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2004 DIGILAW 287 (RAJ)

Vallabh Alias Ginnu Narain v. Ginni Devi

2004-02-25

A.C.GOYAL

body2004
Honble GOYAL, J.–This S.B. Civil First Appeal by the plaintiff has been preferred against the judgment and decree dated 2.5.1990, whereby learned Additional District Judge No. 5, Jaipur City, Jaipur, dismissed the suit of the plaintiff for possession and mense profits. (2). Briefly stated the facts of the case are that the plaintiff filed a suit for possession and mesne profits against the defendant respondent on 18.4.1978, with the averments that the plaintiff is the son of Shri Radha Vallabh-nephew of deceased Kheri Lal. (3). That on 2nd May 1946, Shri Kheri Lal executed his last Will. According to the Will Kheri lal bequeathed some properties in favour of his daughter (the defendant in this case) and the remaining properties in favour of the plaintiff. While giving details of the properties bequeathed vide this Will, it has been pleaded that some portion of the House No. 285 was given to the defendant and the remaining Haveli No. 285 was given to the plaintiff. In addition to this, the Haveli No. 283 was also given to the plaintiff. Both the properties are situated in Jaipur. (4). That Shri Kheri Lal died on 5.05.1946. At that time Smt. Pura Devi, wife of Kheri Lal, the defendant and Smt. Chota Devi the widow of Kheri Lals younger brother were alive. According to the Will Smt. Chota Devi and Smt. Pura Devi were given right of residence in the house bequeathed by Will. It was further provided in the Will that the plaintiff would provide appropriate amount for their maintenance and in case the plaintiff fails to do so both of them would be entitled to recover the rent from the tenants for their maintenance but they would have no right to alienate the said property. (5). That both Smt. Pura Devi and Smt. Chota Devi refused to receive maintenance amount from the plaintiff and expressed their desire to receive the rent from the tenants and they continued to reside in this house till they expired. Smt. Pura Devi died on 14.12.1970 while Smt. Chota Devi died on 10.11.1974. (6). That the defendant who was residing at Beawer came to Jaipur and started living in the house left by Shri Kheri Lal. The plaintiff after the death of Smt. Pura Devi and Smt. Chota Devi asked the defendant to vacate the premises but she refused to do so. (7). (6). That the defendant who was residing at Beawer came to Jaipur and started living in the house left by Shri Kheri Lal. The plaintiff after the death of Smt. Pura Devi and Smt. Chota Devi asked the defendant to vacate the premises but she refused to do so. (7). That in January 1974, the plaintiff came to know that the defendant after the death of her mother and in the life time of Smt. Chota Devi got rent notes executed from all the tenants and she is receiving Rs. 300/- as monthly rent from the tenants. The plaintiff served a notice upon the defendant on 31.3.1975 and in reply to this notice the defendant even denied the execution of any Will, hence the suit. (8). The defendant in her written statement denied the pedigree as mentioned in para one of the plaint, any relationship of the plaintiff with her late father and all the facts relating to execution of the Will. It was pleaded by her that her father was ill for last six months and became unconscious about one week prior to his death on 5.5.1946 and thus his father was not in a position to execute any Will. While giving the facts against the execution of any Will, it was pleaded that the suit is beyond limitation. (9). On the basis of the pleadings following issues were framed. 1- vk;k [ksjh yky th us vius thoudky esa fnukad 2-5-46 dks fof/kor olh;rukek rgjhj o rdehy djk;kA 2- ;fn rudh ua-1 dk fu.kZ; oknh ds i{k esa gks rks D;k [ksjhyky dh e`R;q ds ckn okn i= ds en ua-4 esa of.kZr lEifr dk ,d ek= Lokeh o vf/kdkjh oknh gqvkA 3- vk;k [ksjh ykyth dh ofl;r ds vuqlkj oknh us okn i= ds layXu uDkk dks fn[kk;s x;s 1 ls 29 uoEcj rd ds edkukr esa iwjk nsoh o NksVk nsoh dks jgus dh btktr ns nh vkSj gosyh ua. 285 ds ks"k edkukr ds fdjk;snkjku ls rFkk gosyh ua- 295 ds leLr fdjk;snkjku ls fdjk;k olwy djus vkSj vius xqtkjs esa ;g jkfk [kpZ djus dh btktr Jherh iwjk nsoh o NksVk nsoh dks nsdj fdjk;snkjku ls fdjk;kukek Jherh iwjk nsoh ds fgr esa rgjhj o rdehy djk fn;sA -------------oknh 4- vk;k izfroknh us viuh ekrk Jherhiwjk nsoh dh e`R;q ds ipkr~ fcyk bYe oknh mDr ofl;r ds rgr oknh ds fgLls esa vkbZ lEifr ds leLr fdjk;snku ls fdjk;sukesa esa vius fgr esa fy[kok fy;s vkSj NksVk nsoh dh e`R;q ds ckn ls bu fdjk;snkjku~ ls vuqfpr :i ls 300@& izfrekg fdjk;k olwy dj jgh gSA ----------oknh 5- vk;k oknh i= ds en ua-4 esa of.kZr edkukr dk dCtk o 10]800@& :- olwykqnk fdjk;k izfroknh ls oknh dks izkIr djus dk vf/kdkjh gSA ----------oknh 6- vk;k ekfy;r nkok de dke djh xbZ gS vkSj jde de nh xbZ gSA ----------izfroknh 7- vk;k nkok fe;kn ckgj gSA ----------izfroknh 8- vk;k oknh ds fo:) elyk ,LVkiy o ,DohlsUl ck/kd gSA ----------izfroknh (10). After recording the evidence of both the parties, the learned trial Judge vide impugned judgment while deciding all the issues except issue No. 6 against the plaintiff dismissed the suit with costs, hence this appeal. (11). I have heard learned counsel for the parties. On the submissions made by learned counsel, following points arise in this appeal:- ``1. Whether the Will Ex.1 was executed by Shri Kheri Lal in sound and disposing state of mind and thus the said Will was true and genuine ? 2. Whether irrespective of the Will Ex.1, the defendant became the absolute owner of the disputed property in view of the provisions of Section 14(1) of the Hindu Succession Act 1956 ? 3. Whether the suit filed by the plaintiff was within limitation ? (12). Section 63(c) of the Indian Succession Act, 1925 (hereinafter referred to as `the Act of 1925) provides the mode of execution of the Will while Section 68 of the Indian Evidence Act 1872 (hereinafter referred to as `the Act of 1872), provides the mode of proof of execution of document required by law to be attested. (12). Section 63(c) of the Indian Succession Act, 1925 (hereinafter referred to as `the Act of 1925) provides the mode of execution of the Will while Section 68 of the Indian Evidence Act 1872 (hereinafter referred to as `the Act of 1872), provides the mode of proof of execution of document required by law to be attested. The said provisions are as under:- ``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 of 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: [Provides 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.] FIRST POINT According to learned counsel for the plaintiff-appellant the execution of the will Ex.1 was proved in accordance with the Provisions of Section 68 of the Act 1872 as one of the attesting witness P.W.7 Shri Badri Narain Sethi has proved its execution in accordance with the provisions of Section 63(c) of the Act 1925 and there was no reason to discard his evidence. It was also contended that none of the eleven circumstances as relied upon by the learned trial Judge was a suspicious circumstance and it is not a case of total exclusion of the legal heirs of late Shri Kherilal. It was also contended that none of the eleven circumstances as relied upon by the learned trial Judge was a suspicious circumstance and it is not a case of total exclusion of the legal heirs of late Shri Kherilal. He referred the evidence on record and submitted that the plaintiff proved execution of the will Ex.1 and placed reliance upon Gopinath Sunderlal vs. Chunnilal and Another (1), Ishwardeo Narain Singh vs. Kamta Devi and Others (2), Shashi Kumar Banerjee and Others vs. Subodh Kumar Banerjee (3), Rajlakshmi Dassi Bechulal Das vs. Krishna Chaitanya Das Mohanta (4), Madhukar D. Shende vs. Tarabai Aba Shedage (5), and Ramabai Padmakar Patil (dead) Through LRs. & Others vs. Rukminibai Vishnu Vekhande & Ors. (6). On the other hand, learned counsel appearing for the defendant- respondent contended that the decision of the trial court is based on proper appreciation of evidence and the plaintiff failed to remove the suspicious circumstances surrounding the execution of the will. Reliance is placed upon Jawanmal vs. Achaldas (7), Ramchandra Rambux vs. Champabail (8), Motilal & Anr. vs. Anandi bai & Anr. (9), Bhagwan Kaur vs. Kartar Kaur & Others (10), Guro (Smt.) vs. Atma Singh and Others (11), Gurdial Kaur and Others vs. Kartar Kaur and Others (12), H. Venkatachala Iyengar vs. B.N. Thimmajamma and Others and (13), Gaindi Lal vs. Bhura Mal (14). (13). I have considered the rival submissions in the light of the evidence and the judgments cited above. The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Sec. 63(c) of the Act 1925. Where it appears that the propounder has taken prominent part in the execution of the will which confers a substantial benefit on him, that itself is generally treated as a suspicious circumstance attending the execution of the will. Where there are suspicious circumstances, the onus is on propounder to explain them to the satisfaction of the court before the court accepts the will as genuine one and in such a case the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. (14). Where there are suspicious circumstances, the onus is on propounder to explain them to the satisfaction of the court before the court accepts the will as genuine one and in such a case the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. (14). In the present case while giving details of the pedigree, the plaintiff has come with a case that he is son of Shri Radha Vallabh, who was nephew of deceased Kheri Lal i.e. the testator. The defendant in her written-statement denied this pedigree as well as the fact that Shri Radha Vallabh was the nephew of Kheri Lal. It was also denied that Jai Narain and Moti Ram were sons of Laxmi Narain. As per written statement Moti Ram was son of one Kripa Ram. It was pleaded that Nanag Ram was son of Moti Ram and Govind Ram was son of Nanag Ram and both Kheri Lal and Kishan Lal were two sons of Govind Ram. Nanag Ram had no son named Sheo Chand and late Kheri Lal was in no where related to Laxmi Narain and thus the entire pedigree is false. (15). Now coming to the evidence, P.W.1 the plaintiff Shri Vallabh stated that the pedigree mentioned in the plaint is correct but in cross-examination he pleaded ignorance about his ancestors as stated in the plaint. It was also stated by him that he knows only this fact that Govind Ram and Nanag Ram were respectively father and grand-father of late Shri Kheri Lal. Thus the plaintiff failed to prove this pedigree and the fact that his father was nephew of Shri Kheri Lal. It was held by Division Bench of this Court in Jawanmals case (supra), that in order that a person may succeed in getting letters of administration on the basis of relationship, he has to prove the relationship on which he relies, and also prima facie that there is no nearer heir alive. It was also held that where the witnesses produced to prove the correctness of pedigree were too young to have personally see the common ancestor and they did not disclose the source of their knowledge, their evidence could not be relied on and thus it was held that pedigree was not proved. It was also held that where the witnesses produced to prove the correctness of pedigree were too young to have personally see the common ancestor and they did not disclose the source of their knowledge, their evidence could not be relied on and thus it was held that pedigree was not proved. The defendant Smt. Ginni Devi is daughter of late Shri Kheri Lal. She stated that there was none in the name of Laxmi Narain as her fathers ancestors. She denied any relationship of her father with the plaintiff as well as plaintiffs father. The oral testimony of other witnesses examined on behalf of both the parties is not relevant on this aspect. Thus the plaintiff failed to prove the pedigree as well as this fact that his father was nephew of late Shri Kheri lal. (16). I have gone through Ex.1. The reasons for executing this will in favour of the plaintiff as stated in this will are that the testator i.e. Kheri lal had no son, he has become 65 years old, often remains ill, the plaintiff Vallabh is the son of Radha Vallabh, his nephew in relation, the plaintiff Vallabh is serving him in his old age and he has a hope that he will serve him, his wife and his brother Kishan Lals wife in future also and thus being happy with the plaintiff he is going to execute this will in his favour. (17). As stated here-in-above, one of the reasons that plaintiffs father was nephew of Shri Kheri Lal has not been found proved. Now it has to be seen as to whether the reasons favourable to the plaintiff for execution of the said will in his favour have been proved or not ? In para 6 of the plaint, it is pleaded that Smt. Pura Devi and Smt. Chota Devi declined to accept the maintenance amount from the plaintiff and expressed their desire to receive the rent from the tenants in accordance with the terms and conditions contained in the will Ex.1. It is undisputed that Smt. Pura Devi died in December 1970 while Smt. Chota Devi died in November 1974. It is undisputed that Smt. Pura Devi died in December 1970 while Smt. Chota Devi died in November 1974. The plaintiff admitted this fact in examination-in-chief that both Pura Devi and Chota Devi stayed with him only for 15-20 days after the death of Kheri Lal and both of them expressed their desire that they would reside separately from the plaintiff and would receive the rent from the tenants. It was also admitted by him that soon after the death of Kheri Lal, Smt. Pura Devi started receiving the rent from the tenants. It was also admitted by him that the defendant vide Notice Ex.3 asked him to pay the rent after four months of the death of Kheri Lal. He further stated that the defendant took over the possession of the entire premises and this fact came to his knowledge only in January 1975 and thereafter he got a notice Ex.4 served upon her through advocate. He further stated that all the expenses in the treatment of Kherilal and after his death were borne out by Smt. Pura Devi. He also admitted this fact that Smt. Chota Devi was in a paralytic condition for about a period of four years and the entire expenses were borne out by the defendant Smt. Ginni Devi and her husband and he (the plaintiff) was not in speaking terms with them. Thus this evidence of the plaintiff himself clearly goes to show that he failed to prove these facts also that he ever served late Shri Kheri Lal and he served wife of Kherilal as well as his brother Kishal Lals wife at any point of time. It is also significant to say here that the plaintiff even did not plead these facts that he used to serve Shri Kheri Lal and also served his wife as well as his brothers wife after his death. Therefore, the second important reason for executing the will in favour of plaintiff that the plaintiff was serving Shri Kheri Lal in his old age and he would continue to serve Kheri Lal, his wife and his brothers wife in future also goes away. Therefore, the second important reason for executing the will in favour of plaintiff that the plaintiff was serving Shri Kheri Lal in his old age and he would continue to serve Kheri Lal, his wife and his brothers wife in future also goes away. In view of the entire discussion made here-in-above, the reasons for execution of this will in favour of the plaintiff have not been proved at all by the plaintiff and thus the very basis for execution of the said will in plaintiffs favour is not proved. (18). A careful scrutiny of the evidence reveals that even the execution of the said will in accordance with the provisions of law is not proved. There are in all nine attesting witnesses who had put their signatures on the Will Ex.1 according to the plaintiffs case. It is not in dispute that all except P.W. 7 Badri Narain Sethi had expired. P.W.2 Gapu Chand is the adopted son of attesting witness Diwan Shyam lal. P.W.3 Manmohan Lal is the son of attesting witness Devi Narain. P.W.4 Girdhari Lal is the son of attesting witness Diwan Bhanwar Lal. P.W.6 Hanuman Prasad is the son of attesting witness Ganga Pratap. All of them have identified the signatures of their respective fathers on this will Ex.1. Now comes P.W.7 Shri Badri Narain, who is said to be the one of the nine attesting witnesses. In examination-in- chief, he stated in accordance with the provisions of Section 63(c) of the Act 1925 that he put his signatures `P to Q on Ex.1 in presence of Shri Kheri Lal and under his instructions and Shri Kheri Lal put his thumb impression marked `A in his presence and at that time Shri Kheri Lal was mentally fit. But in cross- examination, he pleaded ignorance about each and every question put to him. He pleaded ignorance as to when Shri Kheri Lal died after execution of this document. He pleaded ignorance that prior to his death Shri Kheri Lal was ill since long. Although he was ill but he does not know about the nature of ailment. He also pleaded ignorance about the draft of this will, as to the scribe of this will and regarding the presence of other witnesses also. He pleaded ignorance that prior to his death Shri Kheri Lal was ill since long. Although he was ill but he does not know about the nature of ailment. He also pleaded ignorance about the draft of this will, as to the scribe of this will and regarding the presence of other witnesses also. He stated that he does not know as to whether Kheri Lal was not even able to speak for last ten days prior to his death and he did not have any talk with Kheri Lal at the time of execution of will. He also does not remember as to who were other witnesses who signed this document in his presence and he also does not remember as to whether the wife, daughter and son-in-law of Shri Kheri Lal were present or not at that time. He also does not remember the time and the contents of this will and the fact that whether this will was read over or not, although he admitted his relationship with the plaintiff. Learned counsel for the plaintiff-appellant contended that this will is dated 2.05.1946 while P.W.7 Badri Narain was examined during trial on 21.1.1980 and thus after a lapse of such long period it is natural to forget such facts. But keeping in view the surrounding circumstances of the execution of this will, the statement of only one alive attesting witness assumes much significance. As stated here-in-above he remembered these facts that he put his signatures upon the instructions of Kheri Lal and in his presence and Shri Kheri Lal put his thumb impressions in his presence but he pleaded ignorance about each and every question put to him in cross-examination and, therefore, his testimony can not be relied upon simply on the ground that his statement was recorded after a period of about 34 years. A perusal of the other evidence goes to show that Shri Kheri Lal was not physically and mentally fit to execute the said will. There is one important contradiction also with regard to place of execution of this will as according to the plaintiff, this will was executed on third floor of haveli No. 285 in a room facing east while according to P.W.7 Badri Narain the said will was executed in one room on the first floor. There is one important contradiction also with regard to place of execution of this will as according to the plaintiff, this will was executed on third floor of haveli No. 285 in a room facing east while according to P.W.7 Badri Narain the said will was executed in one room on the first floor. This contradiction assumes significance in view of the entire evidence and suspicious circumstances surrounding the execution of this will, although in Shashi Kumars case (supra), it was held that where the evidence of both the attesting witnesses to the will is that the will was executed in the after-noon on the date on which it purported to have been executed, a slight discrepancy in the evidence of these witnesses as to the time when the will was executed is not so serious as to destroy the value of their evidence. Thus even the execution of this Will is not proved as provided under Section 63(c) of the Act 1925, in this case. (19). The defendant Smt. Ginni Devi stated that her father Kheri lal was ill for about five to six months prior to his death as blood was oozing from his mouth and nose during that period and he was under the treatment of one Dr. Syed. It was also stated by her that her father remained unconscious for about ten days prior to his death and during those ten days neither he was able to speak nor able to recognise any person. D.W.2 Shri Rameshwar Prasad, D.W.3 Shri Shiv Shankar Sharma, D.W.4 Shri Kanhaiyalal and D.W.5 Shri Anand Swaroop all have corroborated the above statement of the defendant Smt. Ginni Devi and further stated that Smt. Ginni Devi, her mother and wife of younger brother of late Kheri Lal used to look after Shri Kheri Lal. All these witnesses have been cross-examined in detail but nothing adverse has come out and thus in view of such evidence it appears that Shri Kheri Lal was not in sound and disposing state of mind and thus the said will was not found rightly to be true and genuine. Even the plaintiff Shri Vallabh in cross-examination stated that Shri Kheri Lal was confined to bed for 10 to 15 days prior to his death as he was suffering from Bronchitis and was under treatment of Dr. Swaroop Narain Mathur. Even the plaintiff Shri Vallabh in cross-examination stated that Shri Kheri Lal was confined to bed for 10 to 15 days prior to his death as he was suffering from Bronchitis and was under treatment of Dr. Swaroop Narain Mathur. The burden to prove this issue was upon the plaintiff and thus it was his duty to prove that Kheri Lal was physically and mentally fit to execute this will but he failed to examine any doctor to prove this fact. As stated here- in-above P.W.7 Shri Badri Narain though admitted that Kheri Lal was ill but pleaded ignorance about the period of his illness and also the fact as to whether Shri Kheri Lal was unable to speak for about ten days before his death although he admitted this fact that he had no talk with Shri Kheri Lal at that time. Thus the trial court rightly observed that it was not proved that Shri Kheri Lal was in sound and disposing state of mind at the relevant time of execution of this Will. (20). Now, the submissions made by learned counsel for the appellant about eleven suspicious circumstances dealt with by the learned trial Judge are to be discussed. The first circumstance is that this will is neither on stamp paper nor registered one and why the signatures of the defendant as well as her mother and aunt were not obtained as they were present according to the statement of the plaintiff himself. In Ishwardeos case (supra), the Honble Supreme Court held that as there was nothing in law which requires the registration of a will and wills are in a majority of cases not registered at all and no inference against the genuineness of the will on the ground of its non-registration can be drawn. Therefore, the fact that the will is unregistered, may not be a suspicious circumstance but the presence of the wife of Shri Kheri Lal, his brothers wife as well as the presence of the defendant had been admitted by the plaintiff himself in his statement but he has given no explanation as to why signatures of none of them were not obtained on Ex.1. Thus, it is certainly a suspicious circumstance with regard to execution of the said will. (21). Thus, it is certainly a suspicious circumstance with regard to execution of the said will. (21). As far as circumstances No. 2 to 10 are concerned, they can not be really termed as suspicious circumstance as submitted by learned counsel for the appellant as a perusal of the earlier litigation between the parties as well as between the tenants on the one hand and Smt. Pura Devi, Smt. Chota Devi and the present defendant on the other hand, goes to show that parties were aware about the will in favour of the plaintiff and thus it was not correct to say that the plaintiff never disclosed this will prior to filing the present suit. Ex.A.5 is certified copy of the order passed by Assistant Revenue Officer, City Survey. This order is dated 28.12.1949 and it shows a dispute between the present plaintiff and Smt. Pura Devi. A perusal of this order goes to show that the present plaintiff relied upon a will said to be executed by Shri Kheri Lal in his favour but according to this decision the entire property was found in possession of Smt. Pura Devi and her tenants and the plaintiff was having no possession over any portion of the said properties. Ex.6 is the certified copy of the application filed by Smt. Pura Devi on 19.8.1950 in the department of City Survey, wherein she stated that no will was executed in favour of Shri Vallabh the present plaintiff. Ex.A.4 is certified copy of the order passed by Assistant Revenue Officer of City Survey. This order is dated 21.11.1950. A perusal of this order also goes to show that the plaintiff relied upon this Will in his favour said to be executed by Shri Kheri Lal and the plaintiff was directed to approach the Civil Court. Thus it was factually not correct to observe by the learned trial Judge that the plaintiff never disclosed this will prior to filing of the suit. Thus it was factually not correct to observe by the learned trial Judge that the plaintiff never disclosed this will prior to filing of the suit. The other circumstances that a suit was filed by one Shri Mohammad Bux against the plaintiff as well as the defendant against the demolition of one toilet and the present plaintiff did not file any written statement; that in eviction suit filed by the present defendant against the tenants the applications filed by the present plaintiff to be impleaded as a party were dismissed; that in such applications the present plaintiff did not disclose names of two attesting witnesses Ladu Ram and Ram Kishore are not the circumstances which may be said to be suspicious surrounding the execution of this will. Likewise denial of execution of the will by Smt. Chota Devi vide her two affidavits Ex.11 and 12 and two blank lines in the end of the said will are also not suspicious circumstances surrounding the execution of the said will and further there was no material available on the record to arrive at a conclusion as suspicious circumstance No. 10 that the ink used in Ex.1 appears to be only ten years old. But the circumstance No. 11 is certainly a suspicious circumstance which has been upheld by this court that the plaintiff appellant has failed to prove any pedigree or his relationship with late Shri Kheri Lal. I have gone though the other judgments also relied upon by learned counsel for the appellant. In Ramabais case (supra), the Honble Apex Court held that if the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. But in the instant case the facts are quite distinguishable as the very reasons for executing this will in favour of the plaintiff have not been proved. This is really a very strong suspicious circumstance as to why this will was executed in favour of the plaintiff who was not related to the testator and that too excluding the testators wife, his brothers wife and his own daughter. This is really a very strong suspicious circumstance as to why this will was executed in favour of the plaintiff who was not related to the testator and that too excluding the testators wife, his brothers wife and his own daughter. A very small portion in Haveli No. 285 was given to the defendant while entire remaining portion of the said Haveli as well as the entire Haveli No. 283 were bequeathed in favour of the plaintiff and only a provision for life maintenance was made for the testators wife and his brothers wife. The Honble Apex Court in Madhukar D. Shendes case (supra), held that the conscience of the court has to be satisfied by the propounder of the will adducing evidence so as to dispel any suspicious or unnatural circumstances attaching to a will provided that there is something unnatural or suspicious about the will. In the instant case the plaintiff-appellant has failed to satisfy the conscience of the Court. Similar view was taken in the cases of Gopinath Sunder Lal, and Rajlakshmi Dassi (both supra). In Ram Chandras case (supra), the Honble Apex Court held that such will is unnatural when the testator left properties worth several lakhs, and gave his wife only Rs. 40/- per month as her maintenance, and made only paltry bequests to his daughters. In Moti Lals case (supra), it was held by Honble Apex Court that the will was not registered ; and not on a stamped paper, it is also a suspicious circumstance in the facts and circumstances of the case. In Bhagwan Kaur vs. Kartar Kaur, in Guro (Smt.) vs. Atma Singh and Others in Gurdial Kaur and Others and in H. Venkatechalas cases (supra), the Honble Apex Court held that burden is on propounder to remove the suspicion surrounding the execution of the will. (22). There is yet another important suspicious circumstance surrounding the execution of this will. In Para Nos. 3 and 4 of the plaint, while giving the details of the properties two site plants of Haveli Nos. 285 and 283 have been attached with the plaint marking numbers of the various rooms etc. In Para 4 of the written statement it was pleaded that room marked `6-A in the map was not in existence in the year 1946. 3 and 4 of the plaint, while giving the details of the properties two site plants of Haveli Nos. 285 and 283 have been attached with the plaint marking numbers of the various rooms etc. In Para 4 of the written statement it was pleaded that room marked `6-A in the map was not in existence in the year 1946. Similarly W.C. bathrooms, Room No. 8, 8-A and some other constructions specified in para 4 of the written statement were not in existence in the year 1946 and the same were constructed by Smt. Pura Devi prior to filing the written statement in January 1979, and thus the will appears to be forged one. When the plaintiff was cross- examined with regard to these facts, he admitted that room No. 6- A as shown in Map Ex.2 was got constructed by Smt. Pura Devi in the year 1968-69. He also admitted that W.C., Bath Rooms and some other constructions as pleaded in para 4 of the written statement were got constructed by Smt. Pura Devi and they were not in existence at the time of execution of the said will and thus the said will Ex.1 has not been proved to be a true and genuine document. In view of the entire discussion made here-in-above, this point was rightly decided by the trial court against the plaintiff appellant. SECOND POINT (23). Before adverting to the rival submissions, it would be appropriate to reproduce the provisions of Section 14 of the Hindu Succession Act 1956 (in short the Act 1956) which are as under:- 14. Property of a female Hindu to be her absolute property. 1. Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation: In this sub-section, ``property includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or buy gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or any other manner whatsoever, and also any such property held by her as stridhna immediately before the commencement of this Act. (2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order of award prescribe a restricted estate in such property. (24). These facts are not in dispute that Kherilal died on 5.05.1946, leaving behind his wife Smt. Pura Devi, Younger brothers wife Smt. Chotu Devi and daughter Smt. Ginni Devi. According to the will Ex.1 the plaintiff-appellant was to be the owner of the bequeathed properties with a rider that both Pura Devi and Chotu Devi would have right of residence in the said properties and the propounder i.e. the plaintiff would pay appropriate amount for their maintenance and in case the plaintiff bails to do so both of them would have a right to recover the rent from the tenants for their maintenance till they are alive but they would have no right to alienate the said properties. (25). Learned counsel for the appellants contended that to attract the provisions of Section 14(1) of the Act 1956, it should be proved that female Hindu should be limited owner of the properties and she should be in possession of the same, otherwise she would not be the absolute owner of the property. According to learned counsel for the appellant since Smt. Pura Devi was given only life interest and that too for her residence and maintenance, she was never the limited owner of the properties and thus Section 14(1) of the Act 1956 is not applicable in the present case. He placed reliance upon Reghubar Singh and Others vs. Gulab Singh and Others (15), Kalawatibai vs. Soiryabai and Others (16), and Eramma vs. Veerupan and Others (17). Learned counsel for the respondent contended that Smt. Pura Devi was having not only a right of residence but also a right of maintenance and thus being the limited owner, she became the absolute owner of the said properties in accordance with Section 14(1) of the Act 1956. He placed reliance upon Bhairav Lal vs. Ram Gopal (18), Badri Prasad vs. Smt. Kanso Devi (19), Mst. Gaumati & Ors. He placed reliance upon Bhairav Lal vs. Ram Gopal (18), Badri Prasad vs. Smt. Kanso Devi (19), Mst. Gaumati & Ors. vs. Shanker Lal (20), Ram Sarup and Others vs. Smt. Toti and Others (21), Vaddeboyina Tulasamma and Others vs. Baddeboyana Sesha Reddi (22), Smt. Gulwant Kaur and Another vs. Mohinder Singh and Others (23), Ram Kali (Smt.) vs. Choudhari Ajit Shanker and Others (24), Thota Sesharathamma and Anr. vs. Thota Manlkymma (dead) by Lrs. & Ors. (25), Raghubar Singh and Ors. vs. Gulab Singh & Ors. (26), Smt. Pulchuri Henumayamma vs. Tadikamalla Kotilngam (27), and Bhoomireddy Chenna Reddy and Another vs. Bhoospallipedda Verrappa and Another (28). (26). I have considered the above submissions in the light of the judgments relied upon. Learned counsel for both the parties relied upon the judgment of Honble Supreme Court delivered in Reghubar Singhs case (supra), wherein it was held as under:- ``The husband of the widow had executed a will in favour of their grand child. The terms of the will provided that ``till myself (testator) along with my wife widow are alive we shall have full control over all our property movable and immovable. It is, thus, clear that testator and his widow were to retain all their rights and control over the property as owners thereof till their death and all those rights which they had over the suit property, were to later on devolve upon the legatee after their death. The legatee was to acquire only such ``rights and ``control over the suit property, which the testator and his wife themselves had in respect of the suit property during their life time. The will unmistakably shows that the rights which the widow was declared to possess during her life time were the same as those of the testator himself and that she was to remain in ``full control over all the property movable and immovable during her life time as an owner of the property. After the death of her husband, she continued to remain in possession of the suit property as its owner and she had full right and control over the same. In the compromise decree passed in the suit challenging validity of the will, the ownership rights of the widow were recognised. After the death of her husband, she continued to remain in possession of the suit property as its owner and she had full right and control over the same. In the compromise decree passed in the suit challenging validity of the will, the ownership rights of the widow were recognised. The terms of the will and the compromise decree thus unmistakably show that the widow had the ``ownership and possession of the suit property till her death and it ripened into full ownership by virtue of Sec. 14(1) of the Act. The `will as already noticed declared and the compromise Decree recognised the right of the widow as an ``owner in possession of the suit property with all the ``rights and control over it. The compromise decree did not create any independent or new title in her favour for the first time. Sub-Sec. (2) of Sec. 14, thus has no application to her case. (27). According to the learned counsel for the appellant in the instant case the widow was not given full control over bequeathed properties and only a right of residence and maintenance, hence, she did not acquire any limited right of ownership. But this submission cannot be accepted in view of the observations made in para 14 of this judgment placing reliance upon V. Tulasammas case (supra), wherein it was held that right to maintenance is undoubtedly a pre-existing right which existed in the Hindu Law before the passing of the Act of 1937 or the Act of 1956 and is, therefore, a pre-existing right. In para 14 of this judgment it was held as under :- ``14. According to the old Shastric Hindu Law, marriage between two Hindus is a sacrament-a religious ceremony which results in a sacred and a wholly union of man and wife by virtue of which the wife become a part and parcel of the body of the husband. She is, therefore, called Ardhangani. It is on account of this status of a Hindu wife, under the Shastric Hindu Law, that a husband was held to be under a personal obligation to maintain his wife and where he dies, possessed of properties, then his widow was entitled, as of right, to be maintained out of those properties. (28). She is, therefore, called Ardhangani. It is on account of this status of a Hindu wife, under the Shastric Hindu Law, that a husband was held to be under a personal obligation to maintain his wife and where he dies, possessed of properties, then his widow was entitled, as of right, to be maintained out of those properties. (28). It was clearly held in Para 27 and 29 of this judgment that even if it be assumed that the ``right which Smt. Janak Dulari had under the will, was to remain in possession of the property during her life time only and enjoy the property as well as its usufruct only during her life time, her limited estate ripened into full ownership by virtue of the coming into force of the Hindu Succession Act. Admittedly, she had continued to remain in possession of the property till her death in 1969, long after the coming into force of the Act in 1956 and thus she became the absolute owner by virtue of sub-section (1) of Section 14 of the Act 1956. While taking similar view in Kalawati Bais case (supra), the Honble Apex Court held that a female became absolute owner not only in respect of inherited property but even of property received by way of gift or on partition or in lieu of maintenance etc. provided she was a limited owner. The Honble Apex Court in Erammas case (supra), held that the property possessed by a female Hindu, as contemplated by Section 14(1) of the Act of 1956 is clearly property to which she has acquired some kind of title whether before or after the commencement of the Act. Thus a careful reading of the contents of the will clearly goes to show that Smt. Pura Devi was having a right to remain in possession and maintenance during her life time and thus she had acquired limited right of ownership which ripened into full ownership by virtue of Section 14(1) of the Act 1956. The law laid down in the various judgments relied upon by learned counsel for the respondent is the same that a female Hindu having acquired limited right of ownership would be absolute owner by virtue of Section 14(1) of the Act 1956. The law laid down in the various judgments relied upon by learned counsel for the respondent is the same that a female Hindu having acquired limited right of ownership would be absolute owner by virtue of Section 14(1) of the Act 1956. Thus, Pura Devi, wife of late Shri Kheri Lal became the absolute owner of the said properties by virtue of Section 14(1) of the Act and after her death the defendant being the only legal heir became the absolute owner of the disputed properties. Thus this point was also rightly decided by the learned trial judge in favour of the defendant-respondent. THIRD POINT (29). The learned trial Judge placing reliance upon Ali Husain Khan and Others vs. Mt. Bandi Bibi (29), and Abidi Ali Khan and Others vs. Secy of State and Another (30), held that the plaintiffs suit for declaration of title since not filed within a period of 12 years from the date of the hostile possession of the defendant is out of limitation. Learned counsel for the appellant contended that no prayer for any declaration was made rather only prayer was for delivery of the possession and mense profits and thus the decision of the trial court on this point is not correct. According to the learned counsel for the appellant his case is based on the basis of the will and since Smt. Pura Devi and Smt. Chota Devi were given right of residence and maintenance till they are alive and Smt. Chota Devi died in the year 1974, hence prior to their death no right accrued to the plaintiff appellant for approaching the civil court for getting possession of the bequeathed properties. According to learned counsel for the appellant Article 113 of the Limitation Act 1963 would apply and the suit was filed within a period of three years from the date right to sue accrued to the plaintiff and that right accrued on 10.11.1974 when Smt. Chota Devi died. Learned counsel for the respondent supported the decision of the trial court on this issue and contended that Art. 65 of the Limitation Act would apply in this case. (30). I have considered the rival submissions and am of the view that the decision of the trial court on this issue can not be upheld. Learned counsel for the respondent supported the decision of the trial court on this issue and contended that Art. 65 of the Limitation Act would apply in this case. (30). I have considered the rival submissions and am of the view that the decision of the trial court on this issue can not be upheld. Both the decisions in Ali Hussain Khan and Abidi Ali Khans case (supra), are not applicable in the instant case as the plaintiff appellant did not make any prayer in the instant case for a declaration of his title over the suit properties rather he prayed only for delivery of the possession of the same on the basis of will Ex.1. Learned counsel for the appellant is right to say that right to sue accrued to him on 10.11.1974 when Smt. Chota Devi expired and thus Article 113 and not the Article 65 of the Limitation Act 1963 would be applicable to the facts of the instant case. Thus, it is held that the present suit was filed within limitation. But in view of the decision on Point Nos. 1 and 2, this appeal is liable to be dismissed. Consequently, this appeal is dismissed with costs.