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2006 DIGILAW 939 (MP)

Keshav Prasad v. Bhuwani Bai

2006-08-01

A.K.SHRIVASTAVA

body2006
Judgment ( 1. ) THE defendants, feeling aggrieved by the judgment and decree passed by the First Appellate Court whereby the judgment and decree of the Trial Court dismissing the suit of plaintiff/respondent No. 1, has been set aside, has preferred this second appeal. ( 2. ) IN brief, the suit of plaintiff is that she is the daughter of Kaushalya Bai wd/o Udaybhan. According to plaint averments, Kaushalya Bai was the owner of the suit property, the description whereof has been mentioned in the plaint. The plaintiff being her daughter, after the death of Kaushalya Bai inherited the right, title and interest in the suit property. It has also been pleaded in Paras 7, 8 and 11 of the plaint that a forged and fictitious Will has been prepared by the defendants and by that forged and fictitious Will of Kaushalya Bai, no right, title and interest are devolved in them. The plaintiff further pleaded that the alleged Will dated 26-2-1978 alleged to have been executed by Kaushalya Bai in favour of defendant Nos. 1 and 2 be declared as null and void. In the plaint, the State of Madhya Pradesh has been arrayed as a formal party. The suit was filed by the plaintiff on 20-12-1979. ( 3. ) THE defendants, who arc appellants in this appeal, refuted the plaint averments in regard to the non-execution of the Will. However, this fact is not disputed by them that the plaintiff is the only daughter of Kaushalya Bai. According to the defendants, Kaushalya Bai executed the Will dated 26-2-1978 in their favour and hence they have become owner of the suit property by virtue of the said Will. In this manner, they have prayed that the suit be dismissed. ( 4. ) THE Trial Court on the basis of the pleadings of the parties framed necessary issues and after recording the evidence of the parties, found the Will to be proved and eventually dismissed the suit of plaintiff. ( 5. ) THE plaintiff, feeling aggrieved by the judgment and decree of the Trial Court, filed first appeal before learned First Appellate Court, which has been allowed by the impugned judgment and decree passed by learned First Appellate Court and the suit of plaintiff has been decreed. In this manner, this second appeal has been preferred by the appellants. ( 6. ) THE plaintiff, feeling aggrieved by the judgment and decree of the Trial Court, filed first appeal before learned First Appellate Court, which has been allowed by the impugned judgment and decree passed by learned First Appellate Court and the suit of plaintiff has been decreed. In this manner, this second appeal has been preferred by the appellants. ( 6. ) THIS Court on 4-8-1993 admitted this second appeal on the following substantial question of law: Whether the finding regarding the Will being a forged and fabricated document arrived at by the Lower Appellate Court is perverse ? ( 7. ) SHRI Jaiswal, learned Senior Counsel for the appellants, has submitted before me that the Trial Court by minutely paying heed to the testimony of each witness as well as the document of the Will came to hold that the Will is duly proved and the same is not forged as pleaded by the plaintiff and, therefore, the First Appellate Court erred in substantial error of law in holding the Will to be forged. In support of his contention, learned Senior Counsel has placed reliance on D. R. Krishnaswamy v. Wesleyan Methodist Mission Trust Association and Ors. AIR1980 SC 1658 , (1980 )1 SCC454 , 1980 (12 )UJ129 (SC ), Joyce Primrose Prestor (Mrs.) (Nee Vas) v. Verma Marie Vas (Ms) and Ors. 1996 III AD (SC )737 , 1996 (2 )CTC315 , JT1996 (4 )SC 333 , 1996 (3 ) SCALE596 , (1996 )9 SCC324 , [1996 ]supp1 SCR268. Learned Sr. Counsel has also placed reliance an Anr. decision of the Supreme Court, Misri Lal (dead) by L. Rs. and Anr. v. Smt. Daulati Devi and Anr. AIR1997 SC 3819 , JT1997 (7 )SC 132 , RLW1997 (3 )SC 382 , 1997 (5 )SCALE294 , (1997 )7 SCC133. By placing reliance on S. V. R. Mudaliar (dead) by L. Rs. and Ors. v. Mrs. Jajabu F. Buhari (dead) by L. Rs. and Ors. AIR1995 SC 1607 , JT1995 (3 )SC 614 , 1995 (2 )SCALE720 , (1995 )4 SCC15 , [1995 ]3 SCR312 , it has been argued that in case the judgment is of reversal, the Appellate Court is bound to assign cogent reasons differing from the view given by the Trial Court. According to learned Counsel, since this has not been done, the judgment of learned First Appellate Court is vitiated. According to learned Counsel, since this has not been done, the judgment of learned First Appellate Court is vitiated. It has also been argued by learned Senior Counsel that the plaintiff ought to have pleaded the details in regard to forged document of Will in terms of Order 6 Rule 4, CPC. Since there is nothing in the plaint, giving details in regard to fraud, the judgment of learned First Appellate Court cannot be said to be a legal judgment and hence the same be set aside. ( 8. ) SHRI K. N. Agrawal, learned Counsel for plaintiff/respondent No. 1, argued in support of the impugned judgment and has contended that the plaintiff in Paras 7, 8 and 11 of the plaint has categorically stated that the Will is a forged document and if that would be the position, it was incumbent upon the plaintiff to prove the Will in terms of Section 63 (c) of Indian Succession Act, 1925 (in short of the Act ). According to learned Counsel, since none of the attesting witness has proved the due attestation of the Will, the learned First Appellate Court did not commit any error in passing the impugned judgment. Learned Counsel for respondent No. 1 has also supported the reasonings assigned by the learned First Appellate Court holding the Will to be forged. ( 9. ) HAVING heard learned Counsel for the parties, I am of the view that this appeal deserves to be dismissed. ( 10. ) REGARDING substantial question of law: It is well settled in law that propounder of the Will is required to prove not only the due execution but also the due attestation of the Will. The decision of Joyce Primrose Prestor (Mrs.) (Nee Vas) (supra), which has been placed reliance by learned Counsel for the appellants itself lays down the law that the propounder is required to prove the Will. Thus, it is to be seen that the Will (Ex. D-l), which has been placed reliance by the defendants and on the basis of which they are basing their case, has been duly attested and proved or not. ( 11. ) ACCORDING to Clause (c) of Section 63 of the Act, the Will should be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will. ( 11. ) ACCORDING to Clause (c) of Section 63 of the Act, the Will should be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will. Apart from this, attesting witnesses should also sign the Will in presence of the testator. ( 12. ) IN order to prove the Will the defendants, who are the propounder of the Will have examined two attesting witnesses of the Will, they are Ramnath Pathak (D. W. 3) and Ramnarayan (D. W. 4 ). On bare perusal of the testimony of these two witnesses though they have stated that Kaushalya Bai put her thumb impression in their presence, but, nowhere they have stated that they have also signed the Will in presence of the testator. Thus, the due attestation as required under Section 63 (c) of the Act is not proved. ( 13. ) THE Supreme Court in the case of Girja Datt Singh v. Gangotri Datt Singh AIR1955 SC 346 , has held in Para 14 that in order to prove the due attestation of the Will the propounder of Will has to prove by examining attesting witnesses that the attesting witnesses saw the testator signing the Will and they themselves signed the same in the presence of the testator. Since it has not been come in the testimony of the attesting witnesses that they have signed the Will in presence of testator Kaushalya Bai, I am of the view that the Will and its attestation is not duly proved. The Supreme Court in another decision, Kashibai v. Parwatibai 1995 AIR SCW 4631, has reiterated the same principle, which has been laid down by the Apex Court earlier in the case of Girja Datt Singh (supra ). Shri A. K. Mathur, Chief Justice of this Court (as His Lordship then was) in the case of Mannudas v. Govinddas and Ors. 1997 (2) Vidhi Bhasvar 199, by following the decision laid down by Supreme Court in the case of Kashibai (supra), has held that the attestation of the Will should be duly proved and it should come in the evidence in the attesting witnesses that not only the testator has put his/her thumb impression in presence of the attesting witnesses but the attesting witnesses have also signed the Will in presence of the testator. Since the attesting witnesses, Ramnath Pathak (D. W. 3) and Ramnarayan (D. W. 4) have at all not stated that they also signed the Will in presence of the testator, the due attestation of the Will has not at all been proved. ( 14. ) APART from this, learned First Appellate Court has given cogent reasons in order to hold that the Will is found to be forged. Undoubtedly, the plaintiff is the sole daughter of Kaushalya Bai as she was not having any son. Defendant-Keshav Prasad is nephew of her husband and Smt. Malrani is the wife of Keshav. The First Appellate Court on the scrutiny of the evidence has specifically held that if the defendants were serving Kaushalya Bai as their mother, why they were not living with her after the death of her husband. It has also been held by learned First Appellate Court that the last rites of Kaushalya Bai were not performed by Keshav Prasad. It has also come in the evidence and this is finding of the First Appellate Court that what was the occasion for Kaushalya Bai to go and execute the Will at the house of Ramnath Pathak. There is no reason that why the Will was not executed by Kaushalya Bai at her own house. ( 15. ) INDEED, where a party is basing his case on the basis of a Will and the execution of the Will has been denied by the other party and pleads that the Will is full of suspicion and doubt, in that situation the Court is required to sit on the arm chair of the testator in order to ascertain whether the Will is free from all the doubts. ( 16. ) IN this view of the matter, since the due attestation of the Will is not proved for the reasons I have assigned, I am of the view that learned First Appellate Court did not commit any error in passing the impugned judgment. ( 17. ) THE decision of D. R. Krishnaswamy (supra), placed reliance by learned Counsel for the appellants is not applicable in the present case. In that case, the point of due attestation of the Will was not in issue. Similarly, the due attestation of the Will was not the point for decision in the case of Joyce Primrose Prestor (supra ). ) THE decision of D. R. Krishnaswamy (supra), placed reliance by learned Counsel for the appellants is not applicable in the present case. In that case, the point of due attestation of the Will was not in issue. Similarly, the due attestation of the Will was not the point for decision in the case of Joyce Primrose Prestor (supra ). Apart from this, the Supreme Court in this case held that the Will was written by testatrix herself. However, in the present case, the Will has not been written by the testatrix herself as she was an illiterate lady. It is said that she put her thumb impression on the Will. The decision of Misri Lal (supra), is also not applicable in the present factual scenario for the simple reason that the point in regard of proof of the due attestation was not involved in that case. Apart from this, in the said decision, it has come that the testatrix was having strained relations with her relatives and, therefore, the Will was executed in favour of third person. The decision of Munnadas (supra), is also not applicable because in the present case, reasons are assigned by First Appellate Court differing from the view of the Trial Court. Apart from this, since the due attestation of the Will is not proved, I am of the view that otherwise also the First Appellate Court did not commit any error in allowing the appeal and decreeing the suit of the plaintiff. ( 18. ) THE substantial question of law is thus answered that the finding arrived at by the First Appellate Court is not perverse in regard to Will being forged and fabricated document. ( 19. ) RESULTANTLY, this appeal is found to be devoid of any substance and the same is hereby dismissed with costs. Counsel fee Rs. 1,500/-, if pie-certified.