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2009 DIGILAW 208 (MP)

Lilabai v. Sarjubai

2009-02-11

PRAKASH SHRIVASTAVA

body2009
JUDGMENT 1. Heard on the question of admission. 2. This is an appeal filed by the plaintiff. The suit was filed by the appellant Lila Bai raising the plea that the suit property originally belong to her father Champalal and on his death the property was given to the original defendants No.1 Sarju Bai and Late Maina Bai, who were widows so that they could maintain themselves during their life time: Sarju Bai and Maina Bai jointly executed the Will dated 27.6.1960 bequeathing the property in question to the appellant, therefore, the appellant became owner of the suit property by virtue of the Will dated 27.6.1960. The claim of the appellant was denied by the defendants by questioning the Will said to be executed in favour of appellant and by taking the stand that the suit property was sold by appellant by Registered sale deed to the concerned respondents. 3. The trial Court while dismissing the suit of the appellant found that the suit property was sold by Registered sale deed dated 26.9.1960 and 18.6.1960 by the appellant Lila Bai to late Maina Bai and original defendant No. 1 Sarju Bai. The appellant failed to establish that the property was given to late Maina Bai and defendant Sarju Bai for maintenance during life time. The execution of the Will dated 27.6.1960 by Sarju Bai and late Maina Bai in appellant's favour was also not proved. Consequently, the trial Court dismissed the suit. In appeal the lower appellate Court affirmed the findings of the trial Court and dismissed the appeal. 4. Learned counsel appearing for the appellant submitted that the Court below committed an error in rejecting the Will Ex. P-l, which was executed in favour of the appellant on 27.6.1960. 5. The findings which have been recorded by two Courts below are essentially findings of facts which are not perverse. The Courts below have given a number of cogent reasons for finding the Will to be suspicious and not accepting the Will. The Courts below have examined the issue of authenticity of the Will in great detail. None of the witness of the Will has been produced by the plaintiff to prove the execution of the Will. It has been rightly recorded by the Courts below that the Will in question is not a registered document and it has been written on the stamp paper of 25 paise. None of the witness of the Will has been produced by the plaintiff to prove the execution of the Will. It has been rightly recorded by the Courts below that the Will in question is not a registered document and it has been written on the stamp paper of 25 paise. In the alleged Will there is no mention of the survey numbers. The Will allegedly contained the thumb impression of Mainabai and Sarjubai and which shows that two ladies were illiterate and in this background, there was heavy onus upon the appellant to establish the execution of the Will which she has failed to discharge. Even from the statement of PW 2 Yashwant Kumar which has been relied upon by the appellant the execution of the Will is not proved. There is no details on record as to who had prepared the Will, who had typed it, where it was prepared etc. It is also worth noting that the alleged Will was executed on 27.6.1960 and for about 25 years the plaintiff did not take any steps to get his name recorded on the basis of the Will. The Will was kept secret for such a long time. The circumstances which have been noted by the Courts below in finding the Will to be suspicious are cogent and valid circumstances, therefore, I do not find any error in the finding of the Courts below that no such Will was executed. The issue is essentially concluded by concurrent finding of fact and no question of law arises in the matter. The second appeal is accordingly, dismissed.