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Madhya Pradesh High Court · body

2009 DIGILAW 1188 (MP)

Nathia Bai v. Gangaram

2009-10-09

A.K.SHRIVASTAVA

body2009
JUDGMENT 1. This is defendants' second appeal against the impugned judgment dated 5.9.2000 passed by the learned District Judge, Guna, in Civil Appeal No.14-A/1995, whereby the learned first appellate Court has reversed the judgment and decree passed by the learned trial Court and has decreed the suit of the plaintiffs. 2. No exhaustive statement of facts are required to be narrated for the disposal of this second appeal, suffice it to say that Gangaram and Mohansingh are the plaintiffs and are the sons of Horal Singh. The plaintiffs in para 3 of the plaint have pleaded that the suit property was owned by one Baldev Singh, who had died on 19.2.1973. On 11.2.1973 Baldev Singh executed a Will in favour of plaintiff No.2 Mohan Singh by bequeathing his entire share in the disputed property. Learned counsel for the appellants submits that plaintiff No.2 Mohan Singh is the nephew of Baldev Singh. According to the plaintiffs, by executing the Will, Baldev Singh bequeathed the said property in favour of Mohan Singh. A probate proceeding is also pending in the Court of First Additional District Judge, Guna, in Case No.1/1975. In the suit property, Baldev Singh was having 1/3rd share and after the death of Baldev Singh, plaintiff No.2 Mohan Singh became owner of the share left by Baldev Singh by virtue of the Will. 3. The execution of the Will has been denied by the defendants in their written statement. Further, they have pleaded that the probate case has also been dismissed. In the written statement only the execution of the Will has been denied, but the defendants did not plead that the Will is suspicious for certain reasons. There is no pleading of the defendants that Will was executed by playing fraud, or it is a fictitious document. It has also not been pleaded that the testator was not in fit mental condition to execute the Will or any kind of undue influence etc. was made upon the testator. The pleading of defendants is completely silent in respect to what are the suspicious circumstances so as to hold that Will is not a valid Will. 4. It has also not been pleaded that the testator was not in fit mental condition to execute the Will or any kind of undue influence etc. was made upon the testator. The pleading of defendants is completely silent in respect to what are the suspicious circumstances so as to hold that Will is not a valid Will. 4. Since only the execution of Will was denied without any pleading that the Will is suspicious for certain reasons, the learned trial Court framed issue No.2 only in respect of the execution of the Will and no issue was rightly framed in respect of alleged suspicious circumstances. The learned trial Judge after recording the evidence, came to hold that Will is suspicious and eventually dismissed the suit. The appeal, which was filed by the plaintiffs before the learned first appellate Court, has been allowed by the impugned judgment and decree and the suit has been decreed. The learned first appellate Court held that the Will has been duly executed in favour of plaintiff No.2 Mohan Singh. 5. In this manner, this second appeal has been filed by the defendants before this Court. 6. This Court on 22.3.2004 admitted the second appeal only on the following substantial question of law: "1. Whether the first appellate Court has erred in holding that the Will EX.P-1 is a genuine document without considering the suspicious circumstances on record?" 7. The contention of Shri Bansal, learned counsel appearing for the appellants, is that although learned first appellate Court has found the execution of the Will to be proved, but since the plaintiffs have failed to remove suspicious circumstance in execution of the Will (Ex.P-1), therefore, learned first appellate Court has erred in substantial error of law in decreeing the suit of the plaintiffs. In support of his contention, learned counsel placed heavy reliance on the decision of Supreme Court H. Venkatachala Iyengar v. B.N. Thimmajamma and others [ AIR 1959 SC 443 , para 18]. 8. In support of his contention, learned counsel placed heavy reliance on the decision of Supreme Court H. Venkatachala Iyengar v. B.N. Thimmajamma and others [ AIR 1959 SC 443 , para 18]. 8. On the other hand, Shri Saxena, learned counsel appearing for the respondents No.1 and 2, argued in support of the impugned judgment and submitted that since there is no pleading of the defendants that how and in what manner the Will is suspicious, therefore, what suspicious circumstance the plaintiffs were required to remove is not clear and in absence of any specific pleading about the suspicious circumstances, plaintiff No.2, who is the propounder of the Will, cannot be asked to remove such suspicion which has not at all been pleaded and set up by the defendants. 9. Having heard the learned counsel for the parties, I am of the view that this appeal deserves to be dismissed. Regarding substantial question of law: 10. No substantial question of law has been framed in respect to the execution of the Will and therefore, the finding of the learned first appellate Court holding that the Will has been validly executed has come to an end and become final. The only substantial question of law which has been framed is in respect to the suspicious circumstances in execution of the Will. Indeed this is a matter of fact and should have been pleaded by the defendants in the written statement stating the specific circumstances under which the Will can be said to be suspicious in nature. The plaintiffs cannot be taken in surprise at the time of leading evidence or at the time of passing of the judgment that certain circumstance amounting to suspicion has not been removed by the plaintiffs. According to me, if the defendants would have pleaded the alleged suspicious circumstance, definitely an issue would have been struck by the learned trial Court and in that case if the plaintiffs would have failed to discharge to remove the alleged suspicious circumstances, certainly appellants would have some case. According to me, if the defendants would have pleaded the alleged suspicious circumstance, definitely an issue would have been struck by the learned trial Court and in that case if the plaintiffs would have failed to discharge to remove the alleged suspicious circumstances, certainly appellants would have some case. But, since there is no pleading of the defendants in this regard, in the vacuum and in the air, the plaintiffs cannot be asked to remove the alleged suspicious circumstance which is not at all pleaded and which the plaintiffs did not know and therefore, according to me this question does not arise that the Will is suspicious and plaintiffs have failed to remove suspicious circumstances. In para 18 of the decision of Supreme Court H. Venkatachala Iyengar (supra), put emphasis by the learned counsel for the appellants, the apex Court has held that how the Will is required to be proved, but the substantial question of law which has been framed is altogether different and therefore, this decision is not applicable in the present facts and circumstances of the case. 11. The Will is required to be proved just like any other document by adducing the additional evidence to prove the ingredients as envisaged under section 63(c) of the Succession Act by examining the attesting witness according to section 68 of the Evidence Act. It is also well settled that the propounder of the Will is required to prove the Will by removing all suspicious circumstances. Thus, if suspicious circumstances would have been pleaded by the defendants, then only the plaintiffs, who are the propounder of the Will, were legally bound to remove those suspicious circumstances. The contestant opposing the Will, according to me, was required to bring the material on record so that the Will can be said to be a suspicious document and in that event the onus would shift back on the propounder of the Will to satisfy the Court by adducing positive evidence that the Will is not suspicious. In this context, I may profitably place reliance on the decision of Supreme Court Meenakshiammal (dead) through LRs and others v. Chandrasekaran and another [ (2005)1 SCC 280 , para 22], in which the Supreme Court has categorically held as under: "22. In this context, I may profitably place reliance on the decision of Supreme Court Meenakshiammal (dead) through LRs and others v. Chandrasekaran and another [ (2005)1 SCC 280 , para 22], in which the Supreme Court has categorically held as under: "22. In the present case, the propounders of the Will have proved that the Will was signed by Siva; that at the time of execution of the Will, he had a sound disposing state of mind; and that he had reasons to exclude the plaintiffs who did not care for him in his old age. Lastly, as stated above, the onus to prove forgery, undue influence or collusion was on the plaintiffs who have alleged that EX.B-8 was forged. In the absence of such a plea, the lower appellate Court had erred in holding that the Will was forged. We are satisfied on examination of the evidence that execution, attestation and genuineness of the Will has been proved as held by the impugned judgment and in the circumstances, we find no merit in this appeal." 12. The Supreme Court in another decision PPK Gopalan Nambiar v. PPK Balakrishnan Nambiar and others [ AIR 1995 SC 1852 , para 4], held that the propounder of the Will, who was the defendant, has set up the Will, but, nothing prevented either the respondent or any of the contesting defendants to file a rejoinder i.e. additional written statement with leave of the Court under Order 8 rule 9 of CPC pleading the invalidity of the Will propounded by the appellant, but nothing was stated in the pleadings. The Supreme Court further held in para 5 that it is a trite law that the propounder of the Will is duty bound to prove the Will and to remove all the suspected features. But there must be real, germane and valid suspicious features and not fantasy of the doubting mind. 13. It would be relevant to mention here that the defendants are claiming through Baldev Singh who executed the Will in favour of plaintiff No.2 Mohan Singh. After the death of Baldev Singh, his widow Imrat Bai and daughter Sampat Bai filed a Civil Suit No.15-A/1975 in the Court of Civil Judge, Class II, Guna, against Horal Singh (father of the plaintiffs), Toran Singh and Gangaram, etc. After the death of Baldev Singh, his widow Imrat Bai and daughter Sampat Bai filed a Civil Suit No.15-A/1975 in the Court of Civil Judge, Class II, Guna, against Horal Singh (father of the plaintiffs), Toran Singh and Gangaram, etc. Needless to say, Imrat Bai and Sampat Bai are defendants I and 2 in the present civil suit. In the earlier suit Number l5-A/1975, which was filed by Imrat Bai and Sampat Bai, a compromise application was submitted on 1.1.1976 by the parties and certified copy of the compromise application is EX.P-5A. In this compromise application, Imrat Bai and Sampat Bai, who were plaintiffs of the earlier suit and are defendants No.1 and 2 of the present suit, admitted that Baldev Singh executed a Will during his life time on 11.2.1973 in favour of plaintiff Mohan Singh bequeathing his all movable and immovable property. In this context, para 1 of the compromise application (Ex.P-5A) may be seen. EX.P-6A is a certified copy of the statement of Imrat Bai, plaintiff of that suit (defendant No.1 of this suit), wherein she has admitted that after hearing the contents of the compromise application, she put her thumb impression on it. The Court again read over the contents of the compromise application to her which she admitted. Hence, there is admission of the defendants that valid Will is executed by Baldev Singh in favour of plaintiff Mohan Singh. 14. So far as the dismissal of the probate proceedings filed by the plaintiffs is concerned, the learned first appellate Court has examined this aspect of the matter in para 10 of the impugned judgment and has held that the said proceedings came to an end because the present civil suit has been filed and therefore, the dismissal of the probate proceedings will not jeopardize the case of the plaintiffs. 15. The substantial question of law is thus answered accordingly. 16. For the reasons stated hereinabove, I do not find any merit in this appeal. The same is hereby dismissed with costs. Counsel fee Rs.3,000/- if pre-certified.