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2012 DIGILAW 132 (CHH)

HORILAL v. JUNGLU

2012-05-04

PRASHANT KUMAR MISHRA

body2012
JUDGMENT 1. This appeal u/s 96 of the Code of Civil Procedure has been preferred by the appellant challenging dismissal of part of the relief claimed in the suit, it being decreed partly in his favour and not in its entirety. 2. Original plaintiff Horilal and original defendants i.e., defendants no. 1 Junglu, No.2 Gendlal and No.3 Shiv Prasad Bhuruwa, all sons of Sukru, are real brothers. According to the plaintiff, Sukru was not well off and was initially residing at Simga and later on shifted to village Jhara. He was engaged in the business of Betel leaves. Defendant Junglu came to Raipur and became Coolie in the goods shed and had developed ill habits. Defendant no.2 Gendlal was brought up by Mana Bai, his maternal aunt (Mausi). Thus Junglu and Gendlal used to reside separately and Sukru was residing with the remaining two sons namely plaintiff Horilal and original defendant no.3 Shiv Prasad in the village for a substantial period and thereafter they came to Raipur. The plaintiff also came to Raipur in 1956-1957 and made handsome profits in the business of Betel leaves. He obtained one shop on lease from Municipality in the name of his father bearing Municipal No.340 at Goal Bazar. This shop is contained in Schedule "B" enclosed with the plaint. He purchased one house in the name of his father at Aminpara, Raipur, described in Schedule 'C of the plaint in the year 1962. He also purchased some land in his own name and some other pieces of land in the name of his father at village Semaria in 1965. All these properties were purchased by the plaintiff from his self-earned income though in the name of his father. By registered will dated 4th August 1975 Ex-, father Sukru bequeathed all his property in the name of plaintiff. Sukru died in Raipur on 08.12.1978. After his death, the defendants started dispute about the ownership of the properties mentioned in schedule B & C giving rise to proceedings U/s 145 of the Code of Criminal Procedure which in turn gave rise to filing of present suit. 3. The defendants contested the suit inter alia pleading and denying that defendant no. 1 came to Raipur leaving his father. They also denied that defendant no.2 was brought up by Mana Bai (Mausi). 3. The defendants contested the suit inter alia pleading and denying that defendant no. 1 came to Raipur leaving his father. They also denied that defendant no.2 was brought up by Mana Bai (Mausi). It has been pleaded by them that the defendants used to be a part of the joint family and were assisting their father in the business as in fact their father Sukru was not happy with the plaintiff because he was not assisting in the business of the joint family. He was in the habit of doing his own work but then used to come back with his father. According to the defendants, father Sukru was doing business alongwith the defendants leaving plaintiff Horilal who was looking after the agricultural operations in the village. It has been further stated that the plaintiff was very aggressive in nature and that the shop at Gol Bazar was obtained on lease by defendant no.2 and the property purchased by Sukru belongs to joint family and the alleged will relied upon by the plaintiff is a forged document having been obtained from the father by making false representation in a fraudulent manner. It has also been stated that defendants 2 & 3 are residing in the house at Aminpara and the shop at Golbazar is in possession of defendant no.2 and the agricultural lands are in joint possession of all the parties. 4. At the end of trial, the learned trial Judge has recorded findings that the will is not proved as it is not a genuine document and that various properties purchased in the name of respective purchasers mentioned in the sale deed belongs to them and the shop at Gol Bazar is leased out in the name of defendant No.2 Gendlal and is shown as such in the municipal records belong to him, therefore, the plaintiff was declared exclusive owner of only such property which was purchased in his own name or in the name of his minor son Devnarayan. In the property purchased in the name of Sukru, plaintiff was declared 1/4th share-holder/ownership and his suit with regard to the shop at Gol Bazar has been dismissed. 5. It has been argued by the appellant that the finding with regard to the will Ex.P-10 is absolutely perverse in as much as the will has been proved in accordance with law. 5. It has been argued by the appellant that the finding with regard to the will Ex.P-10 is absolutely perverse in as much as the will has been proved in accordance with law. According to him, the trial Court has not at all discussed the evidence available on record in its true perspective and has recorded perverse finding with regard to execution of will as well as with regard to the nature of properties purchased in the name of Sukru and the shop situated at Gol Bazar. 6. Per contra, learned counsel for the respondent has supported the impugned judgment. He would submit that from the evidence available on record, it is not proved that the will Ex.P.10 is a genuine document and therefore, the trial Court has rightly disbelieved the execution of will. 7. The main thrust of the argument put-forth by the appellant is about the finding concerning the will Ex.P.10. In paragraphs 5 to 8 of the impugned judgment the trial Court has dealt with Issue no.3 as to whether the will is forged inter alia finding that the contents of the will is contrary to the pleadings made in the plaint with regard to nature of property and that P.W.2, the attesting witness, says that Horilal was present at the time of execution of will whereas Horilal himself says that he was not present at the time of execution of will and he became aware about its execution after one month. 8. In the will Ex.P.10, it has been stated that all the immoveable properties have been purchased by him from his own income and since three other sons except plaintiff Horilal are residing separately, he is bequeathing the property to plaintiff Horilal who is taking care of him. The will covers all the properties i.e., the house at Aminpara, land at village Semaria, shop at Gol Bazar etc. In his evidence P.W.1 Horilal says that he is not at all involved in execution of Will Ex.P.10 nor he had gone to get it registered. According to him, he became aware about the execution of the will after one month when he was informed by one Punaram. However, at para 16, he says that the will was in his possession for about one month from the date of execution. According to him, he became aware about the execution of the will after one month when he was informed by one Punaram. However, at para 16, he says that the will was in his possession for about one month from the date of execution. He further contradicts and says that the recital made in the will to the effect that the property is self-acquired property of Sukru, is incorrect. He further says that the house at Gol Bazar is in occupation of all the brothers whereas the shop at Gol Bazar is in possession of Gendlal. P.W.2 Bansilal is the attesting witness of the will. He says that the executant Sukru appended his thumb impression in his presence. However, in his examination-in-chief, he has not stated that he put his signature in front of executant Sukru. He says that plaintiff Horilal had called him for being attesting witness and he as well as Horilal were present at the time of execution. He also submits that he along-with Horilal used to visit Hanuman Temple every day and both have old acquaintance. There is one more inconsistency in the statement in as much as P.W.2 Bansilal has put his signature on the will whereas in Para 4 of the cross examination he says that he had appended thumb impression from his right thumb. However, in the very next line, he says that the process of putting thumb impression of Sukru and his signature was done simultaneously. 9. On the basis of the above statement made by the witness P.W.1 Horilal and the attesting witness P.W.2 Bansilal, it appears that there is discrepancy/inconsistency/ contradiction of crucial nature concerning presence of Horilal at the time of execution of will and the fact as to the statement made by P.W.2 that he put his right hand thumb impression on the will and in the next line making statement that he had signed the documents. This inconsistency assumes greater significance for the fact that in Examination-in-Chief itself, this witness was shown the document and yet he falters as to whether he put his thumb impression or had signed over the document. It is also to be seen that P.W.1 Horilal claims to be a person having saintly nature and is engaged in worshipping god (Pujapath and Bhajan Kirtan). P.W.2 Bansilal says that he and Horilal used to meet every day and visit the temple together. It is also to be seen that P.W.1 Horilal claims to be a person having saintly nature and is engaged in worshipping god (Pujapath and Bhajan Kirtan). P.W.2 Bansilal says that he and Horilal used to meet every day and visit the temple together. According to him, Horilal was present at the time of execution whereas Horilal himself denies this fact yet he makes statement that the will was in his possession for about a month after execution. If the statement of P.W.2 Bansilal Sharma is put to close examination, it will be seen that in Para 2 of the cross examination he admits that when he put his signature on the will it was already typed and he was requested to put his signature whereas in Paragraph-l of Examination-in-Chief, he says that he had explained about the contents of Ex.P.10 to executant Sukru as well as to Horilal meaning thereby that neither Sukru nor Horilal had understood the contents of Ex.P.10 before it was read over and explained to them by P.W.2 Bansilal. However, this part of statement in paragraph 1 is contrary to his own statement in para 2 wherein he says that when he signed the document it was already typed. Name of the scribe is not mentioned in the document. If the statements of P.W.2 Bansilal and P.W.1 Horilal are believed, then it is not known as to who typed the document Ex.P.10 and whether it was typed in the same manner and in the same words in which the executant wanted it to be written. When the will is not a 'holograph' will but it is a typed document then it becomes important and rather necessary for the person who is required to prove the genuineness of the will to bring evidence on record as to the person who typed the document or an evidence to the effect that the document was typed verbatim as dictated by the executant. There is total absence of evidence on this aspect, therefore, considering the entire evidence on record, this Court fully agrees with the finding recorded by the trial Court that the will appears to be suspicious and not genuine. 10. In H. Venkatachala Iyengar Vs. There is total absence of evidence on this aspect, therefore, considering the entire evidence on record, this Court fully agrees with the finding recorded by the trial Court that the will appears to be suspicious and not genuine. 10. In H. Venkatachala Iyengar Vs. Thimmajamma and others, AIR 1959 SC 443 , it has been held that the propounder of a will has to prove the due and valid execution of it and that if there are suspicious circumstances concerning execution of the will, the propounder must remove the said suspicion from the mind of the Court by cogent and satisfactory evidence. In Gorantla Thataiah Vs. Thotakura Venkata Subbaiah and others, AIR 1968 SC 1332 it has been held that if the propounder takes a prominent part in the execution of the will which conters substantial benefit on him that itself is a suspicious circumstance attending execution of the will and in appreciating the evidence in such a case, the court should proceed in vigilant and cautious manner. Yet again in Ramchandra Rambux Vs. Champabai and other, AIR 1965 SC 354; it has been held that when the propounder takes a prominent part, that itself is generally treated as suspicious circumstance attending the execution of the will. 11. In Janki Narayan Bhoir Vs. Narayan Namdeo Kadam, (2003) 2 SCC 91 , it has been held that the requirement of due execution of will u/s 63(c) of the Succession Act is its attestation by two or more witnesses, which is mandatory. 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, he 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 it must also be proved that attestations were also made properly as required by section 63(c) of the Act. It is true that Section 68 of the Evidence Act does not say that both or all the attesting witnesses must be examined. It is true that Section 68 of the Evidence Act does not say that both or all the attesting witnesses must be examined. In a way, section 68 gives concession to those who want to prove and establish a will in a court of law by examining at least one attesting witness even though the will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that one attesting witness examined should be in a position to prove the execution of a will. To put in other words, if one attesting witness can prove execution of the will in terms of clause (c) of Section 63 viz. attestation by two attesting witnesses in the manner contemplated therein, the examination of the other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there was due execution of the will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the will by the other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution of the will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act. 12. In Dinesh Kumar Vs. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act. 12. In Dinesh Kumar Vs. Khazan Singh and others, AIR 1988 Delhi 273 it has been held that when a testatrix made her husband the sole legatee to the exclusion of other close relations such as sons and daughters and it was the husband who got the draft of the will prepared by an advocate, arranged for the scribe and attesting witnesses one of whom was his close friend and the fact of making will had been a closely guarded secret even 3 years after the death of the testatrix, one of the attesting witnesses was not examined though available and the draft will though in existence was not produced and the advocate though alive was not examined, it was held that the will was not genuine. 13. In the case before this Court, P.W.1 Horilal the beneficiary of the will says that he did not participate in execution of the will and the will was handed over to him by his father which he kept with himself for about one month. There is no evidence on record that thereafter the will was retained by his father and it was handed over to him before his death. The suit was filed in August 1991 i.e., after about 16 years from the date of execution of the will. From his evidence it is not clear as to whether the will was used by him at any point of time getting his name recorded in all the properties. Contrary to this, P.W.2 Bansilal Sharma, a close friend of P.W.2 Horilal states that at the time of execution he was called by Horilal and Horilal was present on the spot. There is no evidence on record to the effect that Punaram, the other attesting witness is not alive. P.W.2 Bansilal Sharma has not stated that Punaram also signed in his presence. Therefore, in view of the judgment of Supreme Court in the matter of Janki Narayan Bhoir (supra) execution of the will is not proved and it cannot be acted upon. 14. P.W.2 Bansilal Sharma has not stated that Punaram also signed in his presence. Therefore, in view of the judgment of Supreme Court in the matter of Janki Narayan Bhoir (supra) execution of the will is not proved and it cannot be acted upon. 14. It has been averred in the plaint that the suit-shop was taken from the Municipality by the plaintiff in the name of his father and the house at Aminpara was also purchased by the plaintiff in the name of his father. Similarly, some lands were purchased at village Semaria in the name of Sukru while some others were purchased in the name of plaintiff. The Municipality Shop has been shown in Annexure B with the plaint whereas the house at Aminpara is Annexure C and the agricultural lands at Simariya are shown in Annexure-D. The sale deed in the name of Sukru concerning house at Aminpara is Ex.P-1 whereas Ex.P-2 is sale deed in the name of Sukru for 5.25 acres of land at village Semaria, Another sale deed in the name of minor Deonarayan, S/o of plaintiff Horilal for 1.61 acre at village Semaria is Ex.P-3 whereas Ex.P-4 is a sale deed for 0.06 decimal land in the name of plaintiff Horilal at village Semaria. The other sale deeds for small pieces of land at village Semaria in the name of Horilal is Ex.P-5, P-6 & P-7 (0.606 hectares), Ex.P-8 (one acre) and Ex.P9 (0041 decimal). 15. According to the plaintiff, he was residing with his father whereas the defendants were residing separately. However, in Para-9 of the Examination in Chief he admits that the house at Aminpara is in possession of defendant Gendlal and Shiv Prasad. According to the plaintiff, he is of saintly nature and is engaged in worshipping god. However, according to the plaint, his business of Betel leaves was growing and he purchased all the properties from his own income in the name of his father and himself. In the will Ex.P-1 heavily relied by the plaintiff, the testator Sukru has mentioned that the properties covered in the will are self-acquired. He further admits in para 27 of the cross examination that the house at Aminpara was sold by defendants Gendlal and Junglu in 1960-1961 and the said transaction was not objected by any other member of the family. He further admits in para 27 of the cross examination that the house at Aminpara was sold by defendants Gendlal and Junglu in 1960-1961 and the said transaction was not objected by any other member of the family. It is this property which was later on purchased in the name of his father. He further admits in paragraph 33 that all 4 brothers used to operate the shop at Aminpara. However, this arrangement was not made for shop at Gol Bazar. No other witness has been examined to prove the jointness or separation of the family. 16. On the other hand, D.W.1 Gendlal says that the house at Aminpara has been purchased from contribution made by all the brothers and they reside in the same house. He also says that he alongwith Junglu sold the house at Aminpara to one Gajanand Barik to raise funds for business and in fact it was a mortgage transaction and on repayment of loan a return sale deed was executed by Gajanand in the name of his father Sukru. He further says that the shop at Gol Bazar is in his name and he is presently operating his business from the said shop. D.W.2 Gajanand is a Witness in whose favour sale deed as security for loan was executed in 1961. He says that the sale deed was signed by Sukru, Junglu and Gendlal. According to this witness, the house at Lilli Chowk and lands at Semaria has been purchased jointly by Sukru and his sons. This witness belongs to the same community and was frequently visiting the family, therefore, he cannot be said to be a stranger and his statement supports the case of defendant that the house at Aminpara and the lands at Semaria was purchased from joint family income. Absence of explanation from the plaintiff as to why Gendlal and Junglu executed a sale deed by way of security for loan in favour of D.W.1 Gajanand Barik in the year 1960-61 is one such fact which raises doubt on the plaintiff's theory of the property having been purchased by him in the name of his father. 17. Absence of explanation from the plaintiff as to why Gendlal and Junglu executed a sale deed by way of security for loan in favour of D.W.1 Gajanand Barik in the year 1960-61 is one such fact which raises doubt on the plaintiff's theory of the property having been purchased by him in the name of his father. 17. In view of the above discussion, it appears to this Court that the will is suspicious and it is not proved that the plaintiff had purchased the house at Aminpara and 5 acres of land at Simaria from his own income in the name of his father Sukru. The findings recorded by the trial Court do not suffer from perversity. The trial Court has not committed any error in passing the impugned decree. This Court has not found any ground warranting interference in this appeal. Consequently this first appeal is dismissed. A decree be drawn up accordingly. Appeal Dismissed.