Madhya Pradesh High Court
Ramesh Verma And Ors. Etc. vs Smt. Lajesh Saxena And Ors. Etc. on 31 July, 1997
Equivalent citations: AIR1998MP46, AIR 1998 MADHYA PRADESH 46, (1998) 2 CIVILCOURTC 67, (1998) 3 LANDLR 366, (1998) 2 MARRILJ 546, (1998) 2 CURCC 333
JUDGMENT Tej Shankar, J.
1. These three first appeals (F.A. No. 29, 30 & 31 of 1991) arise out of Judgment and decree dated 31-1-91 passed by the Fifth Additional Judge to the Court of District Judge, Gwalior. As all the appeals arise out of the same judgment they have been heard together and are being disposed of by this 'common judgment.
2. Smt. Lajesh Saxena filed a suit for partition and separate possession of her 1/8 share in the property in dispute. She also prayed for mesne profits according to her share in the usufruct of her property. The admitted pedigree is as follows :
___________________________________________________________________________ Bhagwan Prasad = Smt. Jaydevi (wife) (died in 1952) def. No. 3 (died during / pendency of suit - 1972) / ________________/__________________________________________________________ / / Jagan Verma = Smt. Prabhavati (wife) (died in 1967) (died on 30-5-84) def. No. 2 ___________________________________________________________________________ / / Ramesh Verma Smt. Lajesh Saxena = Dr. J. G. Saxena (def. No. 1) (daughter) (plaintiff) (husband) (married in 1953) ___________________________________________________________________________ / / / / / / Rajat Verma Rajeev Verma Sanjeev Kumar (def. No. 5) (def No. 4) (def No. 3) (implied on the basis of a will dated 22-5-1984) There is also no dispute between the parties that the property detailed in para 2 belonged to Bhagwan Prasad. Bhagwan Prasad died in 1952 leaving his widow Smt. Jaydevi and a son Jagan Verma. Jagan Verma died in 1967 leaving his son Ramesh Verma, defendant No. 1, widow Smt. Prabhavati, defendant no. 2 and mother Jaydevi as his L.R. The plaintiff alleged that after the death of Bhagwan Prasad the name of his son Jagan Verma and widow Jaydevi was entered in village record as Pakka tenant in accordance with the provisions of Madhya Bharat Land Revenue & Tenancy Act, 1950 (hereinafter referred to as the M.B.L.R.T. Act). After the enforcement of M. P. Land Revenue Code, 1959, they became Bhumiswami. She claimed that she had 1/4 share in 1/2 share of Jagan Verma i.e. she had 1/8 share. After the death of Bhagwan Prasad the property was not partitioned. She did not want to keep her share joint and as such she wanted that the property be separated by metes and bounds. Jagan Verma had sold municipal no. 189/24 situated in Mohalla Marimata, Gwalior, by means of a sale-deed and had also executed a deed in that regard. Except the said municipal No. 189/24 the rest of the property was joint. As the defendants were not separating her share the suit was filed. Smt. Jaydevi, defendant no. 3. died during the pendency of the suit without leaving any will. Thus, her share became 1/3.
3. Defendants no. 1 and 2, namely, Ramesh Verma and Smt. Prabhavati, filed a joint written statement contesting the plaintiff's claim. They alleged that the plaintiff had no right in the disputed property as such she had also no right to get any share separated. The allegation that Jagan Verma executed any sale in favour of Smt. Prabhavati is incorrect. It was collusive allegation. In reality the property was mortgaged. The plaintiff is the daughter-in-law of Prabhavati. There was no question of execution of any sale-deed. A case was pending in the Court in that regard. Jaydevi had executed a will in favour of defendant no. 3 and 4 on 7-12-69 and as such the claim that the plaintiff got any right after the death of Jaydevi is incorrect. The plaintiff had no right to claim mesne profits from the Karta of the family. It was a joint Hindu family and joint family consisted of widow, two minor sons and a minor daughter. Arrangements for the education and maintenance of these children had to be made which may cost about Rs. 2,00,000/-. There was a charge over joint family property with respect to loan incurred in connection with the plaintiffs marriage. So long as it was not paid up the plaintiff had no right to claim partition in case she is found to have any share. As defendants' father died in 1967 and at that time there was joint Hindu family he had 1/6 share only and thus the plaintiff could get 1/10 share out of 1/6 share i.e. a total share of 1/60. That share too could not be partitioned so long as the other members of the joint family did not demand partition. Defendant no. 3 and 4 in their separate written statement more or less supported the factual averments made by aforesaid defendants no. 1 and 2. They alleged that the plaintiff had knowledge of the will executed by Jaydevi in their favour on 7-12-69. The plaintiff had separated from the joint family, she had no right in the coparcenery property. The plaintiff was also liable to the liabilities which exist with respect to the property in dispute. Defendant Sanjeev Kumar supported the plaintiff s claim and alleged that he is the son of Smt. Prabhavati' s daughter Smt. Lajesh Saxena, the plaintiff. Smt. Prabhavati executed a will in his favour on 22-5-1984 which was the last will and as such he also became co-owner.
4. The learned trial Court framed necessary issues that arose from the pleadings of the parties, took evidence and heard the parties and after considering the entire material on record held that the plaintiff had 1/12 share of Jagan Verma, Ramesh Verma had 1/3 share of Bhagwan Prasad and 1/12 share of Jagan Verma i.e. a total share of 5/12 and defendant no. 3 and 4 had 1/2 share. It also held that the house could not be partitioned in view of Section 23 of the Hindu Succession Act. It, therefore, decreed the suit accordingly and a preliminary decree was directed to be passed with respect to the aforesaid shares and enquiry was directed for mesne profits from the date of the institution of the suit till delivery of possession for distribution of mesne profits. Ramesh Verma, defendant no. 1 preferred appeal No. 29/91, Sanjeev defendant no. 5, preferred appeal No. 30/91 whereas plaintiff Smt. Lajesh Saxena has preferred appeal no. 31/91.
5. Learned Counsel for the contesting defendants contended that the suit was not maintainable as Smt. Lajesh Saxena was married before the enforcement of the Hindu Succession Act and Section 6 Explanation 2 applies. In any case, he urged that the learned Court below was perfectly justified in not decreeing the suit for partition of the dwelling house as the statement of Ramesh Verma shows that they were tenants in the Kothi. The will alleged by the plaintiff in favour of Sanjeev Kumar has not been proved in accordance with law. He also alleged that the will in favour of Rajeev and Rajat Verma have been proved and the share of the testator passed to them.
6. The contention of the learned Counsel for the plaintiff as well as her son Sanjeev Kumar is that the Court below committed an error in not accepting the will executed by Smt. Prabhavati in favour of Sanjeev Kumar. The Court committed an error in determining the share of the plaintiff. She is entitled to 5/24 out of 5/12 and 1/12 out of 1/3 of Jagan Verma i.e. a total share of 7/24 of the whole property and the findings that she was entitled only to 1/12 share are incorrect. The Court also committed error in not decreeing for partition of the house as well.
7. From the arguments advanced before me by the learned Counsel for the parties it is crystal clear that there is no dispute between the parties with respect to the property in dispute and the pedigree brought on record as mentioned above. The only dispute between the parties is with respect to the share and the proof or disproof of the three wills which have been alleged to have been executed by the executants and their effect. Admittedly property belong to Bhagwan Prasad who died in 1952. A perusal of the plaint shows that the property in dispute detailed in para 2 of the plaint which consists of several survey numbers belonged to Bhagwan Prasad who was the Pakka Krishak of these plots. It has further been mentioned in it that in the said land Bhagwan Prasad had constructed a well and in the remaining portion there was Bagicha. The fact that Bhagwan Prasad had a Khata as mentioned in para 1 has been specifically admitted by the defendants no. 1 and 2 in their written statement. They, however, alleged that the area was wrongly mentioned and no land revenue was paid. There was are sidential house. Similar averments have also been made by defendants no. 3 and4. They have specifically admitted that Bhagwan Prasad was the Pakka Krishak of the Khata. The learned Counsel for the parties contended that at the time when Bhagwan Prasad died, i.e. 1952, the M.B.L.R.T. Act was in force and succession was to be governed under the provisions of this Act. Section 82 provides for devolution of rights on the death of a male Pakka tenant. This section provides :
"When a male pakka tenant dies, his interest in his holding shall devolve in accordance with the order of succession given below :
Class 1 - Son, grandson, (son's son), great grandson (son's son's son), widow predeceased son's widow, predeceased grandson's widow and predeceased great grandson's widow.
Explanation I -- A grandson whose father is dead and great grandson whose father and grandfather are both dead shall inherit equally with the son.
Explanation II............"
Thus, on the death of Bhagwan Prasad in 1952 succession was to be governed under this section. According to the admitted case of the parties he left behind his son Jagan Verma, widow Smt. Jaydevi and at that time Jagan Verma had also a son Ramesh Verma. On behalf of the plaintiff it has been contended that Bhagwan Prasad's property went under this section to his son Jagan Verma and his widow Smt. Jaydevi and grandson in equal shares. An averment in this regard has been made in para 5 of the plaint. Defendant No. I and 2 as well as defendants No. 3 and 4 in their written statements have unequivocally admitted it. Thus, there remains no dispute that after the death of Bhagwan Prasad the property went in equal shares to his son Jagan Verma, grandson Ramesh and widow Smt. Jaydevi. They, therefore, got 1/3rd share each. The dispute arose thereafter. Admittedly Jagan Verma dies in 1967 leaving his widow Smt. Prabhavati, son Ramesh Verma, daughter Smt. Lajesh (plaintiff) and mother Smt. Jaydevi. According to the plaint, vide averments made in para 6 of the plaint, the share of Jagan Verma went equally to the aforesaid persons. In this way, Smt. Prabhavali, Ramesh Verma and plaintiff Smt. Lajesh Saxena got 1/3 share. This claimof the plaintiff has been vehemently denied by the contesting defendants. The argument advanced is that Smt. Lajesh (plaintiff) was married in the year 1953 and in this way she separated from the family. Learned Counsel for the contesting defendants urged that the plaintiff got no right in the property. Reference has been made to Article 212 to 216 of Principles of Hindu Law by D.F. Mulla. The contention is that the Hindu Law before the enforcement of the Hindu, Succession Act has been specified in these Articles by the learned author. A joint Hindu family as mentioned under Article 212 consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters. A daughter ceases to be a member of her father's family on marriage and becomes a member of her husband's family. Thus, on this basis the learned Counsel contended that the plaintiff being a daughter who was married before the enforcement of the Hindu Succession Act has to be taken to have ceased to be a member of her father's family on marriage. A lengthy argument has been advanced by the learned Counsel in this regard. In my view it is not necessary to go into the lengthy argument advanced by the learned Counsel because there has been a drastic change in law after the enforcement of the Hindu Succession Act. Admittedly Jagan Verma died after the enforcement of the Hindu Succession Act and hence Section 6 of the Hindu Succession Act comes into play. It is significant to mention that under this section if a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenery property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenery and not in accordance with this Act. There is, however, a significant exception mentioned in the proviso. Under the proviso if the male Hindu left behind his surviving a female relative specified in Class I of the Schedule or a male relative, specified in that class who claims, through such female relative, the interest of the deceased in the Mitakshara coparcenery property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. It, therefore, clearly means that on the death of Jagan Verma the succession opened and he left female relative specified in Class I i.e. the plaintiff being his daughter. Class I heirs mentioned in Section 8 does not make any exception with respect to a married daughter. It simply enumerates 'daughter' along with other heirs and all the heirs have to take simultaneously and to the exclusion of all other heirs. Thus, under this Class son, daughter and widow-mother have been mentioned. In this way, even if the plaintiff was married prior to the enforcement of the Act it will not make any difference because the succession opened in 1967 on the death of Jagan Verma.
Thus, the entire labour of the learned Counsel on the basis of the old law does not appear to be fruitful. The succession has to be governed u/Section 6 of the Hindu Succession Act. Consequently on the death of Jagan Verma his l/3rd share in the property of his father Bhagwan Prasad went in equal shares to his surviving heirs, namely, son Ramesh Verma, daughter Smt. Lajesh (plaintiff), widow Smt. Prabhavati and mother Smt. Jaydevi in equal shares. Thus, Ramesh Verma, smt. Lajesh and Smt. Prabhavati got 1/12 share, each. The share of Smt. Jaydevi increased by 1/12 because she already had 1/3rd share. Her share thus became 5/12. The position is, therefore, clear upto this stage.
8. The controversy between the parties is with respect to three wills alleged to have been executed by Smt: Jaydevi on 7-12-69 and the other will is dated 23-10-75 alleged to have been executed by Smt. Prabhavati in favour of defendants No. 3 and 4, Rajeev Verma and Rajat Verma and the third will alleged to have been executed on 22-5- 84 in favour of defendant No. 5, Sanjeev Kumar.
The fact as to whether all these wills have been proved in accordance with law or not has now to be seen. But before discussing the evidence relating to proof or disproof of the three wills it is necessary to mention the law in this regard.
Section 59 of the Indian Succession Act makes a provision as to who can dispose of his property by will and under this section every person of sound mind not being a minor is competent to dispose of his property by will. Section 62 provides that a will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by will.
Section 63 deals with execution of un-privileged wills. Section 63(c) is very important which runs as follows :
"63(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 the 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.
The above provision, therefore, provides the requirements of a will. It will not be out of place to mention here the provisions of Section 3 of the Transfer of Property Act as well as Section 68 of the Indian Evidence Act. Section 3 of the Transfer of Property Act defines, the word "attested", as follows:
'attested' in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has been the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same: time, and no particular form of attestation shall be necessary."
This definition is, more or less, in similar terms as mentioned in Section 63 of the Indian Succession Act as mentioned above. Section 68 of the Indian Evidence Act provides for proof of execution of document required by taw to be attested. It runs as follows ;
"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......."
Thus, the gist of the provisions mentioned above is that the will has to be proved in the manner provided therein. A will has to be proved like any other document except to the special requirement of attestation prescribed by Section 63. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matter (AIR 1959 SC 443 (451), AIR 1964 SC 529). I may also mention that the Apex Court in AIR 1955 SC 346 (351) has ruled that in order to prove due attestation of the will the probator of the will has to prove that two or more witnesses each of whom has seen the executant sign and they themselves signed in the presence of the testator. In the light of this proposition of law we have to scan the evidence to find out as to how far the party relying upon a particular will has been able to prove it in accordance with law. 9. The first will in controversy is the will alleged to have been executed by Smt. Jaydevi on 7-12-69 (Ex.D/2). The learned Counsel for the defendants contended that this will has been completely proved by the statement of scribe Mahesh Narayan as well as the attesting witness R.P. Johri. He argued that the statement of Mahesh Narayan fully complies with ,the formalities prescribed under the Indian Succession Act, 1925. As pointed out earlier that in order to prove the will a provision has been made u/Section 68 of the Indian Evidence Act. The will has to be proved like any other document except that there is a special requirement under which attestation prescribed by Section 63 has to be proved. DW 1, Mahesh Narayan has claimed that he scribed the will. He deposed that Jaydevi had executed a will in his presence on 7-12-69. The will executed by Jaydevi was Ex.D/2. He had scribed it with his own pen, at the time when the will was scribed, Shyam Mohan Bhatnagar and R.P. John were present. Smt. Jaydevi asked him to scribe the will. She dictated and he scribed. After it was written, he read it over to Jaydevi who had accepted it and signed before him. Witnesses Shyam Mohan Bhatnagar and R.P. Johri had also signed. Shyam Mohan Bhatnagar had died. The will was executed at the house of Ramesh Verma at about 5 or 6 P.M. He admitted in his cross-examination that he was friendly to Ramesh Verma and he used to visit him off and on. He also admitted that Jaydevi was illiterate but she could sign. She was weak on account of old age. He categorically stated that both the witnesses had gone along with him. Witness Bhatnagar was his friend and Johri was brother-in-law of Ramesh Verma. The stamp paper and printed paper was given to him on the basis of which he scribed Ex.D/2. This contradicts his earlier statement where he stated that Jaydevi dictated and he scribed. To quote his own words "Vah bolti gai thi aur mai likhata gaya tha." But here he slated that he was given stamp paper and printed paper on the basis of which he had written Ex.D/2. It, therefore, suggested that according to him he had written the will on the printed paper. He did not remember as to what was written on printed paper. He also did not know as to who had written that printed paper. Now, if we see the statement of R.P. Johri we find that he stated that Jaydevi had executed a will and Ex.D/2 was the same will which was written by Jaydevi before him and it bore his signatures. It was 7-12-69, Jaydevi had told him that she wanted to give her share to Rajeev and others. Thereafter shegot the wilt scribed from Mahesh Narayan at the house. It was scribed before him and Mahesh Narayan. His statement does not show that the will was executed on the instruction of Jaydevi and Jaydevi had signed over it before him or the witnesses had signed the will before Jaydevi. His statement does not show at all that Jaydevi had signed over it. He is highly interested person inasmuch as he is brother-in-law (Sala). The other scribe Mahesh Narayan is a friend of mother-in-law. He also stated that initially rough draft was prepared by Mahesh Narayan. He denied, that there was any; printed paper at the time of execution. At this, stage I may mention that Mahesh Narayan, as said above, specifically stated that there was a printed paper on the basis of which he had scribed; Ex.D/2. Regarding stamp paper he stated that, Mahesh Narayan hitmself had brought the stamp paper but Mahesh Narayan has not said so. Rather he stated that he was given the stamp paper and a printed paper. There is another contradiction when he stated that he did not go along with Mahesh Narayan but he had arrived at the house of Jaydevi earlier and Bhatnagar had reached thereafter him. First Mahesh Narayan reached and thereafter Bhatnagar. But Mahesh Narayan had said that he took both the witnesses with him. In this way, the statement of both these witnesses cannot be said to be sufficient to prove the execution of the will by Jaydevi. I may reiterate that the essential requirement of the proof of attestation as well as the fact that the will was executed on the instructions of executant Jaydevi and was signed by her before witnesses and the witnesses had signed before Jaydevi has not been proved at all by the attesting witnesses. The scribe too has not stated that the executant had signed before the witnesses and the witnesses signed before Jaydevi. In this view of the matter the contention of the learned Counsel for the defendants that the will has been proved is wholly unfounded. I, therefore, hold that the will alleged to have been executed by Jaydevi has not been proved.
10. Second will in controversy is alleged to have been executed on 23-10-1977 by Smt. Prabhavati. It is Ex.D/1 on record. The contention is that this will has been produced by Rajeev and Rajat consequent upon the death of Prabhavati during the pendency of the case. As far as the proof of this document is concerned, the learned Counsel argued that there is clinching evidence in the shape of statement of attesting witnesses and the Notary before whom the will was authenticated. The learned Counsel contended that provisions of Section 63 have been fully complied with. My attention has been drawn to the statement of attesting witness Shivaji Rao Tambat (DW 3) who according to the learned Counsel deposed that Prabhavati had signed on the will before him and he had also signed. He further stated that Gyanchand was also present and he also signed the will. He knew Prabhavati and she was fit mentally for the purpose of will. Learned Counsel also urged that Bhagwati Prasad Singhal deposed inpara I that Prabhavati and witnesses had signed the will and Prabhavati was mentally and physically sound. Now if we peruse the statements of both these witnesses we find that DW 3 Shivajirao Tambat in his statement stated that he knew Jagan Verma and his family from childhood as they were neighbours. Prabhavati was living with Ramesh Verma. She had executed a will before him which is Ex.D/1. Prabhavati had signed before him over Ex.D/1. At that time he and Gyanchand were present. Gyanchand was the tenant of Prabhavati. Besides the fact that Prabhavati had signed before him there is nothing in his statement to show that the attesting witness had also signed before Prabhavati. There is also nothing to show that the will was executed on the instructions of Prabhavati. At the time of execution of the will Lajesh was at her Sasural. He also stated "Singhal Vakil Saheb ke yahan Ravinagar main Basiyat hona bataya tha". In cross examination he deposed that he did not know as to who had brought the will after typing. Prabhavati had reached the house of Bhagwati Singhal at about 7 P.M. When he reached Prabhavati. Singhal Saheb and Gyanchand were present and there was no one-else. He was called by Ramesh Verma who was the son of Prabhavati. Thus, it shows that when he had reached there the contents of the will had already been typed. It, therefore, goes to suggest that he could not say that under whose Instructions the will was executed. No doubt, he deposed that mentally and physically Prabhavati was well but he further staled that 3 or 4 months prior to her death he did not see any effect of paralysis on any part of her body. He further stated that Ramesh Verma had taken Prabhavati and Shrivastava witness to the house of Singhal. He categorically stated that he had no talks about the contents of the will of Prabhavati. He, Shrivastava or anybody else did not read the will. It was not read loudly before him. It was also not read over to Prabhavati: Ramesh Verma had said that this is a Will, hence witnesses and Prabhavati should sign over it. This statement goes to show convincingly that it was Ramesh who manoeuvered the will. The contents were not read over to the witnesses or Prabhavati. It has also not been stated that it was written on the instructions of Prabhavati. Consequently this statement cannot be said to be sufficient by any stretch of imagination to prove the execution of the will.
11. The other witness on which reliance has been placed is DW 4, Bhagwati Prasad Singhal who stated that he was doing work of Notary at that time. On the will Prabhavati and witnesses had signed before him. It may be noted that the law does not require that the executant and witnesses should sign before the Notary. The law requires that the executant must sign before witnesses and the witnesses Must sign before the executant. There is nothing in, his statement to show this fact. He also admitted that there was nothing in Ex.D/1 that the will was read over to Prabhavati. He stated that because she herself was literate. Immediately thereafter he stated that it was also not written over Ex.D/1 that it was read over to the executant. He also stated that before execution of the will he had no talks with her nor she had disclosed her desire. Thus, his statement too does not go to prove the will. I, therefore, hold that this will has also not been proved.
12. Now there remains the third will i.e. the will alleged to have been executed on 22-5-84. It is Ex.D/1 on record. It is important to mention here that in the statement it has been mentioned that original will is Ex.D/1 and copy is Ex.D/1/C, the original is not on record. I had occasion to observe in a large number of cases that the original document is, not brought on record and in spite of it it is marked as Exhibit and its copy brought on record which is marked as C. This procedure does not appear to be correct. Unless the document is placed ,on record, it cannot be exhibited. Of course, if original is summoned from some authority or is in possession of third party and it could not be filed. In that case, when the document is summoned and is sought to be proved by a witness the record, must mention that the document is summoned from such and such authority and it has been proved by the witness in accordance with law as provided in the Indian Evidence Act and its copy is being placed on record which must be certified as true copy of the original which has to be proved. In this case also the original is not on record though the learned Court has mentioned it Ex.D/.l. The record further shows that a photo copy has been placed which is Ex.D/1 under which the date is given 25-.11-87. First of all I must mention that photo copy is not admissible under any provision. Now let us see as to how far the document alleged to be the will executed by Prabhavati on 22-5-84 has been proved. DW 2 Kailash Narayan Shrivastava produced on behalf Of defendant No. 5 Sanjeev, stated that Smt. Prabhavati Verma had executed Ex.D/1, the will in favour of Sanjeev Saxena. Ex.D/1 bore his signatures copy of which has been marked as Ex.D/1. There is nothing in his statement to show that the original was before the Court at the time when witness was being examined. He further stated that at the time when the will was executed Prabhavati had told that she was executing a will to his grandson to Sanjeev Saxena. Vakil Darbari had read it over before him to Prabhavati which she accepted. She had put her thumb impression before him on the will. At that time V.K. Saxena and he signed over the will as witness. Arora Notary had also come and he had verified before him. Darbari signed before him. V.K. Saxena and Darbari had signed before him. At the time when will was being written Prabhavati was in fit state. She had paralysis in right hand and right leg. In cross-examination he deposed that the will was executed in the house of J.C. Saxena who was the father of Sanjeev Saxena. It was executed a day before the death of Prabhavati. He used to go for giving injection to her. At that time when he went Sanjeev Saxena and Arora had reached earlier. The will was brought by Arora after getting it typed. He read it over and he was present. Prabhavati was suffering from paralysis. Ex. D/1 was read by Prabhavati herself. It was also read over to her. She was literate but there was paralysis in her hand and hence she could not write. He did not know about the hand of which thumb impression was put by Prabhavati. His statement too does not show the requirements of law. There is nothing to show that Prabhavali had put her thumb impression before the witnesses and the witnesses had put their signatures before Prabhavati. It is significant that according to the statement of this witness Prabhavati had paralysis in her right hand as such she could not write and had put thumb impression. Now if we see the entire evidence we find that it is admitted that by Dr. J.C. Saxena himself in para 6 of his statement that paralysis was in left hand and this fact has also been admitted by DW 1 Ramesh Verma in para 13. Thus, admittedly Prabhavati had paralysis in her left portion of her body. Consequently the statement of witnesses Kailash as well as Sanjeev in whose favour the will was claimed to have been executed that she had paralysis in her right hand cannot be believed. It appears to me that this statement has been made in order to bring the statement in conformity with the endorsement over the will. The statement of Kailash Narayan that the will was executed a day prior to the death of Prabhavati is also incorrect as it purports to have been executed on 22-5-84 bill the death of Prabhavati had taken place after about a week. The other witness who has been examined on behalf of Sanjeev is DW 3 Vijay Kumar Saxena who slated that Prabhavati had executeda will before him and at that time Kailash. Darbari and Notary Arora were present. Darbari had read over the will to Prabhavati and she had accepted it and she had put her thumb impression before him. He too had signed over Ex. D/1. After him Balwapuri, Darbari and Notary Arora too had signed over it. At the time when will was executed Prabhavali had paralysis in right hand and right leg and her mental condition was sound and she was speaking. Dr. J.C. Saxena was his real uncle. On the dale when the will was executed he had gone to see Prabhavati as usual. She was ill. Dr. Jagdish was at Dalia and Sanjeev was also out. Prabhavali was literate and used In sign in Hindi. On the date of the execution of the will she was very old but she was sick. She had paralysis in her right hand and leg. I have already said above that it is admitted by Dr. J.C. Saxena as well as Ramesh Verma that she had paralysis in her left part. Thus, to say that she had paralysis in her right side is wholly incorrect. No medical prescription nor the Doctor who had treated Prabhavati has been produced to show that she had suffered paralysis in her right portion of the body.
13. There is yet another statement in connection with this will. DW 4 Rakesh Kumar Darbari stated that he had prepared the will which was accepted by Prabhavati. He prepared the draft according to the instructions of Prabhavati. Whatever was told by Prabhavati was written by him and he did not add anything. He had read it over and she had accepted. It was read over before Notary and witnesses. She was mentally sound. She had put two thumb impressions on the last page and one impression on all the pages because she had paralysis on the right side. The witnesses Vijay Kumar and Kailash Balwapuri had put signatures before him. I may reiterate that it is not the requirement of the law that the witnesses or the executant should put their signatures before the scribe. The law is, as said above, that the witnesses must sign before the executant and the executant must sign before the witnesses. He also stated that the draft was prepared a day earlier. Prabhavati had given instructions at the time when none was present. He deposed that he had received a sum of Rs. 50/- for scribing the will but the other witness Kailash has slated that nothing was paid. A very significant statement has been given by him in para 9 when he stated that at the lime Prabhavati gave instructions for writing the will she had no paper or any file. All the instructions were given orally. He also stated that Prabhavati did not tell him as to what litigation was going with respect to the property or there was any dispute about the property or not. A perusal of the alleged will Ex. D/l shows that it gives the details of the litigation in respect of property. If according to the statement of witness the details were not given by Prabhavati is taken to be correct, it goes to show that the details with respect to the property must have been furnished to him by some external person. It cannot, therefore, be said that the will was executed in accordance with the instructions of Prabhavati. Rather it goes to suggest that there was some other person behind the execution of this will. Thus, a careful perusal of the statement of this witness goes to show that the will has not been proved in accordance with law.
14. Apart from what has been said above I may also mention that the persons relying upon the will must remove all the suspicious circumstances. I have already mentioned above one of the circumstances relating to the instructions given by Prabhavati and mention of the litigation details given which I need not repeat. The other circumstance is that admittedly Prabhavati had paralysis in her left part of the body and she was literate. Consequently there was ho occasion for her to put thumb impression over the document. An effort has been made to show that She had paralysis over the right part of the body which has not been believed by me above as it is against the admitted facts as shown above. It has been pointed out by the learned counsel for the contesting defendants that the will appears to have been executed at Lashkar High Court whereas the witnesses have said that it was executed at the residence. It is again a very important circumstance. Thus, taking into consideration all these facts I conclude that this will too has not been proved in accordance with law and is also surrounded by suspicious circumstances. No reliance can, therefore, be placed upon this will as well.
15. Having found that all the three wills involved in the case have not been proved in accordance with law and they cannot be relied upon we have to revert back to the position that there had never been a will and succession has to be governed as an intestate succession. The property in dispute is two fold, i.e. the house property as well as agricultural property. Both the learned counsel contended that at the time of death of Bhagwan Prasad the provisions of Madhya Bharat Land Revenue & Tenancy Act, Samvat 2007 (Act No. 60 of 1950) was enforced and succession was to be governed by Section 82 so far as the agricultural land is concerned. I have already quoted the provisions of Section 82 earlier. Under this provision when a male pakka tenant dies, his interest in his holding shall devolve in accordance with the order of succession upon the heirs mentioned in the section and according to it son, grandson (son's son), widow and other heirs were to take simultaneously. We are not concerned with other heirs given as, on the death of Bhagwan Prasad admittedly son Jagan Verma. grandson Ramesh Verma and widow Smt. Jaydevi were alive. In this way all of them received 1/3 share in the agricultural land under this provision. When Smt. Jaydevi died in 1972 provisions, of M.P. Land Revenue Code, 1959 had come into force. Thus, on the death of Bhagwan Prasad his son Jagan Verma, grandson Remesh Verma and widow Smt. Jaydevi got 1/3 share each. After the death of Jagan Verma his l/3, share devolved equally upon Ramesh Verma his son, Lajesh Saxena (plaintiff), Smt. Prabhavati his widow and Smt. Jaydevi his mother. In this way each of them got 1/12 share. Consequently the share of Ramesh Verma who had already 1/3 share became 1/3+ 1/12= 5/12 and Smt. Jaydevi too became 1/3 + l/l2 = 5/12. When Smt. Jaydevi died in 1972 her share which was 5/12 went upon the children of her predeceased son Jagan Verma in equal share i.e. to Smt. Lajesh (plaintiff) and Ramesh Verma. They got 5/24 each. Consequently the share of Ramesh became 5/12 + 5/24 and that of Lajesh became 1/12 + 5/ 12 p 1/2. Thereafter Smt. Prabhavati died in 1984 and by virtue of provisions of Section 15(1)(a) and Section 16(1) of the Hindu Succession Act her 1/12 share again went to Ramesh defendant and plaintiff Lajesh, meaning thereby each one of them got 1/ 24 share. Thus, the share of Ramesh became 1/3 which he got from Bhagwan Prasad plus 1/12 which he got from Jagan Verma plus 5/12 which he got from Smt. Jaydevi plus 1/24 which he got from Smt. Prabhavati totalling to 2/3. Similarly the share of Lajesh plaintiff became 1/12 which she received from Jagan Verma plus 5/12 which she received from Smt. Jaydevi and Smt. Prabhavati i.e. 1/3. In this way the share of the plaintiff in the agricultural land became 1/3 and that of Ramesh 2/3.
16. As far as the house property is concerned there is also not much difference because after the death of Bhagwan Prasad which took place in 1952 the property went to the heirs according to the old Hindu Law which was prevalent prior to the enforcement of Hindu Succession Act. The record shows that the property of Bhagwan Prasad was self acquired property according to the Hindu law it devolved after his death upon the heirs mentioned in Article 43 of the Principles of Hindu Law by D.F. Mulla. According to it son, grandson (son's son) and great grand son (son's son's son) and after 14-4-1937 the widow, predeceased son's widow and predeceased son's predeceased son's widow succeeded simultaneously. Here in the present case, on the death of Bhagwan Prasad son and grandson and the widow were alive. Thus, they took simultaneously but the widow got a limited interest in the estate of her husband. On the death of the widow the estate did not go to her heirs but to next heirs of her husband, technically called reversioners. The position, however, changed as after the enforcement of Hindu Succession Act Section 14 conferred full heritable capacity on a female heir in respect of all property acquired by her whether before or after the commencement pf the Act. In this view of the matter after the death of Bhagwan Prasad which took place in 1952 his son Jagan Verma, grandson Ramesh Verma and the widow Smt. Jaydevi succeeded 1/3 each but the estate of the widow was only a limited estate. However, after the enforcement of the Hindu Succession Act by virtue of Section 14 she became full owner. Jagan Verma predeceased Smt. Jaydevi. He died in 1967. Hence his share went to his son Ramesh Verma, daughter Lajesh Verma, widow Smt. Prabhavati and mother Smt. Jaydevi in equal shares i.e. 1/12 each. Ramesh Verma and Smt. Jaydevi had already 1/3 share each and as such their share became 5/12. The remaining heirs i.e. Lajesh Verma and Smt. Prabhavati had 1/12 each. When Smt. Jaydevi died in 1972 her 5/12 share went to her heirs as she had become absolute owner by virtue of Section 14 of the Hindu Succession Act. Her share devolved upon Ramesh Verma and Lajesh Verma equally i.e. 5/24 each. When Smt. Prabhavati died in 1984 her share which was 1/12 which she inherited from her husband Jagan Verma went to Ramesh Verma and Lajesh Verma i.e. they got 1/24 each. If we sum up the shares received by Ramesh Verma and Lajesh Verma as pointed out above, it transpires that 1/3 was from Bhagwan Prasad, 1/12 from Jagan Verma, 5/24 from Smt. Jaydevi and 1/24 from Smt. Prabhavaii which comes to 2/3. Similarly the share of Lajesh when added it comes to 1/12 from Jagan Verma, 5/24 from Smt. Jaydevi and 1/24 from Smt. Prabhavati i.e. 1/3. Consequently it is established that in accordance with law the share of plaintiff Lajesh Verma comes to 1/3 and that of Ramesh Verma to 2/3. I have already said above with respect to agricultural land mm same share was inherited by these two persons. I, therefore, hold that Lajesh Verma had 1/3 share and Ramesh Verma 2/3 in the entire property in dispute.
17. The learned counsel for the defendant contended that by virtue of Section 23 of the Hindu Succession Act the plaintiff had no right to claim partition with respect to dwelling house. Section 23 runs as under :
"23. Where a Hindu intestate has left surviving him or her both a male and female heirs specified in Class I of the Schedule and his or her property includes a dwelling house, wholly occupied by members of his or her family, then, notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entiled to a right of residence therein.
Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling house only if she is unmarried or has been deserted by or has separated from her husband or is a widow."
There cannot be any quarrel about the principle of law enunciated u/Section 23 of the Hindu Succession Act. Under this provision if the property includes a dwelling house wholly occupied by members of his or her family, then the right of the female heir to claim partition of dwelling house shall not be available. She will be entitled to a right of residence. Where she is a daughter she is entitled to a right of residence only if she is unmarried or has been deserted by or has separated from her husband or is a widow. It must be observed that for the application of this section the words underlined by me i.e. a dwelling house wholly occupied by members of his or her family are important. The expression "dwelling house wholly occupied" have not been defined in the Act. In the commentary on Hindu Law by D.F. Mulla 15th edition 1982 reprinted in 1986 page 1033 it has been pointed out that "It is, however, not necessary that there must be actual residence in the dwelling house". In this very commentary it has also been pointed out that the house must be wholly occupied by the members of the family and the restriction on the right to claim partition will not operate for instance where it is only partly occupied and partly or substantially let out to tenants. The inhibition laid down in this section cannot apply if the house is partly occupied by a tenant. In this back-ground we have to go through the evidence on record. The plaintiff Lajesh Verma in her statement stated that during the life time of Bhagwan Prasad the disputed property was in the shape of a Bagicha out of which there was a house (Kothi) and two pators. The house was situated by the side of the road which was used for residence purposes of her Devar, her mother-in-law late Parwatibai which was sold by her father Jagan Verma. She further stated that the Kothi which was in the disputed Bagicha and the Pator was let out to tenant by Bhagwan Prasad and Jagan Verma during their life time. During the life time of Bhagwan Prasad Pator was let out on Rs.20/- p.m. and the Kothi on Rs. 100/- or Rs. 150/- per month. During the life time of Jagan Verma it fetched some income. Defendant Ramesh Verma in para 5 of his statement stated that in the disputed property there was a Kothi in which there were 8 rooms besides Chauk measuring 20' x 20'. This Kothi was inside the Bagicha. The entire Bagicha was 2 1/2 bigha. Besides Kothi, there was a petrol pump and ice-factory and Baba Motors and woden Tal. He specifically stated that in the Kothi tenant resided. He got it evicted three months before. In 1970 Town and Planning Office was there in the Kothi at Rs. 230/- p.m. It remained on rent for 3 or 4 years. Prior to it one Sharma was residing who paid Rs. 200/- p.m. and he resided for four years. The Town & Planning Office left in 1974-75 and thereafter he let out to one Totaram for Rs. 500/- p.m. and he remained tenant till 1988. Thereafter he filed a suit for eviction and succeeded. He further stated that now he used to let out for marriage purposes. The rent depends upon a party. He charged Rs. 400/- per day. Only one Barat could stay. Thus, it is evident that it cannot be said by any stretch of imagination that the house was wholly occupied for residence purposes by family or family members in order to negate the claim of partition by a female heir, I, therefore, conclude that the contention of the learned counsel for the defendant that the plaintiff cannot seek partition of the house is unfounded. It is therefore, repelled.
18. In view of what has been stated above, the plaintiff is entitled to a decree for partition with respect to her 1/3 share in addition to the other relief claimed. The plaintiff has claimed a relief of partition and separate possession of 1/3 to which she is entitled. She has also claimed a decree for mesne profits in respect of usufruct of the property involved. The property has been dealt with by the defendant Rakesh Verma throughout. Hence she is entitled to it also. The learned Court below has decreed the suit and directed that enquiry be made with respect to mesne profits, and directed that a preliminary decree be drawn for partition as well as mesne profits. This part of the decree has to be upheld with the modification that instead of 1/12 share she is held to be entitled to 1/3 share. Consequently the appeal filed by the plaintiff is allowed and the two other appeals are disposed of accordingly. His directed that a preliminary decree be drawn for partition and separate possession of 1/3 share of the plaintiff and for mesne profits to the extent of plaintiff's share which has to be calculated from the date of the suit till the delivery of possession. Costs of all the appeals shall be borne by the parties under the circumstances. All the three appeals are decided accordingly. Let a copy of the judgment be placed on the record of each case.