Judgment ( 1. ) THIS judgment shall govern aforesaid both the appeals arising out of the same judgment and decree dated 17-2-1992 passed by First additional District Judge, to the Court of District Judge, Bhopal in Civil Original suit No. 20-A/1985 whereby the suit for partition and separate possession filed by the Gopibai plaintiff, the appellant of F. A. No. 111/92 while the respondent no. 1 of F. A. 110/92 against the deceased defendant Govardhandas the predecessor of the respondent No. 1 to 3 of F. A. No. 111/92 while the appellant nos. 1, 2 and respondent No. 3 in F. A. No. 110/92 has been decreed in part for 1/4 share in the disputed house. Hereinafter for brevity said Gopibai and govardhandas with his legal representatives are said to be plaintiff and defendant respectively Being aggrieved by the aforesaid decree the plaintiff filed the appeal for enhancement of her share in the property from 1/4 to 1/2 while on behalf of the defendant the appeal is preferred for setting aside the entire decree by dismissal of the suit. ( 2. ) IT is not in dispute that the principal owner of the disputed house late chhotulal was the father of late Smt. Saoubai, the mother of both the parties. ( 3. ) THE facts giving rise to these appeals in short are that the plaintiff Gopi bai filed a suit against the deceased defendant Goverdhandas for partition with separate possession claiming half share of house No. 39 situated in the lane of opposite Shriji Mandir at Lakherapura, Bhopal. As per averments of the plaint late Chhotulal bequeathed the disputed house to said Smt. Saoubai, through Will, by virtue of it she became owner of it in 1936 on the death of Chhotulal. Since then till death of Saoubai she remained in possession of it and also kept some tenants in some part of it. The plaintiff got married in the lifetime of said chhotulal but her husband had died in the year 1940. Thereafter for some time she resided in the tenanted house but due to sickness of said Saoubai and jagannath the parties of the parties to look after them she resided with them in the disputed house. Subsequently, Summa Bai gave her a part of said house separately comprising two rooms at first floor along with open yard (Dahlan) for her residence. Subsequently, Summa Bai gave her a part of said house separately comprising two rooms at first floor along with open yard (Dahlan) for her residence. It is further pleaded that defendant had gone to Ujjain with his family in the year 1940 from where he came back to Bhopal after 9-10 years. During this period plaintiff was residing in the house. In the year 1960 on demise of Saoubai the plaintiff and principal defendant being her heirs inherited such house in equal share, since then they being joint owner of the property are in possession of it. Thereafter plaintiff demanded her share and separate possession of the house by partition but the defendant was not ready to it, thus after giving the notice to defendant she filed the suit for declaration of her half share with separate possession through partition. In alternative it was pleaded that in case the right of the plaintiff is not found in such property, even then considering the circumstance that she was residing with the mother in such house she be permitted to reside there for her remaining life by restoring her possession. ( 4. ) IN the written statement of the deceased defendant the averments regarding the ownership of said Summa Bai and the co-ownership of the plaintiff are denied. The defendant setup his exclusive ownership of the house on the strength of a "will" dated 27-11-1935 executed by late Shri Chhotulal. It is specifically pleaded that Saoubai had not acquired any right in such house therefore as heir or under the right of Saoubai the plaintiff has not acquired any right or share in it. As per further averments after demise of her husband the plaintiff had strange relation with her in laws family. Therefore only on account of social courtesy the plaintiff was time being permitted to reside in such house with the family of defendant. The contention of the plaint about giving the separate portion of this house to her is specifically denied. In the year 1958-59 the daughter of the plaintiff Nanhi Bai got married and since then she is residing with her daughter and son-in-law in some other house and not in possession of the disputed house. The suit is neither valued in accordance with law nor filed with on proper Court fees. ( 5. In the year 1958-59 the daughter of the plaintiff Nanhi Bai got married and since then she is residing with her daughter and son-in-law in some other house and not in possession of the disputed house. The suit is neither valued in accordance with law nor filed with on proper Court fees. ( 5. ) AFTER holding the trial on earlier occasion vide judgment dated 24-9-1985 the trial Court by holding the half share of the plaintiff in such house decreed the suit for her separate possession of such share by partition. The same was challenged by the defendant in First Appeal 74/1995. On consideration such appeal along with I. A. No. 7759/88 filed by the defendant to amend the written statement for mentioning the date of the Will with some facts was allowed and by setting aside the said earlier judgment and decree remitted back the matter to the trial Court for deciding afresh with certain directions. In compliance of such directions the further trial was held and the trial Court concluded the matter holding the aforesaid Will setup by defendant was duly executed by the deceased chhotulal but on interpretation of its averments decided 1/4 share of the plaintiff in such house instead to 1/2 share while % share was held in favour of the defendant. Thus the defendant filed his appeal for dismissal of the suit by setting aside the impugned judgment and decree while the plaintiff filed the appeal for holding her half share in such property by quashing the aforesaid Will. ( 6. ) IN both the appeals Shri A. D. Deoras, learned Senior Advocate assisted by Shri R. K. Jaiswal and Shri K. L. Gupta learned counsel for the defendant by referring the judgment of this Court dated 24-11-1988 passed in F. A. No. 74/85 said that the trial Court had to decide only the question directed by this Court, the findings beyond the remand direction are not sustainable. In such premises the findings given by this Court in earlier judgment are still binding at this stage. He further said that there is sufficient circumstance to draw the presumption under section 90 of the Evidence Act regarding execution of the Will Ex. D. 4 by testator chhotulal and its genuineness could not be doubted because it being 30 years old document has come from the proper custody of defendant. He further said that there is sufficient circumstance to draw the presumption under section 90 of the Evidence Act regarding execution of the Will Ex. D. 4 by testator chhotulal and its genuineness could not be doubted because it being 30 years old document has come from the proper custody of defendant. It does not require any other evidence to prove the same. Although the same has been proved by the defendant and attesting witness Laxminarayan (P. W. 2) as per requirement of law. The same has not been rebutted by the plaintiff even after remitting back the matter, she did not enter in the witness box for the same. By referring the averments of the Will he said that the disputed house was bequeathed to the defendant in his exclusive ownership and nothing in it was given to Saoubai. When the Saoubai had not got any right in it then the claim of the plaintiff through her is not sustainable. According to Will the testator kept only Rs. 150/-with the Saoubai for some specific purposes and till this extent the Will was executed in favour of the Saoubai and not for the house. Thus, the last paragraph of the Will could not be interpreted for giving the half share of the house to saoubai. Therefore the approach of the trial Court holding such house was bequeathed in equal share to Saoubai and defendant and on demise of Saoubai the plaintiff inherited her half share i. e. 1/4 share in entire house is not correct and the same is not sustainable. He also said that such Will was setup by the defendant at the initial stage in written statement and also produced at early stage of the case and not the belated stage. With these submissions he prayed for dismissal of the suit by setting aside the impugned judgment and decree by allowing his appeal. ( 7. ) SHRI R. P. Agrawal, learned Senior Advocate assisted by Shri Sharad gupta, learned counsel for the defendant argued in both the appeals saying that the alleged Will set up by the defendant was produced at very belated stage in the year 1985. The same was not produced while getting mutation of the house in the record of local authority. The same was not got registered. The same was not produced while getting mutation of the house in the record of local authority. The same was not got registered. The testator, scriber and witnesses were not acquainted with the Urdu language in which it was written and in the absence of the testimony of scriber the same could not be deemed to be a validly executed document. The propounder has failed to prove the same with all probabilities. In such premises the Will appears to be a suspicious document. Besides it the same has not been proved in accordance with prescribed procedure and provision of law. Thus, the same could not be acted upon holding any right in favour of the defendant. He further said that as per her pleading Late Chhotulal bequeathed the house to Saoubai through Will by which she acquired it on his demise. Such Will neither produced nor proved on record. As per his submission this case is not based only on such Will but also based on the law of Succession prevailed on the death of Chhotulal in the year 1936 when succession was opened, the then according to Hindu Law Late Saoubai being daughter of the deceased Chhotulal inherited sole right of such house and on her demise in the year 1960 the plaintiff and defendant both inherited the same in equal share under the provision of Hindu Succession Act, 1956. In such premises the trial Court committed grave error in holding the Will to be a proved document. The trial Court ought to have decreed her suit for 1/2 share and prayed for modification of the impugned decree till this extent. In alternative he said that even on holding that the alleged Will was executed by the deceased Chhotulal, even then in view of its averments it appears to be a sale deed. Thus, the same could not be considered as Will. Simultaneously, on merits by referring the last paragraph of the Will he said that mentioned house had bequeathed in equal share to Saoubai and the defendant and not to defendant only. The interpretation of the Will by the trial Court could not be said to be wrong or contrary to the intention of the testator and prayed for allowing his appeal. ( 8. The interpretation of the Will by the trial Court could not be said to be wrong or contrary to the intention of the testator and prayed for allowing his appeal. ( 8. ) SUBSEQUENT to aforesaid arguments after closing the case for judgment on behalf of the plaintiff I. A. No. 9726/07, an application under Order 6, Rule 17, civil Procedure Code for amendment in the plaint regarding the right of natural succession of Saoubai after demise of her father and the particulars of her other heirs who are not alive was filed on 23-8-2007. The same shall be considered at the appropriate stage. ( 9. ) HAVING heard the learned counsel, I have gone through the record of the trial Court along with the impugned judgment and the earlier judgment of this court dated 27-4-1985 passed in F. A. No. 74/1985. ( 10. ) BY earlier judgment of this Court, the case was remitted back to the trial Court after setting aside the earlier judgment of the trial Court dated 27-4-1985 with following directions : "10. Consequently, from the discussions aforesaid the judgment and decree impugned is set aside and the case is remanded to the trial Court for deciding second part of Issue No. 1 relating to execution of the Will by late Chhotelal in favour of the appellant vide Exhibit D-3 and D-4 dated 27-11-1935. " ( 11. ) IT appears from the plaint that plaintiff filed the suit stating that principal owner of the house Chhotulal bequeathed the same through Will to his daughter Saoubai and on his demise by virtue of such Will she acquired the title of such house. It is undisputed fact that Chhotulal died in the year 1936 when the hindu Succession Act 1956 was neither enacted nor came into force. There was no any other law except the general principle of Hindu Law regarding inheritance of the property by the daughter of the deceased Hindu person. It has also come on record that one Narayan the nephew of the deceased Chhotulal covered by sapinda gotra was alive on his death. As per principle of Hindu Law in the absence of any testamentary document such nephew was falling in class-I heir of the deceased as prescribed in Hindu Law edited by Mulla (19th edition), the same is read as under : 38. As per principle of Hindu Law in the absence of any testamentary document such nephew was falling in class-I heir of the deceased as prescribed in Hindu Law edited by Mulla (19th edition), the same is read as under : 38. THE CLASSES OF HEIRS : (1) There are three classes of heirs recognized by Mitakshara, namely (a) Gotraja sapindas; (b) Samanodakas; and (c) bandhus. (2) The first class succeeds before the second; the second succeeds before the third. ( 12. ) ACCORDING to it Saoubai did not acquire any right as heir of Choutulal under the prevalent provision of the then Hindu Law as Narayan Gotraja sapindas was alive and daughter after marriages could not be treated the Gotraja sapindas of deceased. ( 13. ) APART the above the absence of any Will in favour of the Saoubai as pleaded by the plaintiff it could not be assumed that the house was bequeathed to her by Chhotulal. It is undisputed fact that the Will pleaded by the plaintiff neither produced nor proved on record, even the description of the Will like date, place etc are also not mentioned in the plaint. Therefore, it is held that house in question was not acquired by Saoubai by Will alleged by the plaintiff in plaint. ( 14. ) IN written statement the deceased defendant claimed such house as his exclusive property on the strength of Will executed by said Chhotulal but its date and other description were not pleaded at initial stage, the same were inserted by way of amendment in earlier F. A. No. 74/1985. Subsequent to such amendment the case was remitted back with the aforesaid direction to the trial Court and in compliance of the same by extending the opportunity for adducing the evidence to the parties on appreciation the Will alleged by the defendant is found to be executed by Chhotulal. ( 15. ) IT appears from earlier judgment of this Court that objection about filing such Will at belated stage was never taken by the plaintiff in such appeal and the same is raised by the plaintiff first time, hence such objection cannot be sustained. ( 15. ) IT appears from earlier judgment of this Court that objection about filing such Will at belated stage was never taken by the plaintiff in such appeal and the same is raised by the plaintiff first time, hence such objection cannot be sustained. Besides this the arguments advanced by the plaintiffs counsel that the defendant filed the alleged Will only on 7-1-1985 and not prior to it the same is falsified by the proceedings of the trial Court dated 19-12-1978 directing the parties to comply the Orders 11 and 12 of Civil Procedure Code regarding admission and denial of documents, on which the defendant filed the Will with his affidavit as per order-sheet dated 6-2-1979. Subsequent to it, the same was inspected by the plaintiffs counsel, as recorded by the trial Court in the order sheet dated 26-10-1979. Therefore, it could not be said that such document was filed in the year 1985 or at any belated stage. It also appears that subsequent to filing such Will the issues were framed on dated 2-12-1980 and settling date of the issues was 11-12-1980 on which the parties were directed to lead their evidence. Since the document was filed before framing and settling the issues. Thus, the objection raised by the plaintiffs counsel in this regard does not have any force and same is not sustainable. ( 16. ) COMING to the question of legality of the Will (Ex. D. 4 and its translated version in Hindi Ex. D. 5) set up by the defendant. The same is written in Urdu language, the language of old Bhopal State as apprised by the learned counsel of the parties. Incidentally I would like to mention here that translation of such document in Hindi (Ex. D. 5) was placed and proved on record, the same has not been objected by either of the parties at any stage of the case and the same was taken into consideration along with original document by the trial Court and also by this Court at earlier stage. On perusing such document, it is apparent that it has a signature of testator Chhotulal along with the signatures of alleged witnesses Guttulal, Vallabhdas, Narayandas and Laxminarayan in Hindi language. It is apparent that this document was not got registered. ( 17. On perusing such document, it is apparent that it has a signature of testator Chhotulal along with the signatures of alleged witnesses Guttulal, Vallabhdas, Narayandas and Laxminarayan in Hindi language. It is apparent that this document was not got registered. ( 17. ) THE appellants counsel objected such document on the ground that testator did not knew the Urdu language and the same is not got registered. Thus, the possibility of false fabrication could not be ruled out. It is settled proposition of law that only on account of non-registration of a Will it could not be disbelieved because the registration of the Will is not made compulsory under the law. So far language is concerned the documentation is normally carried out in the language prevailed under the legal system. The Will was written in Urdu the then prevalent language of such State; hence merely on this ground the document could not be disbelieved. It is true that Jagnnath Prasad resident of Jahagirabad the scriber of the Will has not been examined but under the law examination of scriber is not mandatory but as per provision of section 68 of Evidence Act it should be proved by attesting witness. I have not been apprised by any legal position showing that witness of the Will must know the language, subject-matter and description of the Will mentioned by the testator. Hence, in the lack of such knowledge the witness of the Will cannot be disbelieved. In such premises the objections of the plaintiffs counsel does not have any material force and Court has to consider only the execution of said document by the testator in presence of the witnesses. ( 18. ) AS per provision of section 63 of the Succession Act or under the definition of "attestation" enacted under section 3 of Transfer of Property Act no specific pro-forma or method of attestation has been prescribed but as per such provision the Will should be signed by the testator in presence of the attesting witnesses and subsequent to the signature of testator the same should be signed by the witnesses in presence of the testator. If such things are found to be proved then such document could be held to be a validly executed document. Such principle is laid down in all the cases, cited by the parties in this regard. ( 19. If such things are found to be proved then such document could be held to be a validly executed document. Such principle is laid down in all the cases, cited by the parties in this regard. ( 19. ) IT is true that propounder of the Will is bound to remove all the suspicious circumstances and prove the Will with all probabilities that the same was executed by the deceased in accordance with law. In the lack of such evidence Will cannot be deemed to be a genuine and validly executed document as laid down by the Apex Court in the matter of Kalyan Singh vs. Smt. Chhoti and others, reported in AIR 1990 SC 396 . In view of this announcement of the apex Court while deciding such question Court may consider the conduct of propounder also. I have not found any pleading or evidence on record showing that during the period in which the alleged Will was executed the conduct of the defendant was suspicious or the testator was suffering from any deformity or any infirmity regarding his physical and mental condition. Therefore, execution of will could not be doubted on this count also. ( 20. ) ALTHOUGH before remanding the matter to the trial Court not a single witness of the Will (Ex. D. 4) was examined on behalf of the defendant but subsequent to remand the defendant himself entered into the witness box and besides his earlier deposition he additionally proved the said Will and its one attesting witnesses Laxminarayan (D. W. 2) has also been examined. He categorically proved A to A the signature of the testator Chhotulal on Ex. D. 4 along with his signature E to E, signature. He further proved the signature of other witnesses Guttu B to B and Narayandas as C to C. He also stated that Will was executed by Chhotulal and the same was signed by him and other persons as witnesses. He categorically stated that such signature took place in his presence. Although in cross-examination he accepted his relation with the defendant, as they were working together for social services. He also deposed that he does not know the Urdu language. He categorically stated that such signature took place in his presence. Although in cross-examination he accepted his relation with the defendant, as they were working together for social services. He also deposed that he does not know the Urdu language. The alleged Will was executed in the year 1935 and his deposition was recorded on 7th May, 1991 i. e. after 56 years in spite of it he stated aforesaid version in the age of 85 years by which he proved that testator signed such document in presence of him and other witnesses and he along with other witnesses signed the same in presence of the testator. Accordingly the execution of the Will has been proved with all probabilities. ( 21. ) APART the above after remanding the matter to rebut the aforesaid evidence plaintiff did not enter into the witness box. Even in earlier statement she did not challenge the aforesaid Will even in her chief. After incorporating the amendment in the written statement she also amended her plaint in this regard but in support of such pleading she did not enter into the witness box. Although her daughter Smt. Narayani Agrawal (P. W. 7) examined on 10-1-1992 but she did not depose anything against the aforesaid Will (Ex. D. 4 ). Accordingly in support of the Will there is un-rebutted evidence is available on record. ( 22. ) BESIDES the above the aforesaid Will being 30 years old document has come from the proper custody of the propounder the beneficiary the defendant and in view of aforesaid mentioned circumstance the presumption regarding signature of the testator Chhotulal and also other part of it could be drawn in favour of the defendant by virtue of section 90 of Evidence Act such aspect was considered by this Court in the aforesaid earlier judgment dated 24-11-1988 passed in F. A. No. 74/1985 in which it was held as under : "7. Perusal of Exhibit D-3 and D-4 further reveals that these two documents i. e. the Will executed by late Chhotelal in favour of the appellant bequeathing the suit house, are more than 50 years old. No doubt, evidence of persons who were not present at that time are not available, yet, in Munnalal minor and others vs. Mst. Kashibai and others (AIR 1947 P. C. 15), dealing with this aspect. No doubt, evidence of persons who were not present at that time are not available, yet, in Munnalal minor and others vs. Mst. Kashibai and others (AIR 1947 P. C. 15), dealing with this aspect. Their Lordships have laid down the law applicable to such ancient Wills which are more than 30 years old, as follows : "party setting up a Will is require to prove that the testator was of sound disposing mind when he made his Will but, in the absence of any evidence as to the state of the testators mind, proof that he had witnesses must lead to a presumption that he was of sound mind, and understood what he was about. This presumption can be justified under the express provisions of section 90, since a Will cannot be said to be duly executed by a person who was not competent to execute it; and the presumption can be fortified under the more general provisions of section 114, since it is likely that a man who performs a solemn and rational act in the presence of witnesses is sane and understands what he is about. " therefore, in view of the above referred decision, the actual execution and attestation of a Will, which is more than 50 years old and produced by the appellant from proper custody can be presumed in accordance with the provision of section 90 of the Evidence Act. " ( 23. ) THE aforesaid earlier findings are still binding at this stage as led down by the Apex Court in the matter of Satyadhyan Ghosal and other vs. Smt. Deorajin Debi and another, reported in AIR 1960 SC 941 in which it was held as under: "8. The principle of res judicata applies also as between two stages in the same litigation to this extent that a Court, whether the trial Court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter against at a subsequent stage of the same proceedings. Does this however mean that because at an earlier stage of the litigation a Court has decided an interlocutory matter in one way and no appeal has been taken therefrom or no appeal did lie, a higher Court cannot at a later stage of the same litigation consider the matter?" ( 24. Does this however mean that because at an earlier stage of the litigation a Court has decided an interlocutory matter in one way and no appeal has been taken therefrom or no appeal did lie, a higher Court cannot at a later stage of the same litigation consider the matter?" ( 24. ) SO far the argument that the said document could not be treated as Will because as per its averments the same was executed by the testator in consideration of the money. In view of definition of Will defined under section 2 (h) of the Succession Act on perusing the document it is apparent from some part of it that the mentioned properties are bequeathed to the beneficiaries concerned after the death of testator. Therefore, on interpretation of the document the same should be treated the Will as the same was executed for giving the properties after the death of testator. ( 25. ) UNDER the aforesaid premises, the approach of the trial Court holding the aforesaid Will as genuine validly executed document is not perverse in any manner. Hence the same is hereby affirmed. ( 26. ) NOW the Court has to consider to whom the disputed house was bequeathed either to the defendant in exclusive ownership or to the defendant and his mother Saoubai both jointly in equal share. In order to consider such controversy, I would like to reproduce the relevant abstract (the Hindi translated version Ex. D. 5) of the Will by which the rival parties are claiming their rights in the house : ( 27. ) IT is apparent from the aforesaid paragraph 1 the house was bequeathed to defendant in his exclusive ownership while as per paragraph 2 some cash amount was bequeathed to Saoubai with some direction. Accordingly the house was given to defendant and some case was given to Saoubai. In continuation of paragraphs 1 and 2 the last paragraph 3 was written with a direction that aforesaid Will was executed in favour of defendant and Saoubai. The language of this paragraph is very clear and does not have any ambiguity mere reading of this paragraph reveals that Will is executed in favour of Saoubai and defendant but for different properties mentioned in paragraphs 1 and 2. It does not reflect that testator directed contrary to earlier paragraphs of the Will in last paragraph. The language of this paragraph is very clear and does not have any ambiguity mere reading of this paragraph reveals that Will is executed in favour of Saoubai and defendant but for different properties mentioned in paragraphs 1 and 2. It does not reflect that testator directed contrary to earlier paragraphs of the Will in last paragraph. Therefore, section 88 of Succession Act is not helping to the plaintiff. ( 28. ) THEREFORE, it is held that the trial Court has committed grave error in holding that disputed house v/as given in equal share to the defendant and his mother Saoubai and on demise of Saoubai her half share inherited by the plaintiff and defendant accordingly plaintiff has 1/4 share in the disputed house while defendant has 3/4 share in the same. In such premises the judgment and decree of the trial Court being perverse is not sustainable under the law. ( 29. ) IN view of the aforesaid the defendant is found as beneficiary of the will executed by Chhotulal in respect of the house. When the house had been bequeathed through testamentary document the Will (Ex. D. 4) then the question of natural succession in view of general principle of Hindu law at the time of death of Chhotulal does not require any consideration. Hence, proposed amendment in the plaint by the plaintiff through I. A. No. 9726/07 is not necessary to adjudicate this appeal. Hence, the I. A. is hereby dismissed. ( 30. ) UNDER the aforesaid premises, by allowing F. A. No. 110/92 filed by the legal representatives of deceased defendant the impugned judgment and decree is hereby set aside and the F. A. No. 111/92 filed by the plaintiff being devoid of any merits is hereby dismissed. Resultantly suit of the plaintiff is also dismissed. ( 31. ) IN the facts and circumstances of the case parties shall bear their own costs. ( 32. ) F. A. No. 110/92 is allowed and in pursuance of it F. A. No. 111/92 is dismissed as indicated above. Order accordingly.