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2008 DIGILAW 1053 (ALL)

FAGGAN (DECEASED). v. BHAGWAN SAHAI (DECEASED)

2008-05-13

POONAM SRIVASTAVA

body2008
JUDGMENT Hon’ble Mrs. Poonam Srivastava, J.—Heard Sri R.S. Maurya, learned Counsel for the plaintiff/appellants and Sri S.S. Singh, learned Counsel for the defendant/respondents. 2. The instant second appeal arises out of the judgment and decree dated 7.11.1996 passed by the XVth Additional District Judge, Meerut, in Civil Appeal No. 76 of 1994 confirming the judgment and decree dated 8.4.1994 passed by the trial Court in original suit No. 409 of 1979. 3. The original suit was instituted for cancellation of the Will dated 14.12.1966 executed by one Khachedu in favour of the defendants. The plaintiffs case is that Khachedu had three sons namely Faggan (plaintiff), Bhagwan Sahai and Man Singh (defendants). Khachedu died on 16.7.1977. The plaintiff moved an application for mutation of his name over his 1/3 share, which was contested by the defendants on the basis of the Will dated 14.12.1966. Claim of the plaintiff/appellants is that the said Will is forged document and it was prepared only with an intention to grab share of the plaintiff. The plaintiff also claimed that the property was purchased by Khachedu from finances provided by the plaintiff. The defendants disputed the plaint case and denied that the plaintiff is son of Khachedu but it was pleaded that the plaintiff is son of Bhinka. 4. A criminal complaint was instituted by the plaintiff against the defendants and Khachedu where he had shown himself to be his son. In additional plea, it was also stated by the defendants that Khachedu appeared in the witness box and denied the plaintiff to be his son. Record of the mutation case was summoned from the revenue Court. Preliminary objection regarding limitation was rejected by the trial Court vide order dated 8.4.1994. However, the suit was dismissed with the findings that the plaintiff has not been able to prove that the Will was forged or he is son of Khachedu. Civil Appeal No. 76 of 1994 was preferred before the XVth Additional District Judge, Meerut, which has also been dismissed. 5. Learned Counsel for the plaintiff/appellants has raised a number of substantial questions of law but has addressed the Court on the following substantial questions of law, which are quoted below : “(1) Whether burden lies on the propounder of the Will to prove due execution of the Will and remove all suspicious circumstances, the Courts below have wrongly shifted the burden on the plaintiff? (2) Whether the Will is shrouded with suspicious circumstances and was liable to be cancelled on this ground alone? (3) Whether on the statement submitted by Khachedu under Section 6 of Urban Land (Ceiling and Regulation) Act, the plaintiff was shown as son of Khachedu and Khachedu took benefit under Section 4 (7) of that Act on a subsequent date, recital in the Will that Khachedu had only two sons make the Will highly suspicious and forged. (4) Whether the judgment of the criminal Court is inadmissible in evidence and in any case its photostat copy is not admissible ?" 6. The main emphasis of the Counsel for the appellants is on the basis of statement said to have been filed by Khachedu before the ceiling authority, it was mentioned that he had three sons and this benefit was also availed by him. Record from the ceiling office was also summoned and an application along with statement filed by Khachedu was adduced in evidence. 7. Next submission on behalf of the appellants is that the Courts below committed an illegality while placing reliance on the judgment and order dated 9.11.1966 in the criminal case, which was not admissible in view of Sections 40 to 43 of Indian Evidence Act. 8. Learned Counsel for the appellants has stressed that the Will was executed in a highly suspicious circumstances and if Khachedu had only two sons, there was no reason for him to execute the Will as they were natural surviver after his death. The defendants failed to give any reason as to why the Will was executed coupled with the statement before the ceiling authority. The Will is shrouded with circumstances, which could not be said to be suspicious and no reliance can be placed on the Will. Learned Counsel has placed reliance on two decisions of the Apex Court; Hero Vinoth (Minor) v. Seshammal, 2006 (2) SCD 714, and Benga Behera and another v. Braja Kishore Nanda and others, 2008 (104) RD 61. 9. Learned Counsel for the respondents has disputed each and every argument advanced on behalf of the appellants and asserted that it was the plaintiff/appellants, who instituted a suit for cancellation of the Will on the ground that it was forged and fictitious document, therefore, burden lies on the plaintiff himself to establish that the Will was forged. 9. Learned Counsel for the respondents has disputed each and every argument advanced on behalf of the appellants and asserted that it was the plaintiff/appellants, who instituted a suit for cancellation of the Will on the ground that it was forged and fictitious document, therefore, burden lies on the plaintiff himself to establish that the Will was forged. The submission is that the thumb impression affixed on the statement before the ceiling authority was not proved and substantiated that it was of late Khachedu specially when it was specifically denied by the defendants. No handwriting expert was examined and, therefore, the Courts were absolutely right while refusing to place any reliance on the said document. Besides, it is also argued that substantial questions of law raised in the instant second appeal are factual in nature and cannot be interfered on reappraisal of evidence in exercise of jurisdiction under Section 100, C.P.C. 10. I have considered the arguments of the Counsels for the respective parties, perused the two judgments and also decision relied upon by the Counsel for the appellants. Substantial questions of law raised in this appeal mainly revolves around that the circumstances, in which the disputed Will was executed, were suspicious in nature and the Courts below failed to consider the evidence legally. Suggestion of the Counsel for the appellants that burden lies on the propounder of the Will to remove all suspicious circumstances is not acceptable in the instant second appeal. In fact, the Will executed in favour of the two sons was disputed by the plaintiff himself and therefore, whether the circumstances in which the Will was executed, was suspicious or not, was to be established and proved by the person, who claimed it to be forged. 11. The only ground of objection raised by the appellants is that statement given before the ceiling authority is sufficient to establish that there were three sons of Khachedu thus the Will could not be executed in favour of the two defendants alone. The Courts below have refused to accept the claim made by the plaintiff and also concluded that circumstances at the time of execution of Will was not suspicious and, therefore, the argument to the contrary carries no weight. The Courts have recorded finding of fact by placing reliance on the authenticity and validity of the Will. The Courts below have refused to accept the claim made by the plaintiff and also concluded that circumstances at the time of execution of Will was not suspicious and, therefore, the argument to the contrary carries no weight. The Courts have recorded finding of fact by placing reliance on the authenticity and validity of the Will. The Courts were correct while holding that the suit itself was instituted for cancellation of the Will, therefore, relief claimed by the plaintiff could be given only if he was able to discharge burden of proving his plaint case irrespective of shortcomings of the defendant’s pleadings or evidence. The two Courts categorically recorded findings of fact that the plaintiff failed to discharge his burden and prove any circumstance whatsoever that could lead to a conclusion that the deceased Khachedu executed the Will either by force or by misleading him and that it was fabricated or forged. It has also not been established that the thumb impression on the Will was of any other person other than the testator himself, Khachedu in the instant case, who has bequeathed his property to the two sons. Assuming submission of the Counsel for the appellants that the statement before the ceiling authority was given by Khachedu himself and also that the plaintiff was son of Khachedu and not Binka even then in presence of the Will in favour of the two defendants, a heavy burden cast on the plaintiff to establish that it was forged. The Will was also proved by one of its marginal witnesses, therefore, requirement of Indian Evidence Act stood fulfilled unless it can be discarded on the basis of certain evidence or circumstances brought on record by means of a cogent and valid evidence by the plaintiff. There is no such law that prohibits a person from executing a Will in favour of few or one of his son as it has been done. It is besides the points that Khachedu had three sons or two sons. The question in issue before the two Courts was that the Will alleged to be forged one and executed in suspicious circumstances was liable to be cancelled. The plaintiff miserably failed to discharge this duty and, therefore, I am of the considered view that findings regarding validity of the Will is absolutely correct. The question in issue before the two Courts was that the Will alleged to be forged one and executed in suspicious circumstances was liable to be cancelled. The plaintiff miserably failed to discharge this duty and, therefore, I am of the considered view that findings regarding validity of the Will is absolutely correct. The plaintiff could not convince the Courts below by means of any evidence whatsoever to come to a conclusion that will was forged. 12. Next argument regarding admissibility of the judgment and order of a criminal case in evidence is concerned, I am of the view that it is not very relevant, assuming I ignore the judgment passed in criminal case where finding has been recorded that Khachedu had denied having three sons. This will not have material bearing to the merits of the instant second appeal. The question of admissibility or inadmissibility of evidence is immaterial since this by itself is not of any great assistance to the plaintiff. 13. Learned Counsel for the appellants has specifically laid emphasis in paragraph 24 of the decision of Apex Court; Hero Vinoth (supra), which is quoted below : “24. The principles relating to Section 100, CPC, relevant for this case, may be summerised thus : (i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a Principle of law in construing a document, it gives rise to a question of law; (ii) The High Court should be satisfied that the case involves a substantial question of law and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal Principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a materials question, violates the settled position of law; and (iii) The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the Courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the Courts have wrongly cast the burden of proof. When we refer to ‘decision based on no evidence’, it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.” 14. Taking into consideration principles laid down in the aforesaid decision, learned Counsel for the appellants has not been able to bring facts of the present case within the ambit that the Courts below have ignored material evidence or acted on no evidence or Courts have drawn wrong inference from proved fact by applying the law erroneously or the Courts have wrongly cast the burden of proof on the appellants. As it has already been stated above, the suit was at the instance of the plaintiff, relief for cancelling the Will on the ground that it was forged one and executed in suspicious circumstances, could not be established by the plaintiff. 15. Learned Counsel for the appellants though harped on the statement given before the ceiling authority but this itself is not sufficient since thumb impression on the application was not proved by means of expert evidence. Besides this, it will not preclude a person to execute a Will in favour of few of his sons in exclusion of others. Therefore, I am of the considered view that the Courts below have neither ignored material evidence nor acted on no evidence or arrived at a wrong conclusion. Besides this, it will not preclude a person to execute a Will in favour of few of his sons in exclusion of others. Therefore, I am of the considered view that the Courts below have neither ignored material evidence nor acted on no evidence or arrived at a wrong conclusion. There is no applicability of the principles laid down in the case relied by the appellants vis-a-vis the merits of this appeal. So far next decision of the Apex Court relied upon by the Counsel for the appellant; Benga Behera (supra) is concerned, it relates to a case where letter of administration was to be issued under Indian Succession Act and consideration of existence of suspicious circumstances depends on facts and various aspects which was liable to be considered before issuing a letter of administration. The ambit in the said decision was extensive since it was an original jurisdiction while considering the circumstances and evidence and the parameters were entirely different. This is a second appeal and last Court of fact was the lower appellate Court. 16. The Apex Court has very clearly observed that Section 68 of Indian Evidence Act postulates the mode and manner in which proof of execution of a document is required by law; at least one attesting witness, if alive is subject to the process of the Court and capable of giving evidence, should be produced, which has been done in the instant case. The witnesses have been produced before whom the Will was executed and Will was attested and they have also endorsed that late Khachedu had signed the Will in front of the two witnesses namely Kamta Prasad and Sunheri. The Will was also registered document, therefore, presumption regarding its authenticity in favour of the defendants cannot be said to be illegal in any manner. 17. In view of what has been observed in the foregoing paragraphs, I am satisfied that the two judgments of the Courts below are absolutely legal and do not suffer from any error of law, what to say substantial questions of law raised in the instant second appeal. 18. 17. In view of what has been observed in the foregoing paragraphs, I am satisfied that the two judgments of the Courts below are absolutely legal and do not suffer from any error of law, what to say substantial questions of law raised in the instant second appeal. 18. The Apex Court depreciated the liberal construction and generous application of provisions of Section 100, C.P.C. Hon’ble Supreme Court was of the view that only because there is another view possible on appreciation of evidence that cannot be sufficient for interference under Section 100, C.P.C. For ready reference, extract of paragraph 7 of the case of Veerayee Ammal v. Seeni Ammal, (2002) 1 SCC 134 is quoted below : “7. .....We have noticed with distress that despite amendment, the provisions of Section 100 of the Code have been liberally construed and generously applied by some Judges of the High Courts with the result that objective intended to be achieved by the amendment of Section 100 appears to have been frustrated. Even before the amendment of Section 100 of the Code, the concurrent finding of facts could not be disturbed in the second appeal. This Court in Paras Nath Thakur v. Mohani Dasi held : (AIR p. 1205 para 3). It is well settled by a long series of decisions of the Judicial Committee of the Privy Council and of this Court, that a High Court, on second appeal, cannot go into questions of fact, however, erroneous the findings of fact recorded by the Courts of fact may be. It is not necessary to cite those decisions. Indeed, the learned Counsel for the plaintiff-respondents did not and could not contend that the High Court was competent to go behind the findings of fact concurrently recorded by the two Courts of fact.” 19. Similar view has been expressed in a number of other decisions by the Apex Court in the cases of Thiagarajan and others v. Sri Venugopalaswamy B. Koil and others, JT 2004 (5) SC 54; Rajeshwari v. Puran Indoria; (2005) 7 SCC 60 ; Gurdev Kaur and others v. Kaki and others, 2006 All. C.J. 1481 (SC) and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and others, (1999) 3 SCC 722 . 20. C.J. 1481 (SC) and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and others, (1999) 3 SCC 722 . 20. The Apex Court in the recent case of Santosh Hazari v. Purshottam Tiwari, (2001) 3 SCC 179 , ruled that a point of law which admits of no two opinions may be preposition of law but cannot be a substantial question of law. To be ‘substantial’ a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. It will, therefore, depend on the facts and circumstances of each case whether a question of law is substantial one and involved in the case or not? The same view has been expressed by the Apex Court in the case of Govinda Raju v. Mariamman, (2005) 2 SCC 500 . 21. The judgments under challenge cannot be interfered in this appeal in exercise of jurisdiction under Section 100, C.P.C. The two judgments do not suffer from any error and no substantial question of law arises. The instant second appeal lacks merit and is, accordingly, dismissed with costs. ————