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2010 DIGILAW 494 (MP)

Than Singh v. Majboot Singh

2010-04-29

A.M.NAIK

body2010
JUDGMENT 1. This appeal has been heard on the following substantial question of law : "Whether on the basis of the evidence adduced by attesting witness Ram Prasad (DW 3), can it be said that the propounded of the Will has not proved the due execution of the Will (Ex. D/5), as required under section 63 (c) of the Indian Succession Act, 1925 and section 68 of the Indian Evidence Act?" 2. Briefly stated relevant facts are that the disputed land belonged to Bhairosingh, who had three sons namely, Majboot Singh – plaintiff No.1, Hukum Singh -- plaintiff No. 2 and Than Singh -- defendant No.1. Civil suit No. 26A/67 was instituted by Bhairosingh for declaration of title, which ultimately stood decreed from this Court in SA No. 34/82 vide judgment, dt. 12.2.1982 (Ex. P/1). During pendency of this appeal, Bhairosingh died and the name of Than Singh (present defendant/appellant) was brought on record on the strength of an alleged Will dt. 15.10.1979. It is alleged in the plaint that plaintiffs and defendant No.1 being real brothers, inherited the suit land with 1/3rd share each. Declaration to the said effect was sought with mesne profits at the rate of Rs. 1,000/- p.a. 3. Defendant/appellant submitted his written statement refuting thereby the claim of the plaintiffs. It was stated that Bhairosingh executed a Will during his lifetime in respect of suit land on 15.10.1979 in favour of defendant/appellant. Thus, the plaintiffs have no right, title or interest in the suit land. Moreover, name of defendant/appellant alone was substituted in the case of Bhairosingh in SA No.34/82. Plaintiffs being bound by these proceedings are estopped from challenging the Will. 4. After recording the evidence, learned trial Court dismissed the suit on the ground that the defendant/appellant was substituted in S.A No. 34/82 before this Court and was accepted as legal heir of Bhairosingh. In appeal, learned lower appellate Court found that substitution does not amount to acceptance of defendant alone as legal heir. Alleged Will marked as Ex. D/5 has been disbelieved by the learned lower appellate Court. Ultimately, the appeal has been allowed and the suit stood decreed in favour of plaintiffs. 5. Shri S.K. Shlivastava, learned counsel for the appellant and Shri Prakhar Dhengula, learned counsel for plaintiffs/respondents made their respective submission. 6. Alleged Will marked as Ex. D/5 has been disbelieved by the learned lower appellate Court. Ultimately, the appeal has been allowed and the suit stood decreed in favour of plaintiffs. 5. Shri S.K. Shlivastava, learned counsel for the appellant and Shri Prakhar Dhengula, learned counsel for plaintiffs/respondents made their respective submission. 6. It is submitted by Shri Shrivastava, learned counsel that the Will was accepted by the plaintiffs, as is apparent from the substitution of defendant/ appellant in place of father in SA No. 34/82. On perusal, it may be seen that there is no iota on record to establish that the plaintiffs were aware of setting up of the alleged Will in the aforesaid second Appeal. There is no paper on record to show that the plaintiffs were made aware of the substitution of Than Singh in place of his father on the strength of alleged Will. 7. It is true, that SA No. 34/82 was submitted by Bhairosingh, father of the parties to the suit. On his death during pendency of appeal. Than Singh alone submitted an application for being substituted in place of the deceased as the sole representative on the strength of alleged Will dt. 15.10.1979. Application was allowed and Than Singh alone was substituted as legal representative of the deceased father. The term "legal representative" is defined in clause (11) of section 2 of the Code of Criminal Procedure as follows :- "legal representative' means a person who in law represents the estate of a deceased person, and includes any person who intermedelles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. Perusal of this definition makes it clear that the term legal representative' is not synonymous to 'legal heir' Order 22 Rule 3 read with Rule 11 of the Code of Civil Procedure empowered this Court in case of death of appellant to substitute for him his legal representative. It was merely for the purpose of empowering the Court to proceed with the appeal and nothing more. This Court while deciding the application under Order 22 Rule 3 read with Rule 11 CPC was not required to decide the heir ship of the deceased. It was merely for the purpose of empowering the Court to proceed with the appeal and nothing more. This Court while deciding the application under Order 22 Rule 3 read with Rule 11 CPC was not required to decide the heir ship of the deceased. The decision as to who was the legal representative was limited for the purpose of carrying on the appeal and cannot have the effect of conferring any right to heir ship or to property. I am fortified in my this view by this Court's decision in the case of the Kalyanmal Mills Ltd. v. Walimohammed (1965 JLJ 113= AIR 1965 MP 72 ), wherein it is observed: . "The effect of an order passed under Order 22, Rule 5 would not be to confer on the intermeddler any right or title or interest, if there be none. Such an order is only for the purposes of the suit itself The right of the intermeddler has to be adjudicated upon independently of such order." Thus, the legal representatives are imp-leaded in the proceedings only for the purpose of prosecuting the case and the right as legal heir is to be established in an independent proceeding and accordingly an order of substitution under Order 22 of CPC does not operate as res judicata in a subsequent suit. I may successfully refer here the Full Bench Decision of Punjab and Haryana High Court in the, case of Mohindar Kaur v. Piara Singh (FB) [AIR 1981 Punjab & Haryana 130], wherein it has been observed :- "9. We are, therefore, of the opinion that in essence a decision under Order 22 Rule 5, Civil Procedure Code, is only directed to answers an orderly conduct of the proceedings with a view to avoid the delay in the final decision of the suit till the persons claiming to the representatives of the deceased party get the question of succession settled through a different suit and such a decision does not put an end to the litigation in that regard. It also does not determine any of the issues in controversy in the suit. Besides this it is obvious that such a proceeding is of a very summary nature against the result of which no appeal is provided for. It also does not determine any of the issues in controversy in the suit. Besides this it is obvious that such a proceeding is of a very summary nature against the result of which no appeal is provided for. The grant of an opportunity to lead some sort of evidence in support of the claim of being a legal representative of the deceased party would not in any manner change the nature of the proceedings. In the instant case the brevity of the order (reproduced above) with which the report submitted by the trial Court after enquiry into the matter was accepted, is a clear pointer to the fact that the proceedings resorted to were treated to be of a very summary nature. It is thus manifest that the Civil Procedure Code proceeds upon the view of not imparting any finality to the determination of the question of succession or heir ship of the deceased party." This Court also in the case of Raghunathsingh v. Gangabai ( 1960 JLJ 998 = 1961 MPLJ 398 ) has observed as under:- "It is a well established principle that the mere fact of the substitution of any claimant does not in any manner finally make him the heir to the deceased litigant or fetter the other party to the litigation from questioning his claim in an appropriate proceeding. The legal representative brought on record is for the limited purpose of conducting the litigation. It is, therefore, left open to Raghunath Singh if he considers fit, to get the dispute between him and Bhumiswami in regard to the succession to the estate of Gangabai, cleared in a separate litigation. At this juncture, it is useful to quote the following passage from the Division Bench decision of Madras High Court in the case of Subramania Pillai v. Masterly (AIR 1976 Madras 303) :- "It is not always a legal requisite that, inevitably, only the heirs, all of them or any of them, should figure as legal representatives. At this juncture, it is useful to quote the following passage from the Division Bench decision of Madras High Court in the case of Subramania Pillai v. Masterly (AIR 1976 Madras 303) :- "It is not always a legal requisite that, inevitably, only the heirs, all of them or any of them, should figure as legal representatives. The procedural law requiring representation will stand satisfied if there is substantial representation in the sense that all that could be done in defence was done by someone interested in the issue in the suit." This apart, it may be seen that there is no iota on record to establish that the plaintiffs were made aware of claim of Than singh to the property of the deceased father on the strength of the alleged Will. It is nowhere established that the plaintiffs had accepted the Will and had conceded to the substitution of Than singh in place of deceased Bhairosingh as his sole legal heir on the basis of the alleged Will. Accordingly, it is held that the defendant/appellant does not derive any benefit from his substitution as legal representative in SA No. 34/82 in place of the deceased Bhairosingh. 8. It is further contended by Shri Shrivastava, learned counsel that the Will has been duly proved. Attesting witness, namely, Ram Prasad (DW-3) was examined to prove the Will, which was essential under section 63 of the Indian ' Succession Act, 1925. He also placed reliance on the decision of the apex Court in the case of Naresh Charan Das Gupta v. Paresh Charan Das Gupta ( AIR 1955 SC 363 ) to contend that the Will was executed in a single meeting/sitting in the presence of testator, scribe and attesting witnesses. Therefore, according to him, the Will ought to have been held proved and the decree granted by the lower appellate Court is therefore liable to be set aside. 9. Therefore, according to him, the Will ought to have been held proved and the decree granted by the lower appellate Court is therefore liable to be set aside. 9. Clause (c) of section 63 of Indian Succession Act, 1925 reads as under:- "(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 or 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." Perusal of the aforesaid makes it clear that both the attesting witnesses must have seen the testator signing or affixing his mark on the Will. Each witness is required to put his signature in attestation of Will in presence of the testator. Applying these yardsticks, it may be seen that firstly, another alleged attesting witness Shivnarayan has not been examined at all for justifiable reason. Ram Prasad, who has been examined as DW-3, has merely stated that he saw the testator putting his signature on the Will. The witness has nowhere stated that he put his signature in the presence of the testator. He has further stated in his statement that the testator put his signature in the presence of another alleged attesting witness, namely, Shivnarayan. He too, has not stated that Shivnarayan put his signature as an attesting witness in presence of the testator. In view of the aforesaid, Will (Ex. D/5) has been rightly held to be not proved in accordance with section 63 of Indian Succession Act, 1925. In the case of Naresh Charan (supra), it was found that the execution awl attestation of the Will in question took place in one sitting at the residence of a particular witness. In the instant case, attesting witness Ram Prasad has stated that the Will was brought before him in prepared form and he was asked to put his signature. In the case of Naresh Charan (supra), it was found that the execution awl attestation of the Will in question took place in one sitting at the residence of a particular witness. In the instant case, attesting witness Ram Prasad has stated that the Will was brought before him in prepared form and he was asked to put his signature. Additionally, it may be seen that another attesting witness Shivnarayan was present at the time of statement of Ram Prasad (DW 3). Despite his presence, he was not examined. Thus, learned lower appellate Judge has rightly found the Will in question to be not proved. Requirement of section 63 (c) of Indian Succession Act 1925 and section 68 of Indian Evidence Act 1872 are not found to have been complied with in due manner. Accordingly, the substantial question of law is answered against the appellant. 10. Shri Shivnarayan, learned counsel further argued that decree for declaration and partition to the extent of 1/6th share could not have been granted without joinder of sisters. This is merely a technical objection because it has been found on the basis of objection of the defendant/appellant that besides these three sons, three daughters are left by Bhairosingh. Learned lower appellate Judge taking it into consideration, declared all the six legal heirs of Bhairosingh entitled to 1/6th share each. Thus, appellate is not aggrieved at all. 11. Resultantly, the appeal fails and is hereby dismissed with no order as to costs.