Research › Search › Judgment

Madhya Pradesh High Court · body

2012 DIGILAW 1247 (MP)

Subhash Kumar Tiwari v. Shankerlal

2012-12-04

AJIT SINGH, SANJAY YADAV

body2012
JUDGMENT Ajit Singh, J. 1. This is an appeal by the defendant in a suit for declaration and possession. The property in suit is a house situated at Balaghat bearing Nazul Sheet No. 25A, plot No. 34, area 112 square meters. Gopilal had purchased this property from Sunder Bai by a registered sale deed dated 8.8.1958. Gopilal died issueless in 1992 as a result of which his wife Birji Bai became the legal heir of the suit property. Narayan was elder brother of Gopilal. He had two wives, Pusi Bai and Ramkawri Bai. Respondent-plaintiff and appellant-defendant are step-brothers having been born from wives Pusi Bai and Ramkawri Bai respectively of Narayan, Gopilal and Birji Bai were thus uncle and aunt of plaintiff and defendant. 2. The case of plaintiff was that Birji Bai executed a Will dated 25.12.2002, Ex. P1, in his favour regarding the suit property and after her death on 2.9.2003 he became its owner. The plaintiff alleged that when he filed an application for mutation of his name before the Tahsildar he came to know that vide order dated 2.7.1993, Ex. P7, passed in Revenue Case No. 154A/92-93 the suit property had already been mutated in the name of defendant on the strength of a registered Will dated 2.7.1993, Ex. P5. In the suit the plaintiff therefore prayed that the order, Ex. P7, of the Tahsildar as well as the Will, Ex. P5, be declared null and void and he be given possession of the suit property. The plaintiff filed the certified copy of Will Ex. P5. 3. The defendant in his written statement denied the claim of plaintiff and stated that he has been living with Gopilal and Birji Bai since he was five years old and they had, in fact, adopted him as their son. The defendant also pleaded that Gopilal and Birji Bai even performed his marriage and when Gopilal died, the last rites were performed by him. According to the defendant, Birji Bai had made an application on 1.5.1993 for mutation of the suit property in his name which was duly allowed by the Tahsildar vide order, Ex. P5, and ever since then he is the owner and in possession of the suit property. The defendant further averred that Birji Bai had executed by first and last Will, Ex. P5, and ever since then he is the owner and in possession of the suit property. The defendant further averred that Birji Bai had executed by first and last Will, Ex. P5, in his favour which was also duly registered before the Sub-Registrar, Balaghat, in the presence of witnesses. 4. The trial Court, by the impugned judgment dated 8.8.2008, decreed the suit of plaintiff by holding that since the defendant did not produce the original Will of which Ex. P5 is a certified copy in the Court nor did he examine its attesting witnesses, the same was not trustworthy. The trial Court has also held that Birji Bai being an illiterate woman always used to put thumb impression on the documents whereas, Ex. P5, contains her signature and, therefore, it was forged. As regards the order, Ex. P7, passed by the Tahsildar mutating the name of defendant in revenue record, the trial Court has held that the order is an outcome of illegal proceeding without the knowledge of Birji Bai. The trial Court has also held that, if Birji Bai had executed a Will in favour of defendant there was no need for mutation of his name in the revenue record and likewise if the name of defendant had been mutated by the revenue Court on the application of Briji Bai there was no need for her to execute a Will in his favour. The trial Court found the evidence adduced by the plaintiff regarding Will, Ex. P1, executed in his favour more reliable and trustworthy and, therefore, held it to be valid. 5. The learned counsel for the defendant has argued that the Will, Ex. P1, was surrounded by suspicious circumstances which the respondent failed to remove and, therefore, the trial Court committed an illegality in decreeing the suit. In support of his submission, the learned counsel has cited a decision of the Supreme Court in Balathandayutham vs. Ezhilarasan, (2010)5 SCC 770 . The learned counsel for plaintiff, in reply, has defended the findings arrived at by the trial Court. He has even taken us through the evidence and documents brought on record. The learned counsel has also argued that the plaintiff has proved the Will, Ex. P1, in accordance with law and, therefore, the finding of the trial Court regarding its validity is well founded and does not call for any interference. 6. He has even taken us through the evidence and documents brought on record. The learned counsel has also argued that the plaintiff has proved the Will, Ex. P1, in accordance with law and, therefore, the finding of the trial Court regarding its validity is well founded and does not call for any interference. 6. In Balathandayutham (supra) the Supreme Court has held that when a Will is surrounded by suspicious circumstances, the person propounding the Will has a very heavy burden to discharge and unless it is satisfactorily discharged, Courts will be reluctant to treat the document as the last Will of the testator. 7. The plaintiff has claimed his title over the suit property solely on the basis of Will, Ex. P1. We, therefore, have to examine whether the Will is surrounded by suspicious circumstances and the plaintiff has discharged his burden in removing them. Because if he has failed to do so, his suit will fail. 8. The Will, Ex. P1, is handwritten and unregistered. The plaintiff in para 10 of his cross-examination has clearly admitted that Birji Bai due to old age was anable to speak and sign. Rekhlal Soni (PW 3) states that Birji Bai was aged 90 years and he had written the Will as told by her in the presence of Dr. Dayanand Joshi, Dalchand and Laxmi Prasad. He, however, says that Birji Bai did not dictate the Will. But there is no recital in the Will that it was read over and explained to her. Also Dr. Dayanand Joshi (PW 2), the only attesting witness examined by the plaintiff, says that he does not know who wrote the Will. Birji Bai was illiterate. It, therefore, cannot be held with certainty that Rekhlal Soni wrote what was actually told by Birji Bai more particularly when the plaintiff himself says that she was unable to speak. The statement of Dr. Dayanand Joshi about his not knowing who wrote the Will also creates a suspicion that it was written in the presence of Birji Bai. 9. There is yet another reason which creates a suspicion that the plaintiff and his witnesses Dr. Dayanand Joshi and Rekhlal Soni are not speaking truth in respect of the execution of Will Ex. P1. A closer look of the Will shows that the thumb impression of Birji Bai was obtained on a plain paper before it was actually written. 9. There is yet another reason which creates a suspicion that the plaintiff and his witnesses Dr. Dayanand Joshi and Rekhlal Soni are not speaking truth in respect of the execution of Will Ex. P1. A closer look of the Will shows that the thumb impression of Birji Bai was obtained on a plain paper before it was actually written. We say so because we find that gaps between the lines of Will become smaller and smaller towards the end so as to adjust with the already obtained thumb impression despite there being sufficient space left in the paper. This mode of writing with no explanation by the plaintiff regarding narrowing of the gaps between to lines creates a very strong suspicious circumstance against the genuineness of the Will. It fact, it leads to an inference that the Will has been prepared fraudulently. 10. There is one more circumstance which creates a suspicion about execution of Will, Ex. P1, by Birji Bai in favour of the plaintiff. The plaintiff has admitted in his evidence that the defendant had been living with Birji Bai ever since he was 12 years of age. The plaintiff has also admitted that he lived separately from them at a place called Sarekha. The plaintiff even says that although his wife and children did not visit him, they visited the defendant who is in occupation of the suit property. The plaintiff then says that the cremation of Pooranlal was performed by the defendant. Dr. Dayanand Joshi has also deposed that the last rites of Birji Bai were performed by the defendant. From this evidence it can safely be held that the love and affection of Birji Bai lay with the defendant. It is, therefore, difficult to believe that Birji Bai would execute her Will in favour of the plaintiff who has been living separately from her at a different place. 11. It is also to be noted that vide order 2.7.1993, Ex. P4, the Tahsildar in a revenue case has mutated the suit property in the name of defendant and the plaintiff’s appeal against that order has been dismissed. There is a presumption of correctness of proceedings before a quasi-judicial authority. The defendant being in possession has a title over the suit property against all except the one who has a better title. 12. The plaintiff solely relied on the Will, Ex. There is a presumption of correctness of proceedings before a quasi-judicial authority. The defendant being in possession has a title over the suit property against all except the one who has a better title. 12. The plaintiff solely relied on the Will, Ex. P1, to prove his title. But as earlier discussed the Will, Ex. P1, is not reliable and encircled by suspicious circumstances. The plaintiff has thus failed to prove any title over the suit property and his suit must fail. 13. The appeal is allowed. The judgment and decree passed by the trial Court are set aside and the plaintiff’s suit is dismissed with costs throughout.