards the appellant, as could be argued with reference to the gift made by the father in her favour of the ground floor of the property in question, it would be too far stretched and unnatural to assume that by the reason of such special affection towards appellant, the mother drifted far away from the other children, including the widowed daughter who was residing on the upper floor of the same house and who was taking her care. In the ordinary and natural course, a person could be expected to be more inclined towards the child taking his/her care; and it would be too unrealistic to assume that special love and affection towards one, maybe blue-eyed, child would also result in a person leaving the serving and needy child in lurch. As noticed, an unfair disposition of property or an unjust exclusion of the legal heirs, particularly the dependants, is regarded as a suspicious circumstance. The appellant has failed to assign even a wee bit reason for which the testatrix would have thought it proper to leave her widowed daughter in the heap of uncertainty as emanating from the Will in question. Equally, the suggestion about want of thickness of relations between the testatrix and her son (respondent No.2) is not supported by the evidence on record. The facts about the testatrix sending good wishes on birthday to her son and joining family functions with him, even if not establishing a very great bond between the mother and her son, they at least belie the suggestion about any strain in their relations. Be that as it may, even if the matter relating to the son of testatrix is not expanded further, it remains inexplicable as to why the testatrix would not have been interested in making adequate and concrete provision for the purpose of her widowed daughter (respondent No.1).
29.3. The aforesaid factor of unexplained unequal distribution of the property is confounded by two major factors related with making of the Will in question: one, the active role played by the appellant in the process;
and second, the virtual exclusion of the other 16 children of testatrix in the process. As noticed, an active or leading part in making of the Will by the beneficiary thereunder has always been regarded as a circumstance giving rise to suspicion but, like any other circumstance, it could well be explained by the propounder and/or beneficiary. In the present case, it is not in dispute that out of the three children of testatrix, the appellant alone was present at the time of execution of the Will in question on 20.05.2003. As noticed, at the relevant point of time, the appellant was admittedly living away and in a different locality for about 20-22 years, whereas testatrix was residing at the ground floor of the building and the respondent No.1 was at the first floor. Even if we leave aside the case of the respondent No.2 who was living in Shimla, there was no reason that in the normal and ordinary course, the testatrix would not have included the respondent No.1 in execution of the Will in question, particularly when she was purportedly making adequate arrangements towards the welfare of respondent No.1. In other words, if the Will in question was being made without causing any prejudice to the respondent No.1, there was no reason to keep her away from this 16process. Admittedly, the Will in question was not divulged for about three years. Therefore, the added feature surrounding the execution of the Will had been of unexplained exclusion of the respondent No.1 from the process.
23. Hon'ble Supreme Court in the case of Murthy vs C. Saradambal decided on 10 December, 2021 in Civil Appeal No. 4270 of 2010 has held as under:-
(a) The date of the will (Ex-P1) is 04th January, 1978. The testator E. Srinivasa Pillai died on 19th January, 1978, within a period of fifteen days from the date of execution of the will. Even on reading of the will, it is noted that the testator himself has stated that he was sick and getting weak even then he is stated to have "written" the will himself which is not believable. It has been deposed by PW2, one of the attestors of the will, that the will could not be registered as the testator was unwell 17 and in fact, he was bedridden. It has also come in evidence that the testator had suffered a paralytic stroke which had affected his speech, mobility of his right arm and right leg. He was bedridden for a period of ten months prior to his death. Taking the aforesaid two circumstances into consideration, a doubt is created as to whether the testator was in a sound and disposing state of mind at the time of making of the testament which was fifteen days prior to his death.
(b) No evidence of the doctor who was treating the testator has been placed on record so as to prove that the testator was in a sound and disposing state at the time of the execution of the will.
(c) The fact that the testator died within a period of fifteen days from the date of the execution of the will, casts a doubt on the thinking capacity and the physical and mental faculties of the testator. The said suspicion in the mind of the Court has not been removed by the propounder of the will i.e. first plaintiff by producing any contra medical evidence or the evidence of the doctor who was treating the testator prior to his death.
(d) In this context, it would be useful to place reliance on Section 63 of the Indian Succession Act, 1925 which categorically states that the testator has to sign on the will and the signature of the testator must be such that it would "intend" thereby to give effect to the writing of a will. Hence, the genuineness of the will must be proved by proving the intention of the testator to make the testament and for that, all steps which are required to be taken for making a valid testament must be proved by placing concrete evidence before the Court. In the instant case, there is no evidence as to whom the testator gave instructions to, to write the will. The scribe has also not been examined. It is also not known as to whether the assistance of an advocate or any other trustworthy person was taken by the testator in order to make the testament and bequeath the property to only the son of the testator.
(e) Apart from that, Section 63(c) of the Indian Succession Act, 1925, firstly states that the will 18 has to be attested by two or more witnesses/attestators, each of whom should have seen the testator sign on the will in his presence, or has received from the testator, a personal acknowledgment of his signature on the will. Secondly, each of the witnesses shall sign on the will in the presence of the testator but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation is necessary.
The aforesaid two mandatory requirements have to be complied with for a testament to be valid from the point of view of its execution. In the instant case, there are two attestors namely, PW2-Varadan and Dakshinmurthy and the latter had died. The evidence on record has to be as per Section 68 of the Indian Evidence Act, 1872 which deals with proof of documents which mandate attestation. In order to prove the execution of the document such as a testament, at least one of the attesting witnesses who had attested the same must be called to give evidence for the purpose of proof of its execution. Since one of the attestors, namely, Dakshinmurthy had died, PW2, Varadan had given his evidence as one of the attestors of the will. However, the deposition of PW2 is such that it is fatal to the case of the plaintiffs.
24. In light of the aforesaid discussion and considering the law on the subject, it is crystal clear that the validity of Will (Ex.D-3) is not proved in accordance with the provisions of the law and suspicious circumstances are available on record which have not been cleared by the defendant by placing material on record, therefore, judgment and decree so far as holding that the plaintiff is not entitled to get declaration of the suit land area 4.53 acres on the strength of Will deserves to be set aside. Accordingly, it is set aside.
25. For deciding question No. 2, it is expedient for this Court to extract provisions of Section 15 of Hindu Succession Act, 1956. General rules of succession in the case of female Hindus.--
(1) The property of a female Hindu dying intestate 19 shall devolve according to the rules set out in section 16,--
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
(b)secondly, upon the heirs of the husband;
(c)thirdly, upon the mother and father;
(d)fourthly, upon the heirs of the father; and
(e)lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub- section (1),--(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre- deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre- deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.
26. Learned trial Court without appreciating the provisions of law with regard to Will has held that the Will Ex.D-3 to be legal, is erroneous finding of fact and law. Accordingly, judgment and decree passed by the trial Court deserves to be and is hereby set aside. The defendant No.1 on the basis of the Will, which has been declared not proved by this Court as discussed in foregoing paragraphs has mutated his name in the revenue record of the suit property which 20 is subject matter of the Will. As such, all the consequential benefit accrued in favour of the defendant No.1 on account of Will (Ex.D-3) is also set aside. Now coming to the second question as framed by this Court, it is quite clear that the plaintiffs are sons of deceased Laxman, who died issueless as such after death of his wife Guruwari Bai, the property will be inherited by the legal heirs of Laxman i.e. plaintiffs as per provisions of Section 15 of the Hindu Succession Act 1956.
27. Resultantly, the appeal is allowed and the judgment and decree passed by the learned trial Court on 30.11.2017 is set aside.
28. Decree be drawn accordingly.
29. No order as to the cost.
Sd/-
(Narendra Kumar Vyas) Judge Santosh