Chattisgarh High Court
Kunjram Patel vs Ratna Bai Patel on 5 April, 2022
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Second Appeal No. 199 of 2011
Judgment Reserved on 04.02.2022
Judgment Delivered on 05.04.2022
1. Kunjram Patel S/o Shri Kapileshwar Patel Aged About 49 Years R/o
Village Kurubhantha, Post Naharpali, Police Station And Tahsil
Kharsiya, District Raigarh, Chhattisgarh.
2. Hetram Patel S/o Shri Kepileshwar Patel Aged About 47 Years R/o
Village Kurubhantha, Post Naharpali, Police Station And Tahsil
Kharsiya, District Raigarh, Chhattisgarh.
3. Setram Patel S/o Shri Kapileshwar Patel Aged About 45 Years R/o
Village Kurubhantha, Post Naharpali, Police Station And Tahsil
Kharsiya, District Raigarh, Chhattisgarh.
4. Panchram Patel S/o Shri Kapileshwar Patel Aged About 43 Years
R/o Village Kurubhantha, Post Naharpali, Police Station And Tahsil
Kharsiya, District Raigarh, Chhattisgarh.
5. Pilababu Patel S/o Shri Kapileshwar Patel Aged About 37 Years R/o
Village Kurubhantha, Post Naharpali, Police Station And Tahsil
Kharsiya, District Raigarh, Chhattisgarh.
---- Appellants
Versus
1. Ratna Bai Patel W/o Shri Gajraj Patel Aged About 35 Years R/o
Village Kurubhantha, Post Naharpali, Police Station And Tahsil
Kharsiya, District Raigarh, Chhattisgarh.
2. Neela Bai Patel W/o Shri Chhabilal Patel Aged About 35 Years R/o
Village Kurubhantha, Post Naharpali, Police Station And Tahsil
Kharsiya, District Raigarh, Chhattisgarh.
3. Tularam Patel (Minor) S/o Shri Gajraj Patel Aged About 15 Years
Through His Mother Ratna Bai Patel W/o Shri Gajraj Patel,
Occupation Agriculture, R/o Village Kurubhantha, Post Naharpali,
Police Station And Tahsil Kharsiya, District Raigarh, Chhattisgarh.
4. Nandkumar Patel (Minor) S/o Shri Chhabiram Patel Aged About 14
Years Through His Mother Neela Bai Patel W/o Shri Chhabilal Patel,
Occupation Agriculture, R/o Village Kurubhantha, Post Naharpali,
Police Station And Tahsil Kharsiya, District Raigarh, Chhattisgarh.
5. Gajraj Patel S/o Shri Kapileshwar Patel Aged About 55 Years R/o
Village Kurubhantha, Post Naharpali, Police Station And Tahsil
Kharsiya, District Raigarh, Chhattisgarh.
2
6. Chhabilal Patel S/o Shri Kapileshwar Patel Aged About 39 Years R/o
Village Kurubhantha, Post Naharpali, Police Station And Tahsil
Kharsiya, District Raigarh, Chhattisgarh.
7. The State Of Chhattisgarh Through The Collector, District Raigarh,
Chhattisgarh.
---- Respondents
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For Appellants : Mr. Roop Naik, Advocate For Respondents No.1 to 4 : Mr. Hari Agrawal, Advocate For the State : Mr. Sanjeev Kumar Agrawal, Panel Lawyer
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Hon'ble Shri Justice Narendra Kumar Vyas CAV Judgment
1. With the consent of learned counsel for both the parties, this appeal is heard finally.
2. The appellants/defendants No. 1 to 5 have filed the Second Appeal under Section 100 of the C.P.C. challenging the judgment and decree dated 11.03.2011 passed by the learned District Judge, Raigarh District - Raigarh in Civil Appeal No. 22-A/2009, by which learned District Judge, Raigarh has allowed the appeal reversing the judgment and decree dated 15.09.2009 passed by the Civil Judge Class -2, Kharsiya, District - Raigarh in Civil Suit No. 114-A/2009 by which learned Civil Judge Class-2 has dismissed the suit.
3. The appeal was admitted on 23.02.2021 on the following substantial question of law :-
(I) Whether the First Appellate Court is justified in holding that the plaintiffs have proved the title on the basis of will dated 05.05.2020 (Ex.P-1) executed by Kapileshwar by recording a finding perverse to the record ?
(ii) Whether the First Appellate Court is justified in decreeing the suit of the plaintiffs without reversing the finding of the res judicata recorded by the trial Court ?
4. For the sake of convenience, the parties shall be referred to in terms of their status in Civil Suit No. 114 A/2009 which was filed for declaration of title.
5. The plaint averments, in brief, are that plaintiffs have filed civil suit 3 before the Civil Judge, Class II, Kharsiya, District - Raigarh on 22.04.2008 for declaration that the suit properties mentioned in the schedules annexed with the plaint has been purchased by deceased Kapileshwar Patel in his lifetime on 21.02.1991 from the self income and the defendants have no title over the suit property. Defendants No. 1 to 5 have no affection and cordial relation with their father Kapileshwar. As such, defendants have not taken care of him. This was felt badly by Kapileshwar and he used to discuss this fact with defendants No. 6 and 7 who are also his sons. The brothers also had no cordial relation with each other and they are living separately. Deceased Kapileshwar had executed a will on 05.05.2000 and in pursuance of said will the property has been given in favour of plaintiffs. Kapileshwar expired on 27.02.2008. The defendant No. 9 who is the State of Chhattisgarh by its' subordinate officers in illegal manner recorded names of defendants No. 1 to 5 in the suit property along with defendants No. 6 and 7 after death of Kapileshwar. On the above factual matrix the plaintiffs have prayed that it may kindly be declared that plaintiffs have title over the suit property on the basis of will.
6. Defendants No. 1 to 5 filed written statement denying the allegations contending that plaintiff No. 1 is wife of defendant No. 6 and plaintiff No. 3 is son, plaintiff No. 2 is wife of defendant No. 7 and plaintiff No. 4 is their son. Natural guardian of plaintiff No. 3 is defendant No. 6 and natural guardian of plaintiff No. 4 is defendant No. 7. It has been specifically denied that deceased Kapileshwar from his sole income has purchased the property on 21.02.1991. It has also been denied that defendant No. 1 to 5 are in possession of the suit property. In fact, the suit property and other properties have been purchased from the income of ancestral property by Kapileshwar. As such, defendants No. 1 to 7 have also right and share on the suit property. It has also been stated that the defendants along with their father Kapileshwar have 1/8th share. It is further contended that in pursuance of the judgment and decree passed by the Civil Court, Tahsildar Kharsiya in revenue case decided on 28.09.2007 has done the 4 partition and recorded name of defendants No. 1 to 7. The plaintiffs have no right over the suit property. Therefore, though they aware of the partition, have not raised any objection. It has also been contended that suit property mentioned in Schedule 1 belongs to defendant No. 1, Schedule 2 belongs to defendant No. 2, suit property mentioned in Schedule 3 belongs to defendant No. 3, suit property mentioned in Schedule 4 belongs to defendant No. 4, suit property mentioned in Schedule 5 belongs to defendant No. 5, suit property mentioned in Schedule 6 belongs to defendant No. 6 and similarly suit property mentioned in Schedule 7 belongs to defendant No. 7, suit property mentioned in Schedule 8 belongs to Kapileshwar. After death of Kapileshwar, his legal heirs are entitled for the schedule 8 property. It is emphatically denied that defendants No. 1 to 5 have no affection or attachment with their father. It is specifically denied that there was will dated 05.05.2000 of deceased Kapileshwar wherein he has mentioned the reasons, in fact neither will has been executed in favour of the plaintiffs nor they have taken care of the deceased Kapileshwar. The will is forged one and has been prepared fraudulently. It has also been contended that principle of res-judicata is applicable in the present facts of the case, as such the suit is not maintainable.
7. On the pleadings of the parties, learned trial Court has framed as many as 5 issues. The relevant issues necessary for the determination by this Court are issues No. 1 and 3, which are extracted below:-
1. Whether, the plaintiffs have acquired title over the suit land on the basis of registered will dated 05.05.2000?
3. Whether, the suit land is not maintainable in view of principle of res-judicata due to judgment and decree in civil suit No. 99A/99 (Kunjram vs Kapileshwar)?
8. Defendant No. 6 has filed separate written statement wherein he has admitted the case of the plaintiffs.
9. The plaintiffs to substantiate their case have examined Ratna Bai as PW/1, Leelabai as PW/2, Ahiwaran as PW/3 and exhibited documents dated 05.05.2000 as Ex.P/1, Sale deed executed by Govind Ram in favour of Kapileshwar dated 21.02.1991 as 5 Ex.P/2. The PW1 Ratna Bai has stated in his examination in chief that due to care taken by the plaintiffs deceased Kapileshwar has executed the will in favour of plaintiffs on 05.05.2000 and in her cross-examinations she has stated that she is not aware that any civil suit was filed before the Civil Judge. She has also denied that she is not aware that other properties and suit property are joint hindu family property. She has admitted that her mother-in-law is residing with Peelababu and she denied that his father-in-law resides with Peelababu. She has admitted about proceedings in the revenue court of Tahsildar, Kharsiya by which partition proceedings were initiated and an appeal has also been preferred against that order. She has admitted that in the Court of Tahsildar partition was ordered in view of order passed by the Civil Judge, Class II. She has admitted that 15 days before the death of her father in law he was unable to move. She has admitted that Leelabai is her sister in law and her husband's name is Chhabilal Patel. She admits that she has not filed suit against Chhabilal. She has admitted Leelabai resides separately. She has admitted that she is not aware that Ex.P/1 has been signed by Kapileshwar. She is not aware that when the will was executed. She has admitted that her father in law was heart and healthy eight year prior to death and was doing agricultural works. She has admitted that all the sons were not looking after her father in law. PW/2 Leelabai has also reiterated the same stand and in the cross examination she has stated that she is not aware whether any court case has been initiated or not. She has admitted that her father in law was heart and healthy nine years prior to death and was doing agricultural works.
10. PW3 who was the attesting witness of the will was examined wherein he has admitted that will was executed in front of him and he was the witness. He has admitted that Kapileshwar was healthy and was able to move. Kepileshwar had told him that he has purchased the property and asked him to sign the documents. He has admitted that he is not educated but knows to put sign. He has admitted that Ex.P1 was directly typed and no rough work was done. He has admitted that before he reaching 6 the Registrar Office the witness and the Registrar had already signed the will and thereafter he has put his signature. He has denied that Kapileshwar has put his signature before him. Kapileshwar had put his signature at the typing spot just after typing of the will. He is not aware if court proceedings have been initiated.
11. The Defendant has examined Kunjram DW/1, he has stated his father has purchased the property from Govindram through income generated from ancestral property and with regard to it a civil suit was also instituted wherein the suit property has been held to be ancestral property. He has further stated that after death of his father, his mother is in possession of the suit land and doing agricultural operation peacefully. He has stated that the partition between their brothers have already been taken place and they are living separately. His mother and father were residing with Kunjram, Hetram, Setram, Panchram and Peelababu and after death of his father his mother is residing with his brothers. He has stated that his father was not residing with him, therefore, he was not aware that will has been executed. He has stated that the suit property is a parental property and with regard to it civil suit No. 99A/99 was filed according to which parties are entitled to 1/8th share of the property. Plaintiffs and defendants No. 6 and 7 are aware of the judgment and decree. Defendants have exhibited document Ex.D/1 certified copy of the judgment and decree passed in civil suit dated 08.01.2002. The witness was cross-examined wherein he has admitted that Kapileshwar has purchased the property from Govind Ram and further clarifies that all the family members have jointly purchased the property in the name of his father. He has denied that any will has been executed and also denied that his father has visited to Office of Dy. Registrar for registration of the will. He denies that they are not looking after their parents. He admitted that after death of his father all the five brothers are living along with his mother and two brothers are living separately. He admitted that all the brothers are taking meals with their families separately. He has admitted there was dispute between Gajraj and Chhabilal.
7His mother Bundkunwar wife of Kapileshwar examined as DW/2 wherein she has admitted that his husband had purchased the property from Govindram. She has admitted that her husband during his lifetime has never written any will. Till his lifetime he was the title holder of the suit property, thereafter, it will be distributed among five sons. She was cross-examined wherein she reiterated that the property was purchased jointly. She is not aware that her husband had gone to Registrar Office for registering the will. She denied that Ratnabai and Leelabai were looking after her husband. They have not given even single glass of water to her husband.
12. Learned trial court considering the evidence, material on record has dismissed the suit filed by the plaintiffs holding that doubts have been created over the execution of will as witness Ahibaran has admitted in his cross examination that Kapileshwar has told him that he has purchased some property and for its documentation he has come and as witness he was asked to put his signature, therefore, he put his signature , which creates doubt over the authenticity of the will. It has also recorded that the witness has admitted that before reaching to the Office of the Registrar, executant, witness and the Registrar had already put their signature, he has signed later. This creates doubts over the execution of the will. The learned trial Court has also recorded that in the will it has been specifically mentioned that Kapileshwar has become old and unable to move whereas this witness in his cross-examination has admitted that Kapileshwar was heart and healthy and he was able to move and stated that at the time of registration of document Kapileshwar himself gone to the Registrar Office which itself creates doubts over the execution of will and recorded the finding that the will has not been proved by any cogent evidence, therefore the will is doubtful. In view of the judgment and decree in Civil Suit No. 99- A/99 all the seven brothers are title holder of the suit property to the tune of 1/8th share and according to the judgment the partition has already been done by the revenue officer on 28.09.2007 and the names of title holders have already been 8 recorded. Plaintiff's witness Ratnabai has also admitted that partition has already been done by the Tahsildar, Kharsia. The defendants witness Kunjram in evidence has adduced that they are in peaceful possession of the partitioned property which remain unrebutted. Therefore, it is quite vivid that partition has already been taken place. Accordingly on both the counts the suit was dismissed.
13. This order was assailed before the first appellate Court under Section 96 of the CPC by the plaintiffs. Learned first appellate Court reversed the findings and held that the will has been executed properly and also held that the principle of res-judicata is applicable which cannot adversely affect the right of the will and set aside the judgment and decree passed by the learned trial Court and granted that plaintiffs are entitled to get share of property mentioned in the schedules of the plaint as well as Schedule 8 of the Courter claim filed by defendants as per the will dated 05.05.2000. This order is being challenged by the defendants by filing second appeal before this Court.
14. While admitting the appeal this Court has framed aforestated substantial question of law on 23.02.2021.
15. Learned counsel for the defendants would submit that learned trial Court has not appreciated the evidence, materials on record and law on correct perspective. He would submit that the learned first appellate Court has committed illegality in holding that the will has been properly proved by ignoring the provisions of Section 68 of the Evidence Act as well as Section 63 (c) of the Indian Succession Act. He would further submit that from bare perusal of statement of PW3 it is quite vivid that he has not seen the signature of testator at the time of execution of will and before his reaching to the office the signature of the other witnesses and the Registrar had already been done. Therefore, it is clear case of doubt over the execution of will. It has also been stated that the plaintiffs have failed to examine other witnesses Ram Kumar and also failed to produce evidence when he died. He would further submit that the will executed on 05.05.2000 has not been proved in accordance with Section 63 of the Indian Succession Act and 9 Section 68 of the Evidence Act. He would submit that the trial Court has rightly rejected the suit which has been reversed on perverse findings. He would further submit that the trial Court has rightly held that the present suit is barred by principle of res- judicata. Therefore, the finding that the will has been executed in accordance with law, is incorrect, perverse and deserves to be set aside. In support of his submission he would rely upon the judgment passed by the Hon'ble Supreme Court in Civil Appeal 4270/2010 passed on 10.12.2021 in case of Murthy and Others vs. C. Saradambal and Others. He would further rely upon the judgment passed by the Hon'ble Surpreme Court in case of Lalityaben Jayanti Lal Popat vs. Praganaben Jamnadas Kataria 1 . He would also refer to judgment of Hon'ble High Court of Madhya Pradesh in case of Thansingh vs Majboot Singh 2.
16. On the other hand, learned counsel for the plaintiffs would submit that the judgment and decree passed by the learned first appellate Court is legal, justified and not liable to be interfered by this Court. The will has been proved in accordance with law and the second appeal is liable to be dismissed by this Court. In support of his submissions he would refer to judgment of the Hon'ble Surpreme Court in case of Raj Kumari and Others vs. Surinder Pal Sharma 3. He would submit that the execution of will and registration of will are two different things and law does not provide that a will is to be compulsorily registered. He would further submit that from bare perusal of Ex.P1 it is clear that testator Kapileshwar and attesting witness Ahibaran, PW3 have put their signature in two different places and from set of signatures it is quite clear that first set of signatures were made at the time of execution of will and second signature at time of registration of will. Therefore, it can be safely held from the testimony of PW/3 that will has been seen by the testator at the time of putting his signature on the will. He would rely upon the judgment of Hon'ble Madras High in case of Senthil Kumar vs. Dhandapani and Ors. 4 He would further submit that the will is 1 2008 (15) SCC 365 2 2010(3) MPLJ 379 3 2019 SCC Online SC 1747 4 2004 SCC Online Mad 469 10 not supported by any suspicious circumstance and in support of his contention he would refer to the judgment of Hon'ble Supreme Court in case of Bharpur Singh vs. Shamsher Singh 5 and in case of Murthy (supra). The will was genuine will as the testator died after eight years of date of the execution of will and beneficiaries are not receiving any prominent part. He would further submit that condition of testator was good as he of his own reached to Tahsil office for drafting of will. It has also been stated that no objection has been raised on testator's signature on will, there was proper identification for the property. He would submit that exclusion of class-I legal heirs does not vitiate the will because a Court case with regard to the property in question was going on between the testator and his seven sons and during this time the testator was residing separately in the house of the beneficiaries, as such, it does not raise any legitimate suspicion about exclusion of Class-I legal heirs from the will and in support of his contention he would refer to judgment of Hon'ble Supreme Court in case of Leela Rajagopal and Others vs. Kamala Menon Cocharan and Others 6. He would further submit that the initial burden of the person is to prove genuineness of the will and the plaintiffs have successfully proved the genuineness of the will, therefore, the burden shifts upon the defendants to rebut the same, which they failed to do, therefore, the findings recorded by the learned first appellate Court is just and proper and do not require any interference by this Court. With regard to substantial question of law the learned first appellate Court has rightly given its findings that though the principle of res-judicata is applicable but the will will supersede. Thus, both the questions of law deserve to be answered in negative against the appellants/defendants and in favour of the respondents/plaintiffs and the second appeal deserves to be dismissed.
17. I have heard learned counsel for the parties, perused the document with utmost satisfaction.
18. From the above stated factual matrix two issues have to be determined by this Court (i) whether the will has been proved as 5 (2009) 3 SCC 687 6 (2014) 15 SCC 570 11 per the provisions of Section 68 of the Evidence Act and Section 63 (c) of the Indian Succession Act. (ii) Whether the present suit is barred by principle of res judicata and not tenable.
19. 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 (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.
20. The relevant portion of the Will dated 05.05.2000 is extracted below;-
olh;rukek मनकके मम कपपिलकेश्वर आ० ररामचरण पिटकेल जरापति अघररयरा उम्र 80 वरर सरापकन ककररभराभांठरा पि०ह०नभां० 14 तिहससील खरससयरा सजलरा ररायगढ़ (म०प्र०) करा पनवराससी हह भां । मम बहह ति हसी 12 सयरानरा हहो चककरा हह भां । असधिक चल पफिर नहहीं सकतिरा हह भां । वतिर मरान मम मम कहोई भसी कराम नहहीं कर सकतिरा हह भां ।
मकेरके नराम पिर गराम ककररभराभांठरा पि०ह०नभां० 14 तिहससील खरससयरा मम भभूपम स्वरामसी हक ककी जमसीन सस्स्थिति हहै । मकेरके 7 पिकत्र हहै । जहो अलग-अलग रहतिके हह ए कमरातिके खरातिके आ रहके हहै । भराईययों कके बसीच आपिससी झगडरा हहो जरानके कके करारण सभसी अलग-अलग रहतिके हम । वतिर मरान मम मम रत्नराबराई पिपति गजरराज पिटकेल, नसीलराबराई पिपति छबसीलराल पिटकेल नरा० बरा० तिकलरारराम पपितिरा गजरराज एवभां नरा० बरा० नन्दककमरार पपितिरा छबसीलराल पिटकेल पनवराससी गराम ककररभराभांठरा तिहससील खरससयरा सजलरा ररायगढ़ कके पनवराससययों कके पिरास पनवरास करतिके आ रहरा हह भां । तिस्थिरा मकेरके सकेवरा सत्करार एवभां भरण पिहोरण इन्हहीं लहोगयों कके दराररा हहोतिरा चलरा आ रहरा हहै । इनकके सकेवरा सत्करार सके मम अपति प्रसन्न हह भां , और मकझके पिभूररा भरहोसरा हहै पक भपवष्य मम भसी मकेररा सकेवरा सत्करार हहोगरा । सजससके मम प्रसन्न हहोकर रत्नराबराई पिपति गजरराज, नसीलराबराई पिपति छबसीलराल पिटकेल, नरा० बरा० तिकलरारराम पपितिरा गजरराज एवभां नरा० बरा० नन्दककमरार पपितिरा छबसीलराल पिटकेल पनवराससी सरापकन ककररभराभांठरा कके पनवराससययों कहो अपिनरा वससी पनयकक्त कर असधिकरार दकेतिरा हह भां पक वके मकेरके ममृत्यकपिरराभांन्ति मकेररा दराह सभांस्करार एवभां पहन्द भू रसीपति ररवराज कके मकतिरापबक पक्रियरा कमर करमगके । इसकके पिश्चरातित् मकेररा जहो भसी चल एवभां अचल सम्पिपति हहै उसकरा एक मरात्र स्वरामसी मम अपिनके जसीतिके जसी अपिनसी चल एवभां अचल सम्पिसत्ति करा स्वयभां स्वरामसी रहह भांगरा । ममृत्यक पिश्चरातित् मकेरके वससी रत्नराबराई पिपति गजरराज, नसीलराबराई पिपति छबसीलराल, नरा० बरा० तिकलरारराम पपितिरा गजरराज एवभां नरा० बरा० नन्दककमरार पपितिरा छबसीलराल पिटकेल कके हहो जरावकेगरा ।
इस वससीयतिनरामरा कके पिहलके मम कहोई वससीयति नहहीं पकयरा हह भां यह वससीयतिनरामरा मकेररा पिहलसी और अभांपतिम वससीयति हहै । अगर कहोई पिकेश करतिरा हहै तिहो उसके असत्य मरानरा जरावके । मकेरके वससी मकेरके ममृत्यकपिररान्ति इस वससीयतिनरामरा सके मकेरके जहो भसी चल एवभां अचल सम्पिसत्ति हहै उसके भभू अपभलकेख मम अपिनके नराम सके कररा सकतिके हम ।
यह वससीयतिनरामरा मम अपिनसी रराजसी खकशसी सके पबनरा पकससी दबराव कके स्वस्थ्यपचति मम रहकर सलखराकर पिढ़राकर सकन समझकर स्वसीकरार कर अपिनरा हस्तिराक्षर कर पदयरा पक वक्त पिर कराम आवके।"
21. Learned counsel for the defendants has adumbrated on the following suspicious circumstances in the execution of the Will from evidence recorded during the trial and materials placed on record. They can be succinctly stated as under;-
(I) There was a Civil Suit No. 99/1999 filed before the Civil Judge Class-II, Raigarh between defendants No. 1 to 4 and the testator-Kapileshwar wherein the suit decided on 08.01.2002, the plaintiff have declared jointly title holder of 5/8 th part of the property measuring 6.678. Each of the plaintiff were entitled to 1/8th part of the share and this suit 13 property is also included in the property which has been mentioned in the Will executed by Kapileshwar on 05.05.2000. The deceased Kapileshar has never disclosed about execution of will by him in the suit decided on 08.01.2002.
(ii) In the will, the testator has mentioned that there is a dispute between all the brothers (defendants) therefore, they are living separately whereas the plaintiff has pleaded that defendants were not looking after their father which has caused guilty to deceased Kapileshwar and he used to discuss this issue with defendant No. 6 & 7. But no evidence to substantiate such pleadings were brought on record. Even the mother of defendants No. 1 to 7 in her evidence before the trial Court has stated that her sons were looking after Kapileshwar properly and in the life time he has partitioned the suit property. In the cross-examination, she has reiterated that the plaintiff Ratna Bai, Nila Bai were not looking after her husband. She has stated that even they do not offer a glass of water.
(iii) The plaintiff witness- Ahibaran has admitted in the cross-examination that the deceased Kapileshwar has told him that he has purchased some land and its documentation is to be done and for that he was called to put his signature and he has signed on it. He has also admitted that he is not educated but he used to sign. He has stated that before his reaching to Registry Office, the executant witness and Registrar has already signed.
(iv) The plaintiff has not placed any material on record to substantiate averment made in the plaint that the defendants No. 1 to 5 were illtreating deceased Kapileshwar therefore, the will has been executed the Will in favour of daughter-in-law and son of defendants No. 6 & 7 excluding wife also. This is a 14 suspicious circumstance.
(v) The plaintiffs' witness Ratnabai, PW1 admitted that testator was heart and healthy 8 years ago, but in the will it has been mentioned that testator has become weak, therefore, he has executed the will. This creates a suspicious circumstance and no clouds were cleared to rebut such contradictory material placed on record.
(vi) The beneficiaries of the will are wives of defendant No. 6 and 7 and their children but no other persons including defendants No. 1 to 5 and their children have also not included in the will. This creates a suspicious circumstance.
22. Learned counsel for the appellants/defendants has placed reliance in the case Kavita Kanwar v. Mrs. Pamela Mehta 7 2020 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 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 7 2020 SCC Online SC 464 15 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 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. He has also referred to the judgment rendered by Hon'ble the 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 16 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 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 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 17 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. Learned counsel for the defendants would submit that the as per Section 63 of the Act, 1925, it is required that the attesting witness should have seen the testator sign or affix his mark to the will or has seen some other person signed the will, in the presence and by the direction of the testator, but from the evidence on record, it is established that the attesting witness has not seen the testator putting his sign which is non-compliance of the provisions of the Section 63(3) of the Act, 1925. Hon'ble the Supreme Court in Raj Kumari Vs. Surinder Pal Sharma 8 has examined this issue and has held at paragraph 13 & 14 as under:-
"13. As per the mandate of clause (c), a Will is required to be attested by two or more witnesses each of whom should have seen the testator sign or put his mark on the Will or should have seen some other person sign the Will in his presence and by the direction of the testator or should have received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person. The Will must be signed by the witness in the presence of the testator, but it is not necessary that more than one witness should be present at the same time. No particular form of attestation is necessary. Thus, there is no prescription in the statute that the testator must necessarily sign the Will in the presence of the attesting witnesses only or that the attesting witnesses must put their signatures on the Will simultaneously, that is, at the same time, in the presence of each other and the testator.
14. The need and necessity for stringent requirements of clause
(c) to Section 63 of the Indian Succession Act has been elucidated and explained in several decisions. In H. Venkatachala Iyengar v. B.N. Thimmajamma and Others.2 dilating on the statutory and mandatory requisites for validating the execution of the Will, this Court had highlighted the dissimilarities between the 8 2019 SCC Online SC 1747 18 Will which is a testamentary instrument vis-à-vis other documents of conveyancing, by emphasising that the Will is produced before the court after the testator who has departed from the world, cannot say that the Will is his own or it is not the same. This factum introduces an element of solemnity to the decision on the question where the Will propounded is proved as the last Will or testament of the departed testator. Therefore, the propounder to succeed and prove the Will is required to prove by satisfactory evidence that (i) the Will was signed by the testator; (ii) the testator at the time was in a sound and disposing state of mind;
(iii) the testator understood the nature and effect of the dispositions; and (iv) that the testator had put his signature on the document of his own free will. Ordinarily, when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of mind of the testator and his signature as required by law, courts would be justified in making a finding in favour of the propounder. Such evidence would discharge the onus on the propounder to prove the essential facts. At the same time, this Court observed that it is necessary to remove suspicious circumstances surrounding the execution of the Will and therefore no hard and fast or inflexible rules can be laid down for the appreciation of the evidence to this effect."
25. Learned counsel for the plaintiffs would submit that the finding recorded by the learned trial Court is legal justified and does not warrant interference from this Court and would also refer to the judgment of Rajkumari (Supra). He would submit that from the evidence of testimony as well as cross-examination of PW-3, it is quite clear that on the date of execution of the will, Kapileshwar on his own and alone came to Tahsildar Court/Registrar premises. Kapileshwar was in good health and mobility. The will was typed/ drafted by and Arjinavish at the typing spot, which was outside of the Registrar Office. The signature of Kapileshwar was done immediately after typing at the typing spot and was present at the time and the witness had seen Kapileshwar putting his mark/ signature at the time of execution of will. He would further submit that execution of the will and registration of will are two different things, as such, it is not required for him to compulsory register the will. He would further submit that from bare perusal of Ex. P/1, it is quite clear that testator Kapileshwar and attesting witness have put their signature/mark at two different places, one is during the time of execution of will and second one is at the time of registration of will inside the Registrar Office, therefore, 19 the submission made by learned counsel for the defendants that the attesting witness has not seen the testator at the time of signing of will, deserves to be negative by this Court.
26. He would further submit that the attesting witness was examined before the trial Court after lapse of 9 years, therefore, he may be unable to explain the fact properly which may not be a ground to hold that the will is not duly proved. He would refer to the judgment of Hon'ble High Court of Madras in case of Senthil Kumar (Supra) and would refer to 22 which is extracted below:-
"22. He deposed that while drafting the will-Ex.A-3, he was very well present and the same was written by Kalyanasundaram- P.W.5. After the drafting process is over, Arumugha Mudaliar signed the will and he saw Arumugha Mudaliar signing the will. He put his signature as attestor in the will along with one Seenu. In cross examination, he mentioned that Ex.A-3 was written in 1984 and he did not know the exact month and date. By pointing out certain discrepancies in his statement that only one person attested Ex. A-3 etc., learned counsel for the first defendant contended that P.W.4 would not have attested the will. After going through his entire evidence, we are unable to accept the said contention. It is to be noted that though the will Ex. A-3 was executed on 11-10-84, P.W.4 was examined in the Court nearly after 4 years i.e., on 2-12-88 and in such a circumstance, one cannot expect that P.W.4 should say or depose all the details about the will accurately. Any how, the fact remains that he is one of the attestors of Ex. A-3 and he saw Arumugha Mudaliar signing Ex.A-3 in his presence and it is his evidence that the will was written by Kalyanasundaram- P.W.5. There is no reason to disbelieve the version of P.W.4. Thus, the plaintiffs have complied with the requirement under Section 68 of the Indian Evidence Act."
27. He would further submit that from the material placed on record by the defendant, it cannot be held that there is suspicious circumstances surrounding the will and would refer to the judgment of Hon'ble the Supreme Court in Bharpur Singh (supra). This judgment has been considered by Hon'ble the Supreme Court in Murthy (Supra). He would further submit that execution of Class-I legal heirs does not vitiate the will as held by Hon'ble the Supreme Court reported in case of Leela (supra) and would submit that since no substantial question of law is involved therefore, the appeal may kindly dismissed.
28. Now coming to the fact of the case, it is quite clear that when the will was executed on 05.02.2000 and the suit for declaration and 20 partition of the suit property has decided in the year 2002, Kapileshwar has not placed on record the said will. Similarly, the attesting witness has stated that before his arrival to the Registry Office, signature has been done by all the parties. Wife of deceased Kapileshwar has stated that his sons-defendants No. 1 to 5 are looking after Kapileshwar carefully and to rebut this evidence, nothing has been brought on record by the plaintiff that defendants No. 1 to 5 are not looking after their father Kapileshwar. If we see the list of beneficiaries of the will, they are daughter-in-law of the deceased and wife of defendants No. 6 & 7, other beneficiaries are sons of defendants No. 6 & 7, which itself creates that there is suspicious circumstance and the plaintiff is unable to clear the clouds, as such, it is quite clear that the will has not been proved, accordingly, the learned First Appellate Court has committed illegality in allowing the appeal filed by the plaintiff. Thus, first substantial question of law is answered in favour of the defendants and against the plaintiff and it is held that First Appellate Court is not justified in holding that the plaintiffs have proved the title on the basis of will dated 05.05.2020 (Ex.P-1) executed by Kapileshwar.
29. So far as, the second substantial question of law is concerned, it is quite clear that the learned trial Court after appreciating the evidence, material placed on record and considering the judgment and decree passed by the learned Civil Judge Class-II Raigarh in Civil Suit No. 99/1999 wherein the suit property of the present suit, is a subject matter and for which, partition has already been allowed. This finding was in accordance with law which was reversed though the Appellate Court has recorded the finding that the principle of res-judicata is applicable to the present facts of the case, but it will supersede by the will. Since, this Court while deciding the first substantial question of law has held that the will has not been proved, therefore, the finding recorded by the learned trial Court that principle of res judicata is applicable is set aside, as such, second substantial question of law, is also decided in favour of the defendants and against the plaintiffs.
2130. Hon'ble the Supreme Court in Jama Msjid Vs. K.V. Rudrappa 9 wherein it has been examined the principle of res judicata and has held as under:-
"17. Before analysing the three suits specifically, it is necessary that we visit the jurisprudence on res judicata. Section 11 CPC states as follows:
"11. Res Judicata: No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
[...] Explanation IV.-- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V.-- Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused.
Explanation VI.-- Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating .
[...] Explanation VIII.-- An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.]"
18. In order to attract the principles of res-judicata, the following ingredients must be fulfilled:
(i) The matter must have been directly and substantially in issue in the former suit;
(ii) The matter must be heard and finally decided by the Court in the former suit;
(iii) The former suit must be between the same parties or between parties under whom they or any of them claim, litigating under the same title; and 9 2021 SCC Online SC 792 22
(iv) The Court in which the former suit was instituted is competent to try the subsequent suit or the suit in which such issue has been subsequently raised.
19. In Syed Mohd. Salie Labbai (dead) by L.Rs v. Mohd. Hanifa (dead) by L.Rs 14, Justice S Murtaza Ali speaking for a Bench of two judges observed that before a plea of res judicata can be given effect, the following conditions must be proved:
"7...
"(1) that the litigating parties must be the same;
(2) that the subject-matter of the suit also must be identical;
(3) that the matter must be finally decided between the parties; and (4) that the suit must be decided by a court of competent jurisdiction."
20. The Court noted that "the best method" to decide the question of res judicata is first to determine the case of the parties as they are put forward in their respective pleadings of their previous suits, and then to find out as to what had been decided by the judgments which operate as res judicata. In that case, it was held that the judgment in the previous suit was confined to two points:
(i) The plaintiffs claimed certain rights for the performance of ceremonies in the properties and a share in the income accruing to the mosque from the worshippers;
(ii) A claim, insofar as the graveyard was concerned for receiving pit fees for burials. Consequently, it was held that the Trial court had not decided upon either the public character of the mosque or the mode and manner or the effect of the dedication of the site for the purpose of the mosque or the graveyard."
31. From the above stated legal proposition, it is quite vivid that the learned First Appellate Court has erred in not applying the principle of res-judicata and upholding the dismissal of the suit by the learned trial Court as party in the case is one and the same, the subject matter of suit is also one and the same, therefore, should have applied the principle of res-judicata without any reservation and should have dismissed the appeal.
32. In light of the aforesaid discussion, considering the law on the subject, it is crystal clear that the validity of Will (Ex.P-1) is not 23 proved, in accordance with the provisions of the law and suspicious circumstances are available on record which have not been cleared by the plaintiffs by placing materials on record, therefore, judgment and decree dated 11.03.2011 passed by the District Judge, Raigarh District - Raigarh in Civil Appeal No. 22- A/2009 deserves to be set aside as the suit is barred as per the Principle of Res-judicata also.
33. Accordingly, the appeal filed by the defendants is allowed and the judgment and decree dated 11.03.2011 passed by the District Judge, Raigarh District - Raigarh in Civil Appeal No. 22-A/2009 is set aside. The order of the learned trial Court dismissing the suit is restored.
34. A decree be drawn-up accordingly.
Sd/-
(Narendra Kumar Vyas) Judge Deshmukh