Chattisgarh High Court
Dinkar Rao vs Bhaguni Bai on 17 November, 2011
HIGH COURT OF CHATTISGARH AT BILASPUR
Second Appeal No 559 of 1995
Dinkar Rao
...Petitioners
Versus
1 Bhaguni Bai
2 Sajan Bai
3 Sushila Bai
4 Kaushalya Bai
5 Bhagabai
...Respondents
! Mr Bhaskar Payashi counsel for the appellant
^ Mr BP Sharma with Mr Sameer Uraon counsel for the respondents
CORAM: Honble Mr TP Sharma J
Dated: 17/11/2011
: Judgement
JUDGMENT
Second Appeal under Section 100 of CPC Delivered on 17th November 2011
1. By this second appeal under Section 100 of the Code of Civil Procedure, 1908 (for short `CPC'), the appellant has challenged legality and propriety of the judgment & decree dated 5.4.1995 passed by the Additional District Judge, Dhamtari, then District Raipur, in Civil Appeal No.1A/91, reversing the judgment & decree passed by the Civil Judge Class-I, Dhamtari, in Civil Suit No.151A/85, whereby the Civil Judge Class-I has dismissed civil suit filed by respondents No. 1 to 4/plaintiffs for declaration of partition, possession and permanent injunction and by allowing the appeal the lower appellate Court has decreed the suit in favour of respondents No.1 to 5.
2. The present second appeal was admitted on 16.10.96 on the following substantial questions of law:-
i) "Whether in view of the fact, PW-1, Sajan Bai admitted in her statement that Kushalrao was in sound physical condition prior to one month of his death?
ii) Whether the finding recorded by the lower appellate Court is perverse?
iii) Whether the lower appellate Court, in view of admission of PW-1, Sajan Bai the burden of proof on the appellant was wrongly placed?
3. As per plaint allegation, nazul land shown in map attached with the plaint situated at Banspara, ward Dhamtari was lease out to Kushalrao, father of the respondents and maternal grandfather of the present appellant. Kushalrao died on 15.5.1984. He was suffered from paralysis; he was not physically and mentally sound. After death of Kushalrao, respondents No.1 to 4 came to know that one document in the shape of will allegedly executed by Kushalrao in favour of the present appellant was in possession of the present appellant. Considering the aforesaid document, suit for declaration of share and possession was filed by respondents No.1 to 4. By filing written statement the appellant and respondent No.5 i.e. son and mother had denied adverse allegation and have claimed that Kushalrao was in a fit state of mind, he has validly executed will in favour of the present appellant and has handed over the property. Even at the time of his death he was residing with the appellant.
4. After providing opportunity of hearing to the parties, learned Civil Judge Class-I, Dhamtari has dismissed the suit on the ground that will has been validly executed and respondents No.1 to 4 are not entitled to share over the property. Same was challenged before the lower appellate Court and by the judgment & decree impugned the lower appellate Court has decreed the suit in favour of respondents No.1 to 5.
5. I have heard learned counsel for the parties, perused the judgment & decree impugned, judgment & decree of the trial Court and records of the Courts below.
6. Learned counsel for the appellant vehemently argued that the present appellant has proved the valid execution and attestation of will by cogent evidence. Even the respondents have admitted in their evidence that at the time of execution of will Kushalrao was in a fit state of mind and physically fit and he was competent to execute the document and will, but the lower appellate Court has illegally arrived at a finding that will has not been validly executed and thereby the lower appellate Court has committed illegality. Learned counsel further argued that evidence and admission of respondent No.2 Sajan Bai is sufficient for drawing inference that Kushalrao was in sound physical condition prior to one month of his death and the appellant has discharged his burden to prove the will, but it has been illegally placed upon the appellant.
7. On the other hand, learned counsel for the respondents opposed the appeal and argued that in order to exclude the natural heirs of Kushalrao from succession, the appellant was under obligation to prove genuineness of will and due execution of will, but the appellant has not adduced any evidence to prove the valid execution of will and valid attestation of will. In absence of such evidence the lower appellate Court has rightly decreed the suit in favour of heirs of Kushalrao.
8. Learned counsel placed reliance in the matter of Bharpur Singh and others v. Shamsher Singh1 in which the Supreme Court has held that in case of will executed in favour of the person other than heirs with whom the deceased was residing last time he is required to prove the genuineness and due execution of will and burden to prove such genuineness and due execution of will is upon propounder of the will. Leaned counsel further placed reliance in the matter of S.R.Srinivasa and others v. S.Padmavathamma2 in which the Supreme Court has also held that admission about making of will does not amount to admission of due execution and genuineness of will and propounder is required to prove due execution of will.
9. As per undisputed facts, respondents No.1 to 5 are heirs of Kushalrao. Respondent No.5 is mother of the present appellant. The appellant is maternal grandson of Kushalrao. Evidence adduced on behalf of the parties also reveal that Kushalrao was suffered from paralysis, he was residing with the appellant and respondent i.e. with his daughter and maternal grandson at the time of execution of will and till his death. Ex.D/1 is unregistered will. Sajan Bai (PW-1) has admitted in her evidence that one month before the death of Kushalrao he was physically normal. In order to prove the due execution and attestation of will, the appellant has examined himself and Rudreshwarrao (DW-2) alleged attesting witness. As per appellant's evidence, Kushalrao has given will to him. His maternal grandfather Kushalrao and his Advocate K.N.Khare directed typist Malharrao that how to prepare the will, then as per their direction, Malharrao typed the will, thereafter witness Manrakhanrao and witness Rudreshwarrao (DW-2) signed upon the will, then Kushalrao signed on will Ex.D/1, Advocate K.N.Khare also singed on will Ex.D/1. In para 6 of his evidence he has further explained that initially Advocate K.N.Khare prepared the will as per instruction of Kushalrao, it was given to Malharrao for typing, then he typed as Ex.D/1 and original draft was torn. Rudreshwarrao (DW-2), alleged attesting witness of the will has deposed that Kushalrao has executed will Ex.D/1, he has signed on the will, Kushalrao has also singed on the will, it also reveals the signature of Advocate K.N.Khare who has signed before him. In para 4 of his cross-examination he has admitted that Kushalrao directed Dinkarrao to get it typed the will. His physical and mental condition was not so bad. Firstly Kushalrao signed on the will and thereafter they have singed on the will.
10. As per evidence of appellant Dinkar Rao (PW-1), typist Malharrao has prepared the will on the basis of direction given by Kushalrao and Advocate K.N.Khare, but as per para 6 of his evidence firstly rough draft was prepared by Advocate K.N.Khare at the instance of Kushalrao which was typed by Malharrao. As per evidence of Rudreshwarrao (DW-2), he has signed on Ex.D/1, Kushalrao and Advocate K.N.Khare have also singed on Ex.D/1. As per para 4 of his evidence, Kushalrao directed the appellant to get it typed the will.
11. Ex.D/1 is unregistered will. As per evidence of the aforesaid witnesses, it was prepared in the court premises. As per evidence of appellant Dinkar Rao, initially draft was prepared by Advocate K.N.Khare and it was typed by Malharrao, but as per evidence of Rudreshwarrao (DW-2)), Kushalrao directed Dinkar Rao to get it typed the will. Rudreshwarrao (DW-2) has not deposed anything to show that initially draft will was prepared at the instance of Kushalrao at the instance of Kushalrao by Advocate K.N.Khare and it was simply typed. It appears from the evidence of Rudreshwarrao (DW-2) that virtually will was prepared and typed at the instance of the present appellant on the direction of Kushalrao. Both the evidence are contradictory to each other.
12. As held by the Supreme Court in the matter of Bharpur Singh (supra), the appellant was under obligation to prove genuineness and due execution of will, disentitled the natural heirs from succession and as held by the Supreme Court in the matter of S.R.Srinivasa (supra), admission of execution of will is not sufficient to prove the valid execution of will.
13. Evidence adduced on behalf of the appellant is contradictory to each other and is not sufficient to prove genuineness and due execution of will including valid attestation of will. In these circumstances, physical and mental fitness of Kushalrao and admission relating to will by the respondents would be of no help for proving due and guanine execution of will by Kushalrao. In absence of any proof of due execution and genuineness of will the lower appellate Court has decreed the suit as per rule of succession.
14. Consequently, substantial question of law No.1 is decided as redundant for the decision of this appeal, substantial question of law No.2 is decided as negative and substantial question of law No.3 is decided as negative and held that heavy burden was on the appellant to prove genuineness of will which he has failed to prove.
15. On the basis of aforesaid finding on substantial questions of law formulated for the decision of this appeal, I do not find any substance in the appeal. The appeal is liable to be dismissed and it is hereby dismissed.
16. Parties shall bear their own costs.
17. Advocate fee as per schedule.
18. Decree be drawn accordingly.
JUDGE