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Rajasthan High Court · body

2009 DIGILAW 330 (RAJ)

Kanhaiyalal through Lrs. v. Nanagram through Lrs.

2009-02-04

DALIP SINGH

body2009
JUDGMENT : 1. This appeal has been filed under Section 54 of the Land Acquisition Act, 1894 against the judgment dated 29.03.1996 passed by the learned Civil Judge (Senior Division) and Additional Chief Judicial Magistrate, Jaipur District, Jaipur in the matter of the application under Section 30 of the Land Acquisition Act for apportioning the compensation awarded under the award passed by the learned Land Acquisition Officer dated 20.08.1991. 2. The facts, in brief are that a notification under Section 4 of the Land Acquisition Act came to be issued on 04.02.1991 in respect of the land measuring 35 bighas and 3 biswas bearing Khasra Nos.121, 125, 135, 188, 235 and 238 Min, 263, 308, 319, 332, 336, 432 and 343 in village Chhatrawala @ Maharajpura in Tehsil Sanganer, District Jaipur which was acquired for a public purpose i.e. for the use by RIICO. 3. The Land Acquisition Officer, determined the compensation amount for the land in dispute amounting to Rs. 35,80,300/-. So far as the quantum is concerned, there is no challenge to the same. The dispute is between the brothers; all sons of Laxmi Narayan regarding Its apportionment. 4. The land in dispute was ancestral having come from a common ancestor one Raghunath. Raghunath had two sons namely Laxmi Narayan, father of the parties and one Gyarsa. Gyarsa died issueless and was survived by no heir i.e. neither wife nor children. The said Gyarsa died on 04.06.1981. So far as the appellants who are the sons of Laxmi Narayan are concerned, it is their case that Laxmi Narayan had five sons, namely Nanagram, the respondent No.1; Kanhaiyalal, Bhagwan Sahai, Srinarain and Buxaram, the subsequent four sons are the appellants. 5. The dispute has been raised on account of the fact that Nanagram, the respondent No. 1 alleged that so far as the land in dispute is concerned, after the death of Raghunath, it was divided equally between Laxmi Narayan and Gyarsa. It is the case of the respondent No. 1 that Gyarsa executed a registered Will on 19.07.1969 in favour of the respondent No.1 Nanagram bequeathing his entire share to the respondent No.1 Nanagram. It is the case of the respondent No. 1 that Gyarsa executed a registered Will on 19.07.1969 in favour of the respondent No.1 Nanagram bequeathing his entire share to the respondent No.1 Nanagram. It is further his case that on account of the aforesaid Will executed on 19.07.1969, the mutation of this half share of Gyarsa came to be made in favour of Nanagram on 14.08.1969 even though at that time Gyarsa was alive as he died only on 04.06.1981. 6. Nanagram, the respondent No.1 therefore, claimed that he was entitled to the entire half share of the compensation so far as the share of Gyarsa is concerned and in addition he is also entitled to claim ⅕th share in the compensation Iiable to be awarded in respect of the half share in the land held by his father Laxmi Narayan. 7. This contention of the respondent No.1 was questioned by the appellants on various grounds. The execution of the Will was challenged and the fact that at the time of execution of the Will, the deceased Gyarsa was not in a sound state of mind was amongst the grounds raised. It was also contended that the entire exercise conducted by Nanagram was tainted with fraud and misrepresentation, inasmuch as, assuming that the Will has been executed by Gyarsa on 19.07.1969, the same could not take effect till after the death of Gyarsa on 04.06.1981 and, therefore, the mutation entered in favour of Nanagram in respect of Gyarsa on 14.08.1969 is inconsequential. It was also alleged that after the death of Gyarsa when this fact came to their knowledge Nanagram immediately accepted the fact that each one of the brothers i.e. the appellants had an equal share in the entire land of their ancestor Raghunath and that he would not claim the exclusive half share of Gyarsa. It is said that this fact was admitted by Nanagram in front of village elders and the members of panchayat and community which met to resolve the dispute on this account between all the five sons of Laxmi Narayan. However, in spite of the above resolution Nanagram insisted on claiming exclusive rights to half share of Nanagram and 1 /5th share in Laxmi Narayan's share. 8. Accordingly an application under Section 39 of the Land Acquisition Act came to be filed and which was referred before the learned Civil Court. However, in spite of the above resolution Nanagram insisted on claiming exclusive rights to half share of Nanagram and 1 /5th share in Laxmi Narayan's share. 8. Accordingly an application under Section 39 of the Land Acquisition Act came to be filed and which was referred before the learned Civil Court. It is this reference, which came to be decided by the impugned judgment dated 29.03.1996 which is under challenge before this court in the present appeal. 9. Learned counsel for the appellant has raised several questions and grounds for the challenge to the impugned judgment and decree during the course of hearing. It was submitted that so far as the case of the respondent Nanagram is concerned, the same has been based upon the execution of the alleged Will dated 19.07.1969. It is important, therefore, to consider whether Nanagram has been able to prove his case based upon proof of the execution of the Will by the deceased Gyarsa in his favour on 19.07.1969 as required by law. 10. In this behalf, learned counsel for the appellants submitted that Nanagram, respondent No.1 having led the evidence before the court below failed to prove the execution of the Will as required by Section 68 of the Evidence Act. It is submitted that the alleged Will dated 19.07.1969 has been produced by the respondent No. 1 Nanagram who is the beneficiary under the alleged Will, Exhibit OP-2. It is submitted that the said Will is alleged to have been executed in the presence of the attesting witness No.1 Chaugan Sahay Sharma son of Shri Laxmi Narayan Sharma and attesting witness No.2 Kalyan son of Shri Rodu Ram. Based upon the above and in the light of Section 68 of the Evidence Act it is submitted by learned counsel for the appellant that the Will was required to be proved by producing at least one of the attesting witnesses. It is submitted that all that the respondent No.1 has done is to produce the scribe of the alleged Will, Radha Mohan Gupta. It is submitted that all that the respondent No.1 has done is to produce the scribe of the alleged Will, Radha Mohan Gupta. He, therefore, submitted that since the provisions of Section 68 of the Evidence Act have not been complied with by producing even one of the attesting witnesses, the Will in question cannot be said to have been proved in accordance with law and no reliance could be placed upon the said Will which has not been proved in accordance with law so as to give exclusive half share to Nanagram i.e. the share of Gyarsa son of Shri Raghunath. 11. Learned counsel for the respondent faced with the above, did not contest the above position, so far as the non-production of the attesting witness is concerned. He, however, submitted that Radha Mohan, the scribe, has been produced to prove the Will dated 19.07.1969. Alternatively, he submitted that if it is held that the Will had not been proved then the case should be remanded to the court below for recording the evidence on the aforesaid question regarding the execution of Will. It is contended that all that has been done by the court below is that it has framed the issue No.1 with regard to the fact as to whether the Will was a forged one and, therefore, void and invalid. Therefore, he submits that there was no occasion for the respondents to have led evidence in this behalf for proving the Will as no issue with regard to the execution of the Will has been framed, hence, the respondent cannot be saddled with the consequences of not having proved the Will. 12. I have considered the above submission of the learned counsel for the parties. 13. While it is correct that the issue No.1, as framed, is with regard to whether the Will was a genuine one, nonetheless, the aforesaid issue has been framed in the light of the averments made by the respondent claiming the half share of compensation payable to Gyarsa (Nanagram) on the basis of the alleged Will dated 19.07.1969. 13. While it is correct that the issue No.1, as framed, is with regard to whether the Will was a genuine one, nonetheless, the aforesaid issue has been framed in the light of the averments made by the respondent claiming the half share of compensation payable to Gyarsa (Nanagram) on the basis of the alleged Will dated 19.07.1969. Since the claim of Nanagram, the respondent No.1, is based upon the Will, as a condition precedent he was required to prove the execution of the Will in his favour in accordance with law including Section 63 of the Succession Act and the provisions of Section 68 of the Evidence Act and further that it was a valid one. The mere fact that issue No.1 was framed with regard to the validity of the Will cannot absolve the respondent No.1 to prove the execution of the Will as he based his claim on the execution of the Will in his favour. Section 63(c) of the Succession Act and Section 68 of the Evidence Act read as follows: "Section 63. Execution of unprivileged Wills. - Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules - (a) XXX XXX XXX (b) XXX XXX XXX (c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. Section 68. Section 68. Proof of execution of document required by law to be attested - If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied." 14. Section 68 of the Evidence Act stipulates that with a view to prove the execution of the document, at least one attesting witness is required to be examined in case such attesting witness is alive. It is, however, provided that in the case of registered document, the need for examining such an attesting witness can be dispensed with. However, the exception being in the case of Will. With regard to a Will the exception applicable to registered documents does not apply as would be evident from the proviso to Section 68 of the Evidence Act. This appears to be so as in the case of a Will since the Will takes effect and is brought out only after the death of the Testator and only the attesting witnesses can prove the execution of the Will in their presence by the Testator. From the evidence adduced also it is clear that the parties went to trial being fully conscious of the issue involved. The respondents witness Radha Mohan NAW-1 in his statement dated 31.05.1994 did not state that the attesting witness Chaugan Sahay is dead and the other witness NAW-2 Goverdhan has clearly deposed on 31.05.1994 that pkSxku ftUnk gS dY;ku dk irk ughaA Thus, the respondent Nanagram was required to produce Chaugan Sahay Sharma, one of the attesting witnesses, who was alive as per the statement of his own witness NAW-l Goverdhan. 15. 15. At the same time it may also be added that Section 63(c) of the Succession Act, 1925 requires the Will to be attested by two or more witnesses who have seen the executant sign or affix his mark in proof of execution of the Will. 16. The Hon'ble Supreme Court in the case of Janki Narayan Bhoir v. Narayan Namdeo Kadam, reported in 2003(1) WLC (SC) Civil 421 : AIR 2003 SC 761 dealing with this aspect held in paras 8 to 10 as follows: "8. To say Will has been duly executed the requirements mentioned in clauses (a), (b) and (c) of Section 63 of the Succession Act are to be complied with i.e., (a) the testator has to sign or affix his mark to the Will, or it has got to be signed by some other person in his presence and by his direction; (b) that the signature or mark of the testator, or the signature of the person signing at his direction, has to appear at a place from which it could appear that by that mark or signature the document is intended to have effect as a Will; (c) the most important point with which we are presently concerned in this appeal, is that the Will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will, or must have seen some other person sign the Will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgment of signature or mark, or of the signature of such other person, and each of the witnesses has to sign the Will in the presence of the testator. 9. It is thus clear that one of the requirements of due execution of Will is its attestation by two or more witnesses which is mandatory. 10. Section 68 of the Evidence Act speaks of as to how a document required by law to be attested can be proved. 9. It is thus clear that one of the requirements of due execution of Will is its attestation by two or more witnesses which is mandatory. 10. Section 68 of the Evidence Act speaks of as to how a document required by law to be attested can be proved. According to the said Section, a document required by law to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving an evidence. It flows from this Section that if there be an attesting witness alive capable of giving evidence and subject to the process of the Court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the Will has got to prove that the Will was duly and validly executed. That cannot be done by simply proving that the signature on the will was that of the testator but must also prove that attestations were also made properly as required by clause (c). of Section 63 of the Succession Act. It is true that Section 68 of Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the Will as envisaged in Section 63." (Emphasis supplied.) 17. Similarly in the case of Ishwar Dass Jain (dead) through LRs v. Sohan Lal (dead) by LRs, reported in AIR 2000 SC 426 , at para 14, the Hon'ble Supreme Court held as follows: "Under Section 68, if the execution of a document required to be attested is to be proved, it will be necessary to call an attesting witness, if alive and subject to the process of Court and is capable of giving evidence. But in case the document is registered then except in the case of a will it is not necessary to call an attesting witnesses, unless the execution has been specifically denied by the person by whom it purports to have been executed. But in case the document is registered then except in the case of a will it is not necessary to call an attesting witnesses, unless the execution has been specifically denied by the person by whom it purports to have been executed. This is clear from section 68 of the Evidence Act." (Emphasis supplied) 18. In that view of the matter, it was enjoined upon the respondent No. 1 Nanagram to have proved the Will in accordance with the provisions of Section 68 of the Evidence Act or in the alternative to prove that none of the attesting witnesses whose names figure in the document are alive on the date of the recording of the evidence. Since the respondents witness Goverdhan has clearly deposed that Chaugan Sahay Sharma, the alleged attesting witness is alive, it was the duty of the propounder to produce him. The mere fact that the scribe Radhamohan has been examined cannot be considered as fulfilling the requirement of Section 68 of the Evidence Act, 1872 or Section 63 of the Succession Act, 1925 as it is settled law that a scribe who is not an attesting witness, as in the present case, cannot substitute for Chaugan Sahay Sharma and Kalyan son of Rodu Ram, the two attesting witnesses of the Will in dispute. 19. In that view of the matter, the Will cannot be said to have been proved in accordance with law and further the submission of the learned counsel for the respondent cannot be accepted that on account of the non-framing of the issue, the case of the respondent was in any manner prejudiced as it is incumbent on the propounder to validly prove the execution of the Will as held by the Hon'ble Supreme Court in Janki Narayan's case (supra), a valid execution can be proved only by complying with Section 68 of the Evidence Act. As would be seen in the reply to the application filed by Nanagram, respondent herein the appellants had stated as follows : LoxhZ; X;kjlk us vius thoudky esa dHkh fdlh ds i{k esa viuh py o vpy lEirh dks olh;r dk gokyk izkFkhZ us fn;k gS og olh;r QthZ gSA 20. A bare reading of the above shows that the execution of the Will was denied and also the Will which was produced was alleged to be a fabricated one. 21. A bare reading of the above shows that the execution of the Will was denied and also the Will which was produced was alleged to be a fabricated one. 21. Thus, I am of the view that Nanagram who has based his claim for the compensation in respect of half share of Gyarsa deceased to be awarded exclusively to him, having based the same upon the execution of the alleged Will dated 19.07.1969 in his favour was required to prove its execution as required by Section 63 of the Succession Act read with the requirement of Section 68 of the Evidence Act and he has not proved the same in accordance with law, therefore, once the Will goes away, the claim of Nanagram for exclusive right to half share of Gyarsa also goes away. Accordingly, all five sons of Laxmi Narayan, the second son of Raghunath shall take equal share (1/5th) based upon survivorship. 22. Learned counsel for the respondent then sought to contend that since the Will had come from proper custody a presumption with regard to its genuineness ought to have been drawn as required by Section 90 of the Evidence Act. 23. So far as the above submission of the learned counsel for the respondent which is based upon a Division Bench judgment of this court in the case of Hazarilal & Anr. v. Shri Shyamlal & Ors., reported in 2007(1) WLC(Raj.) 789 , is concerned, the same in my view has no application; firstly the Will is alleged to have been executed on 19.07.1969 and in the instant case, the dispute arose in the year 1991 before the Land Acquisition Officer who passed the award on 20.08.1991. In that view of the matter, the period of thirty years as contemplated under Section 90 of the Evidence Act, 1872 had not come into effect from the date of its execution. The document i.e. the Will dated 19.07.1969 not having been proved to be thirty years and on the day it was produced before the Land Acquisition Officer in 1991 the provisions of Section 90 of the Evidence Act do not apply. This contention has no merit and is rejected. 24. Learned counsel for the respondent Nanagrarn further sought to contend that the production of the scribe Radha Mohan was sufficient as was held by the Hon'ble Supreme Court in the case of Savithri and Ors. This contention has no merit and is rejected. 24. Learned counsel for the respondent Nanagrarn further sought to contend that the production of the scribe Radha Mohan was sufficient as was held by the Hon'ble Supreme Court in the case of Savithri and Ors. v. Karthyayani Amma and Ors., reported in 2007 AIR SCW 6787. 25. I have perused the aforesaid judgment. Para 12 of the said report reads as follows: "12. Submission of the learned counsel that if both Krishnan Nair and Sankaran Nair were to bequeath their entire right, title and interest in the properties in favour of the respondents herein, by way of family arrangement or otherwise, no deed of partition was required to be executed, cannot be accepted as thereby they would have lost their interest in the property during their life time. They evidently intended to have life interest in the property, bequeathing the same in favour of the respondents. It must also be borne in mind that the parties are governed by Marumakkattayam School of Hindu Law. The sisters in the family have a role to play. The fact that the testator was totally dependent on his nephew and nieces is beyond any dispute. He lost his employment in the year 1959. Apart from the properties which were subject-matter of the Will, he had no other independent source of income. Being totally dependent on the respondents having been suffering from cancer, he was bound to place implicit faith and confidence only upon those who had been looking after him. The Will was admittedly registered. The testator lived for seven years after execution of the Will. He could change his mind; he did not. The very fact that he did not take any step for cancellation of the Will is itself a factor which the Court may take into consideration for the purpose of upholding the same. The question as to whether the Register was brought to the house of the propounder or he had gone to the Registrar's office is not a matter which requires serious consideration. But we may notice that the witness examined on behalf of the respondents, Raveendran DW2, categorically stated that he had gone to the Registrar's office to get the same registered. Execution of the will might have taken place at the house of Krishnan Nair, but according to DW2 he came to his office even after registration. But we may notice that the witness examined on behalf of the respondents, Raveendran DW2, categorically stated that he had gone to the Registrar's office to get the same registered. Execution of the will might have taken place at the house of Krishnan Nair, but according to DW2 he came to his office even after registration. Even the other Will was also scribed by him and he was an attesting witness therein also." 26. A look at para 12 of the aforesaid report goes to show that so far as the scribe, produced in that case, is concerned, he was also the attesting witness to the execution of the Will but unfortunately it is not so in the present case. In the instant case, the scribe Radha Mohan has only put his signatures with the endorsement on Exhibit OP-2 the Will dated 19.07.1969, which reads as under- jk/kkeksgu xqIrk izys[k lkaxkusj ykblsal uEcj 79 ntZ jftLVj uEcj 207 gS] 'kCn la[;k 520 djhcA SD/-19.07.1969" 27. Thus, I find that so far as Radha Mohan, the scribe is concerned, he has not made any endorsement on the Will (Exhibit OP-2) that he has seen the executant of the Will deceased Gyarsa putting his thumb impression in execution of the Will before him. Any statement in court contrary to what is mentioned in the document cannot be relied upon for this purpose. Moreover, the Will in question was executed allegedly before the Sub-Registrar and in the endorsement which was made before the Sub-Registrar, there is no endorsement to the effect that Radha Mohan was present at the time of the execution of the Will before the Sub-Registrar. 28. In the facts and circumstances, therefore, no benefit can be drawn by the respondents on the basis of the aforesaid judgment in Savithri's case and the fact that the scribe Radha Mohan has been produced to prove the execution of the Will dated 19.07.1969. 29. In view of the above, I am inclined to accept this appeal and set aside the judgment dated 29.03.1996 passed by the learned Civil Judge (Senior Division) and Additional Chief Judicial Magistrate, Jaipur District Jaipur in Land Acquisition Reference No.3/1992.30. In the facts and circumstances, therefore, it is directed that so far as the amount awarded by the Land Acquisition Officer is concerned, the same be apportioned equally. In the facts and circumstances, therefore, it is directed that so far as the amount awarded by the Land Acquisition Officer is concerned, the same be apportioned equally. The four appellants and the respondent No. 1 Nanagram shall be entitled to receive the compensation awarded equally in ⅕th share each. There shall be no order as to costs.Appeal allowed. *******