Chattisgarh High Court
Deepak Since Dead Through Legal ... vs Smt Rajkumari And Others on 16 November, 2011
HIGH COURT OF CHATTISGARH AT BILASPUR
FA No 534 of 1998
Deepak since dead through legal representatives and three others
...Petitioners
Versus
Smt Rajkumari and others
...Respondents
! Shri Sanjay Shyam Agrawal for the appellants
^ Shri Alok Bakshi for respondents No 1 to 4 Shri SRJ Jaiswal PL for respondent No 5
CORAM: Honble Shri Nk Agarwal J
Dated: 16/11/2011
: Judgement
JUDGMENT
Delivered on 16112011 FIRST APPEAL UNDER SECTION 96 OF CIVIL PROCEDURE CODE
1. This is plaintiffs' first appeal under Section 96 of the Code of Civil Procedure (for brevity `the C.P.C.') against the judgment and decree dated 16.09.1998 passed in Civil Suit No. 28-A/1995 by the 1st Additional District Judge, Balodabazar, Dist. Raipur whereby and whereunder the plaintiffs' suit has been partly decreed.
2. Facts of the case in brief are as under:-
(i) The original plaintiff late Deepak Vishnoi and appellants No.2 to 4 instituted a suit for declaration and permanent injunction. Admittedly, the plaintiffs and defendants had common ancestor late Babulal Vishnoi, son of Chokhelal Vishnoi. Late Babulal Vishnoi owned agricultural lands admeasuring 18.256 hectares situated at village Champa and two houses at Baloda Bazar, one house is situated on plot No.114 admeasuring 4231 sq.ft. and another is situated on plot No.26 to 28 admeasuring 2075 sq.ft.
(ii) According to plaintiff, the aforesaid property belonged to late Babulal Vishnoi. Late Babulal Vishnoi was last seen on 13.05.1987 and thereafter he was not heard of for 7 years, therefore, he died a civil death.
After death of Babulal Vishnoi, the suit property devolved on the plaintiffs and defendants, who were members of the joint family. On the basis of forged and fabricated Will dated 20.11.1992 alleged to have been executed by late Smt. Rajrani i.e. widow of late Babulal Vishnoi and mother of late Deepak, Harbansh and Smt. Rajkumari, defendants No. 1 to 4 made an application for mutation of their name over the suit land. Late Smt. Rajrani neither had any authority to execute the Will in the lifetime of late Babulal Vishnoi nor the above Will, being forged and fabricated, convey any title upon defendants No.1 to 4.
(iii) The defence to the suit inter alia is that late Smt. Rajrani was widow of late Babulal, was managing the property and was a Karta of joint Hindu family. Parties are in separate possession of the house in question. The original plaintiff - Deepak and Harbansh used to ill-treat with their mother late Smt. Rajrani, as a result of which, she was residing with her daughter Smt. Rajkumari. A true and valid Will had been executed by late Smt. Rajrani in sound and disposing state of mind in favour of defendants No.1 to 4 and suit is liable to be dismissed.
(iv) The learned trial Court, after framing issues, recorded the evidence of parties.
(v) The learned trial Court, vide impugned judgment, partly decreed the suit filed by the appellants/plaintiffs finding inter alia: suit property is not self acquired property of late Babulal but is ancestral property of the parties. Late Babulal has died a civil death as he was last seen in the year 1987; on his death, his widow Smt. Rajrani, two sons Deepak and Harbansh and daughter Smt. Rajkumari each had become entitled for 1/4th share in the suit property; Smt. Rajrani was competent to execute the Will to the extent of her 1/4th share; Will deed (Ex.D.16) executed by Smt.Rajrani is true, genuine and valid and conveys title in favour of defendants No.1 to 4 to the extent of her 1/4th share in the suit property; rest of the property is joint property of plaintiffs and defendants.
3. Shri Sanjay Shyam Agrawal, learned counsel for the appellants would submit: the impugned judgment and decree in so far as it holds that Will executed by late Smt. Rajrani in favour of defendants No.1 to 4 is true, genuine and valid is patently erroneous and illegal. According to him, the Will deed (Ex.D.16) is shrouded by the following unnatural or suspicious circumstances:
i. Smt. Rajrani was not competent to execute the Will due to her weak eye sight;
ii. Scribe and attesting witness Kuldeep (D.W.4) is very much interested in the execution of Will in favour of respondents No.1 to 4 inasmuch as he is a near relative of defendant No.2 i.e. husband of Smt. Rajkumari.
iii. Narendra Singh himself took a prominent part in the execution of Will, which confers him substantial benefit.
iv. The Will was executed in the house of Smt. Rajkumari; and v. There is material discrepancy in the statement of Kuldeep (D.W.4) with regard to mention of survey numbers of suit land in the Will deed (Ex.D.16).
4. On the other hand, Shri Alok Bakshi, learned counsel appearing for the respondents/defendants supported the judgment and decree and submitted: the trial Court, after appreciating the entire evidence and material brought on record by both the parties in its proper perspective has passed the judgment and decree, which deserves to be upheld.
5. I have heard learned counsel for the parties, perused the judgment and decree impugned including the record of the trial Court.
6. The real controversy in the instant case revolves around the question whether or not, in the facts and circumstances, the Will deed (Ex.D.16) executed by late Smt. Rajrani is surrounded by such suspicious or unnatural circumstances, which makes it invalid and not genuine.
7. Section 63 of the Indian Succession Act, 1925 (for short `the Act of 1925') and Section 68 of the Indian Evidence Act, 1872 (henceforth `the Act of 1872') read as under:
"63. Execution of unprivileged Wills.--- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) 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 testator, or has received from the testator a personal acknowledgment 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 witness be present at the same time, and no particular form of attestation shall be necessary."
"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 not 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 provisions 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.]"
8. Section 63 of the Act of 1925 lays down the mode and manner of execution of an unprivileged Will. Section 68 of the Act of 1982 postulates the mode and manner and proof of execution of document, which is required by law to be attested. It in unequivocal terms states that execution of Will must be proved at least by one attesting witness, if an attesting witness is alive and subject to the process of the court and capable of giving evidence. Will being a document has to be proved by primary evidence except when the Court permits a document to be proved by leading secondary evidence.
9. The burden of proof that the Will has been validly executed in terms of Section 63 of the Act of 1925 and is a genuine document is on the propounder. The propounder is further required to remove the suspicion by leading sufficient and cogent evidence, if there exists any. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document.
10. The Supreme Court in the case of Madhukar D. Shende v. Tarabai Aba Shedage, (2002) 2 SCC 85 has held: the law of evidence does not permit the conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict - positive or negative and observed in paragraphs 8 and 9 as under:
"8. The requirement of proof of a will is the same as any other document excepting that the evidence tendered in proof of a will should additionally satisfy the requirement of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. If after considering the matters before it, that is, the facts and circumstances as emanating from the material available on record of a given case, the court either believes that the will was duly executed by the testator or considers the existence of such fact so probable that any prudent person ought, under the circumstances of that particular case, to act upon the supposition that the will was duly executed by the testator, then the factum of execution of will shall be said to have been proved. The delicate structure of proof framed by a judicially trained mind cannot stand on weak foundation nor survive any inherent defects therein but at the same time ought not to be permitted to be demolished by wayward pelting of stones of suspicion and supposition by wayfarers and waylayers. What was told by Baron Alderson to the Jury in R v. Hodge 1838, 2 Lewis CC 227 may be apposite to some extent :
"The mind was apt to take a pleasure in adapting circumstances to one another and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenuous the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete."
The conscience of the court has to be satisfied by the propounder of will adducing evidence so as to dispel any suspicions or unnatural circumstances attaching to a will provided that there is something unnatural or suspicious about the will. The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict positive or negative.
9. It is well-settled that one who propounds a will must establish the competence of the testator to make the will at the time when it was executed. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the manner contemplated by law. The contestant opposing the will may bring material on record meeting such prima facie case in which event the onus would shift back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the will and in sound disposing capacity executed the same. The factors, such as the will being a natural one or being registered or executed in such circumstances and ambience, as would leave no room for suspicion, assume significance. If there is nothing unnatural about the transaction and the evidence adduced satisfies the requirement of proving a will, the court would not return a finding of 'not proved' merely on account of certain assumed suspicion or supposition. Who are the persons propounding and supporting a will as against the person disputing the will and the pleadings of the parties would be relevant and of significance."
11. Reverting to the facts of the case, it is not in dispute that late Smt. Rajrani was living with defendants till her death on 23.01.1995. Kuldeep (D.W.4), the Scribe and also one of the attesting witnesses, in his testimony, has categorically stated that the Will was scribed by him at the dictation of Smt. Rajrani i.e. testator. Dr. K.K.Sahu (D.W.5), who issued medical certificate (annexed with the Ex.D.16) regarding her mental fitness and was also attesting witness, has deposed that testator had put her thumb impression in the presence of attesting witnesses while in sound and disposing state of mind after understanding the nature and effect of dispositions made by her. The Scribe - Kuldeep (D.W.4) and two attesting witnesses namely Dr. K.K. Sahu (D.W.5) and Dineshwarlal (D.W.6) in substance have deposed that testator had put her thumb impression on the Will in their presence and they had signed the Will in her presence and in the presence of each other. In cross- examination, the appellants failed to elicit anything which could persuade this Court to disbelieve the testimony.
12. In fact, the due execution of Will deed as per Section 63 of the Act of 1925 and the fact that the Will deed bears thumb impression of late Smt. Rajrani was not disputed by the appellants.
13. There is nothing to doubt the mental and physical capacity of Smt. Rajrani, testator inasmuch as apart from other witnesses, Dr.K.K.Sahu (D.W.5) has also certified that she was in sound and disposing state of mind. The fact that her eye sight was weak has been denied by all the defence witnesses and the appellants have also failed to substantiate the above by leading cogent and clinching evidence in this regard. All attesting witnesses including Dr. K.K.Sahu and Scribe Kuldeep were known to the testator. She was living with her daughter Smt. Rajkumari since 1987, therefore, the fact that: Khasra Numbers of the suit land were not mentioned in the Will deed; the Will was executed in the house of Smt. Rajkumari; and Kuldeep, the Scribe of the Will was a distant relative of one of the beneficiaries - Narendra Singh, when examined in the light of judgment of Supreme Court in the case of Madhukar D. Shende v. Tarabai Aba Shedage (supra), cannot be said to be such suspicious or unnatural circumstances leading to make the Will invalid. Further, there is nothing on record to show that beneficiaries Narendra Singh and Smt. Rajkumari have taken prominent part in the execution of the Will. Therefore, the contention raised by Shri Sanjay S. Agrawal that Will, being not genuine, is invalid is devoid of merit.
14. A feeble attempt has also been made by Shri Agrawal that since the Will has been executed in the year 1992 before Babulal died of civil death, therefore, it is not valid, is also devoid of substance. The Will has to take effect after death of testator. Indisputably, Babulal died of civil death in the year 1994, on that date late Smt. Rajrani became absolute owner over her 1/4th share in the suit property, and therefore, after her death, it will confer title on the persons in whose favour, the Will has been made.
15. No other points have been raised.
16. For the reasons mentioned hereinabove, the appeal being devoid of merit and substance, is liable to be and is hereby dismissed.
17. In the facts and circumstances of the case, there shall be no order as to costs.
18. A decree be drawn accordingly.
Judge