Ashok Lakhani v. Gaon Sabha — 1985 DIGILAW 395 (ALL)

JUDGMENT P. Singh, Member - This second appeal is directed against the order and decree dated 20-7-81 passed by Sri Ramesh Chandra Dixit, Additional Commissioner, Agra Division, Agra, in appeal no. 73 of 1980-81 of district Mathura, arising out of a suit under section 229-B of U.P. Act I of 1951. 2. Briefly stated, the facts of the case are that Ashok Lakhani filed a suit under section 229-B of the U. P. Act I of 1951 alleging that his maternal grandfather came in possession over plot no. 78 (area 4.80 acres) situate at village Maholi, district Mathura, through a sale deed executed by defendant no. 1 Jaggo on 6-8-68, that Beerumal executed a will in his favour on 8-4-69 and that after the death of Beerumal he became bhumidhar of the land in suit, that the name of defendant no. 1 was still continuing in revenue records, that Berumal moved an application for mutation which was rejected on 26-8-77 and hence this suit was filed, that defendant no 1 had no right or title in the land in suit after the execution of the sale deed. The suit was contested by defendant no. 1 Jaggo, alleging that the plaintiff was not the grandson of Berumal, that Berumal had not executed the will, that the will was a forged one, that Berumal died in 1969 and he did not execute any will in the year 1969. that on 6-8-68 defendant no. 1 was sirdar of the land and did not deposit the ten times of land revenue that he did not put his thumb impression on any application for deposit of ten times the rent, that he was declared bhumidhar of the land in suit, that he could have not sold out this land for such a meagre consideration, that the land was being sold at the rate of Rs. 18,000/- per Bigha in 1968 and the consideration amount of this land would come to Rs. 1,35,000/- and the sale deed was void in view of the provisions of section 35 of the U. P. Stamps Act, that Berumal took the land on rent for one year for taking out earth for brick-kiln, and that the suit was barred by section 34 (5) of the land revenue Act. 1,35,000/- and the sale deed was void in view of the provisions of section 35 of the U. P. Stamps Act, that Berumal took the land on rent for one year for taking out earth for brick-kiln, and that the suit was barred by section 34 (5) of the land revenue Act. The trial court dismissed the suit on 17-2-81 and the appeal of the plaintiff was also dismissed by the lower appellate court on 20-7-81. 3. The learned counsel for the appellant submits that the learned Additional Commissioner acted without jurisdiction in rejecting the will for want of its being registered, that the will was proved by the marginal witnesses that Jaggo was bhumidhar on the date the sale deed was executed as he had deposited the ten times land revenue, that Jaggo had not applied for cancellation of the Sanad, that the sale deed was valid one and that the view taken by the learned additional commissioner that there was only an agreement with Jaggo was based on surmises, that the courts below had wrongly held that the will was only thumb-marked, while it was signed, that the bhumidhari rights accrued from the date of deposit of ten times land revenue as such Jaggo was bhumidhar on the date he executed the sale deed. 4. The learned counsel for the respondents, in reply submits that the finding of the learned Additional Commissioner that there was no sale deed was a finding of fact and this could not be interfered with at this stage, and that Beerumal did not make any application for mutation on the basis of the sale deed in his life time, that the signature on the application for the deposit of ten times the land revenue was forged one, that the will was also forged one, and that the suit was barred by section 34 (5) of the land revenue Act as no application for mutation had been moved on the basis of the alleged sale deed executed in favour of Beerumal. The learned counsel placed reliance on AIR 1965 All 154 , AIR 1949 Madras 889 and AIR 1968 Mysore 36, and regarding the proving of will he placed reliance on AIR 1977 SC 74 (Supra), their lordships of the Supreme Court have quoted the propositions of the court speaking through Gajendragadkar, J ; in R. Venkatachala Iyengar v. B.N. Thimma Jamma, ( AIR 1959 SC 443 ), as under :- 1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of its satisfaction of the prudent mind in such matters. As in the case of proof of other documents so in the case of proof of wills one cannot insist on proof with mathematical certainty. 2. Since section 63 of the succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 58 of the evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if thereby an attesting witness alive, and subject to the process of tire court and capable of giving evidence. 3. Unlike other documents the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstance in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will. 4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble, mind, an unfair and unjust disposition of property, propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. A shaky signature, a feeble, mind, an unfair and unjust disposition of property, propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or testator who would normally receive their due share in his estate were dis-merited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator. 5. It is in connection with wills the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied, fully that the will has been validly executed by the testator. 6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the produced to remove all reasonable doubts in the matter." 5. The learned counsel for the appellant submits that the testator could execute will in favour of any person of his choice. For this, he places reliance on 1973 R.D. 444. He also submits that the will was genuine, placing reliance on AIR 1971 SC 2236 . 6. The sale deed dated 6-8-68 is on the trial courts file, which is registered one. For this, he places reliance on 1973 R.D. 444. He also submits that the will was genuine, placing reliance on AIR 1971 SC 2236 . 6. The sale deed dated 6-8-68 is on the trial courts file, which is registered one. This sale deed was executed in respect of plot no. 78 (area 4.80 acres). From the extract of khatauni 1375 to 1377 Fasli, it appears that ten times of land revenue was deposited on 1-8-68 in respect of plot no. 78 and the bhumidhari Sanad was issued on 18-8-68, From paper no. 104-A on the trial courts file it appears that mutation application of Beerumal was rejected holding that the land was sirdari in the revenue papers. The learned lower appellate court found that Jaggo could not execute a sale deed in respect of sirdari land, and that the name of Beerumal could not be recorded in the revenue records on the basis of a sale deed concerning sirdari land. The learned lower appellate court also rejected will on the grounds that it was not registered one, that addresses of the witnesses were not mentioned therein, that it was written in the will that the testator had signed the will but it contained thumb-impressions, that the will was not genuine and that he could not execute the will in respect of sirdari land. The learned Additional Commissioner found that Jaggo was not a bhumidhar on the day of the execution of the sale deed. This finding relates to the finding of fact based on the appreciation of evidence on record and, hence I am of the view that Jaggo was sirdari on the date of the execution of the sale deed which was executed against the provisions of law, and on the basis of this sale deed no rights could accrue to Berumal. 7. The plaintiff is claiming his right and title on the basis of will executed in his favour by Berumal. The learned Additional Commissioner committed an error when he held that it had not been explained by the plaintiff as to why the will was executed in favour of Ashok Lekhani when Berumal had four sons. In such a circumstances, the learned lower appellate court should have strictly examined the evidence regarding the proving of the will. The learned Additional Commissioner committed an error when he held that it had not been explained by the plaintiff as to why the will was executed in favour of Ashok Lekhani when Berumal had four sons. In such a circumstances, the learned lower appellate court should have strictly examined the evidence regarding the proving of the will. Since the property was alleged to have been acquired by Berumal, he had every right to execute a will in favour of a person of his choice. The plaint was amended by expunging the word 'registered' before 'wasiyat' in para 2 of the plaint, and the learned additional commissioner should not have recorded any finding on the basis of this word 'registered' which was already ordered to be deleted by trial court. Since the land in question was sirdari land. Berumal had no right to execute a will in respect of sirdari land, as bequests by will of sirdari land was prohibited under the provisions of section 170 of U. P. Act I of 1951. In view of this, it is irrelevant to go into the contention of the parties regarding the genuineness of the will executed in favour of Ashok Lakhani Since the application for mutation had already been moved and was rejected by the Tahsildar, the question of the suit being barred under section 34 (5) of the U. P. Land Revenue Act does not arises in this case. 8. The result is that this second appeal fails and is hereby dismissed.