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2010 DIGILAW 487 (MP)

Badri Bai v. Daulatram

2010-04-28

A.M.NAIK

body2010
Judgment ( 1. ) This judgment disposes of second appeal No. 252/01 and second appeal No. 254/01 because both the appeals arise from common judgment and decree and involve the following common substantial questions of law:- "1. Whether the Courts below erred in substantial error of law in holding that the Will Ex. D/l is proved when the attestation of the Will as envisaged under section 63 (c) of Indian Succession Act, 1925 has not been proved, in view of the decision of Supreme Court, Girja Datt Singh v. Gangotri Datt Singh AIR 1955 SC 346 ? ( 2. ) If the Will is not proved whether defendants are having any interest in the suit property?" 2. Briefly stated relevant facts are that the plaintiff and her mother Mahila Motya instituted a suit against defendants/respondents for declaration of title and restoration of possession with allegations that the suit land comprised in survey No. 49 in area 11 Bigha 11 Biswa, survey No. 113 in area 10 Bigha 16 Biswa and survey No. 242 in area 22 Bigha 10 Biswa, situated in village Ajapura, Tahsil Sheopurkalan, District Morena (presently District Sheopur), was owned byPrabhulal Dhakad, father of the plaintiff/appellant, who died somewhere in the year 1975. The suit property devolved upon plaintiffs after the death of Prabhulal Dhakad. Mahila Motya, the mother of the plaintiff/appellant gave the suit land to defendant No. 1 -Daulatram for cultivation on a condition that after deducting usual expenses, he would give crops to plaintiff Mahila Motya. Defendants started cultivating the suit land. They did not provide any crop to Mahila Motya. Lastly, in the year, 1982, the defendants disputed the title of the plaintiffs, hence, the suit for declaration that the plaintiffs are Bhumiswami of the suit land, in equal share. Plaintiffs also prayed for restoration of possession by the defendants. ( 3. ) Defendants by submitting their written statement refuted the claim of the plaintiff. They inter alia contended that the Will (Ex.D/1) was executed by Prabhulal Dhakad in their favour. They asserted their possession by virtue of the said Will (Ex.D/1). ( 4. Plaintiffs also prayed for restoration of possession by the defendants. ( 3. ) Defendants by submitting their written statement refuted the claim of the plaintiff. They inter alia contended that the Will (Ex.D/1) was executed by Prabhulal Dhakad in their favour. They asserted their possession by virtue of the said Will (Ex.D/1). ( 4. ) Learned trial Judge after recording the evidence dismissed the suit on merits in respect of survey No. 242 in area 22 Bigha 10 Biswa, however, granted a decree in favour of the plaintiff in respect of survey No. 49 in area 11 Bigha 11 Biswa and survey No. 113 in area 10 Bigha 16 Biswa and directed for restoration of possession by defendants No. 1. Aggrieved by it, plaintiff No. 2-Badri Bai preferred Civil Appeal No. 9/2000 whereas defendant Daulatram preferred civil Appeal No. 5 A/2000. Civil Appeal No. 9/2000, preferred byplaintiff No. 2-Badribai having been dismissed and Civil Appeal No. 5 A/2000 having been decreed in favour of defendant Daulatram, Second Appeal Nos. 252/01 and 254/01 have been preferred, by the plaintiff/appellant which are heard together in the light of the substantial questions of law mentioned hereinabove. ( 5. ) Shri T.C. Singhal, learned counsel for the appellant argued that the Will (Ex. D/l) has not been proved legally. On the other hand, respondents learned counsel supported the impugned judgment that the Willi has been duly proved. ( 6. ) Considered the submissions and perused the record. ( 7. ) Will is an ambulatory document, which is required to be proved according to section 63 of the Indian Succession Act, 1925 and section 68 of the Indian Evidence Act, 1872 as under :- 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) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect-to the writing as a Will. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect-to the writing as a Will. (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." xxxxx xxxxx xxxxx xxxxx 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 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]" ( 8. ) Attesting witness Devishankar Singhal (DW-2) and another witness Prafulchandra Gupta (DW-3) have been examined. They clearly stated that the contents of the Will were made known to the testator. After understanding the same, he executed the Will (Ex. D/l) with his free will and without any pressure. Attesting witnesses have also seen the testator executing the Will and they also put their signatures of attestation in the presence of the testator. Thus, the Will cannot be said to have net been proved in due manner. Learned counsel for the appellant has been unable to point out any deficiency in the matter of execution of the Will. In the result, the finding about execution of the Will cannot be said to be faulty. Thus, the Will cannot be said to have net been proved in due manner. Learned counsel for the appellant has been unable to point out any deficiency in the matter of execution of the Will. In the result, the finding about execution of the Will cannot be said to be faulty. Accordingly, substantial question of law No. 1 is answered against the appellant. ( 9. ) Apart from the aforesaid, it may be observed that the plaintiffs themselves in paragraph 3 of the plaint have clearly staled that the land in question was given to defendant No. 1 for cultivation. It has been further alleged that after 7-8 years, the title of the plaintiffs was denied. ( 10. ) Section 168 of the M.P. Land Revenue Code, 1959 prohibits a person from leasing out his agricultural land for more than one year during any consecutive period of three years. In the case in hand, the land was given for cultivation to defendant No. 1 as admitted by the plaintiffs for consecutive 7-8 years. By virtue of section 169 of the M.P. Land Revenue Code, 1959 the defendants have become occupancy tenants and thereafter Bhumiswamis. This being so, it is found that the defendants have acquired status of Bhumiswamis on the aforesaid land. In this view of the matter, both the appeals fail and are hereby dismissed, however, with no order as to costs.