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2012 DIGILAW 1575 (RAJ)

Ramesh Chandra v. Kamla Devi

2012-07-17

RAMESH CHANDRA

body2012
JUDGMENT : Bela M. Tirvedi, J. The challenge in the instant appeal is to the judgment and decree dated 6.12.90 passed by the learned Addl. District & Sessions Judge No.2, Jaipur City, Jaipur (hereinafter referred to as 'the trial court') in Civil Suit No. 36/77, whereby the trial court has decreed the suit of the respondent-plaintiff seeking possession of the suit property from the appellant-defendant. 2. The case of the respondent-plaintiff before the trial court was interalia that late Shri Durga Prasad had two sons, named Shri Devkinandan and Shri SB Civil Regular First Appeal No. 2/91. Shri Ramesh Chandra v. Smt. Kamla Devi. Ghasi Lal and one daughter named Narayani Devi. The plaintiff was the daughter of the said Narayani Devi. The said Devkinandan and Ghasi Lal died issueless in the year 1974 and 1934 respectively. One Shri Gaindi Lal and Shri Motilal were the owners of the suit, being three storied house, bearing Municipal No. 1368 situated at Gangapole, Jaipur Chowkri (hereinafter referred to as 'the suit property'). The said owners gifted the said property to the said Shri Devkinandan and Ghasi Lal by executing a registered gift deed dated 18.11.32. It was further case of the plaintiff that her parents died at a very young age and she was brought up by her maternal uncle Devkinandan. The said Devkinandan therefore, had executed a Will dated 9.11.74 bequeathing the said property to the plaintiff and he died on 6.12.74. According to the plaintiff since the said Devkinandan did not have any son, his obsequies ceremonies were performed by the defendant, being a distant male relative, and the SB Civil Regular First Appeal No. 2/91. Shri Ramesh Chandra v. Smt. Kamla Devi. defendant therefore stayed in the suit property for some days after the death of Shri Devkinandan. The plaintiff subsequently came to know that the defendant was trying to take possession of the moveable properties and he also tried to open the locker of Devkinandan and that he was also trying to occupy the suit property illegally. According to the plaintiff, she being the sole survivor and being the beneficiary of the Will executed by the said Devkinandan in her favour, was the owner of the suit property. When the defendant refused to vacate the suit property and handover the possession of the same to the plaintiff, the suit for possession was filed by the plaintiff. 3. According to the plaintiff, she being the sole survivor and being the beneficiary of the Will executed by the said Devkinandan in her favour, was the owner of the suit property. When the defendant refused to vacate the suit property and handover the possession of the same to the plaintiff, the suit for possession was filed by the plaintiff. 3. The appellant-defendant resisted the suit by filing his written contending interalia that he was taken in adoption by the said Devkinandan on 2.5.55 after performing rites and rituals as per the Hindu Law, and hence he had become the owner of the suit property after the death of Devkinandan. It was further contended that he had performed all the SB Civil Regular First Appeal No. 2/91. Shri Ramesh Chandra v. Smt. Kamla Devi. obsequies as a son would perform after the death of the father and, therefore, was a lawful occupant of the suit property. According to the defendant, the said Devkinandan had not executed any Will as alleged by the plaintiff and even otherwise he was not keeping a good health in his last days. The alleged Will being not free from suspicion, and having been concocted by the plaintiff, the same could not be relied upon. In short, the defendant had urged to dismiss the suit. 4. The trial court after framing as many as 5 issues and appreciating the evidence on record decreed the suit of the plaintiff vide the impugned judgment and decree as mentioned hereinabove. 5. It has been sought to be submitted by the learned counsel Mr. Amod Kasliwal for the appellant that the trial court had failed to appreciate the evidence on record and decreed the suit in utter disregard of the settled legal position as regards the proof of Will. He submitted that as per the settled SB Civil Regular First Appeal No. 2/91. Shri Ramesh Chandra v. Smt. Kamla Devi. principles of law, the burden of proving the attestation and execution of the Will heavily lied on the propounder of the Will i.e. the plaintiff, which she had failed to discharge. According to him the circumstances under which the will was allegedly executed by the said Devkinandan, had created doubt about the genuineness of the execution of the will. principles of law, the burden of proving the attestation and execution of the Will heavily lied on the propounder of the Will i.e. the plaintiff, which she had failed to discharge. According to him the circumstances under which the will was allegedly executed by the said Devkinandan, had created doubt about the genuineness of the execution of the will. He further submitted that the signatures of the testator on the Will were also not genuine inasmuch as the testator used to put his signature as "Devkinandan Sharma" and not 'Devkinandan", which appeared on the Will. He placed heavy reliance on the Pension Payment Order of Shri Devkinandan and other documents to show that the said Devkinandan used to sign as "Devkinandan Sharma" and not "Devkinandan". Mr. Kasliwal also has relied upon the oral evidence of the witnesses examined by the appellant, as also the documentary evidence to show that the said Devkinandan had taken in adoption the appellant after performing SB Civil Regular First Appeal No. 2/91. Shri Ramesh Chandra v. Smt. Kamla Devi the rites and rituals according to the Hindu Law. Mr. Kasliwal has relied upon the judgments of the Apex Court which shall be dealt with hereinafter at the appropriate stage. 6. Per contra, the learned Sr. counsel Mr. R.K. Agrawal for the respondent-plaintiff supporting the judgment and decree of the trial court submitted that the trial court having properly considered the factual and legal aspects of the matter, has decreed the suit of the respondent, which does not call for any interference. Mr. Agrawal submitted that the respondent had adduced the legal and convincing evidence about the execution of the Will and that mere conjunctures of unfounded suspicion should not be permitted to sway the verdict that the Will has been proved. Taking the court to the evidence of the respondent, the witness who had attested the Will and other witnesses examined by the respondent, Mr. Agrawal submitted that the Will in question was proved by the respondent as per the provisions SB Civil Regular First Appeal No. 2/91. Shri Ramesh Chandra v. Smt. Kamla Devi. contained in Section 63 of the Hindu Succession Act. As regards the contention raised by the appellant regarding his adoption by the said Devkinandan, Mr. Agrawal submitted that the Will in question was proved by the respondent as per the provisions SB Civil Regular First Appeal No. 2/91. Shri Ramesh Chandra v. Smt. Kamla Devi. contained in Section 63 of the Hindu Succession Act. As regards the contention raised by the appellant regarding his adoption by the said Devkinandan, Mr. Agrawal submitted that there were major discrepancies and contradictions in the evidence of the witnesses examined by the appellant as regards the deed of adoption, the date, place and the manner in which the appellant was allegedly taken in adoption; and that the said story of having taken in adoption was concocted by the appellant with a view to grab the property of Devkinandan. Mr. Agrawal has also relied upon the judgments of the Apex Court to buttress his submission that none of the near relatives or prominent persons of the village were examined by the appellant to show that he was taken in adoption and that the rights of the legal heirs of the deceased could not be deprived of on the basis of false story of adoption concocted by the appellant. 7. The undisputed facts in the instant case are that the respondent was the SB Civil Regular First Appeal No. 2/91. Shri Ramesh Chandra v. Smt. Kamla Devi sole surviving member in the family of Durga Prasad and was brought up by her maternal uncle Devkinandan, her parents having died at a very young age. It is also not disputed that the two sons of Durga Prasad named Devkinandan and Ghasi Lal died issueless. It is also not disputed that the suit property was gifted to the said Devkinandan and Ghasi Lal by Shri Gaindi Lal and Moti Lal (original owners) by executing registered gift deed on 18.11.32 and thus the suit property was not the ancestral property in the hands of Devkinandan. It is also not disputed that the appellant was not the near relative but was the distant relative of the said Devkinandan. The real questions therefore which are under consideration before this court are - whether the appellant was taken in adoption by the said Devkinandan on 2.5.55 as per the Hindu Law, and whether the said Devkinandan had executed the Will dated 9.11.74 bequeathing the suit property to the respondent? SB Civil Regular First Appeal No. 2/91. Shri Ramesh Chandra v. Smt. Kamla Devi. 8. SB Civil Regular First Appeal No. 2/91. Shri Ramesh Chandra v. Smt. Kamla Devi. 8. So far as the law of adoption is concerned, a very pertinent observations made by the Apex Court in case of Kishori Lal v. Mr. Chaltibai, AIR 1959 SC 504 are reproduced as under :- "As an adoption results in changing the course of succession, depriving wives and daughters of their rights and transferring properties to comparative strangers or more remote relations it is necessary that the evidence to support it should be such that it is free from all suspicions of fraud and so consistent and probable as to leave no occasion for doubting its truth." It has been further observed in para 16 as under :- "16. Besides the four documents abovementioned the appellant Kishorilal relied on the following facts as instances of admissions and conduct of the respondent Chaltibai. The first is the performance of obsequies by the appellant and the subsequent taking of the appellant in her lap by the respondent. The mere fact of performance of these funeral rites does not necessarily support an adoption. The performance of these rites frequently varies according to the circumstances of each case and the view and usage of different families. The evidence led by the appellant himself shows that in the absence of the son, junior relation SB Civil Regular First Appeal No. 2/91. Shri Ramesh Chandra v. Smt. Kamla Devi. elations like a younger brother or a younger nephew performs the obsequial ceremonies. As was pointed out by the Privy Council in Tayramal's case, 10 Moo Ind App 429 (supra) the performance of funeral rites will not sustain an adoption unless it clearly appears that the adoption itself was performed under circumstances as would render it perfectly valid." 9. In the case of Rahasa Pandiani (dead) by LRs. & Ors. v. Gokulananda Panda & Ors. (1987) 2 SCC 338 the Apex Court held as under :- "When the plaintiff relies on oral evidence in support of the claim that he was adopted by the adoptive father in accordance with the Hindu rites, and it is not supported by any registered document to establish that such an adoption had really and as a matter of fact taken place, the court has to act with a great deal of caution and circumspection. Be it realised that setting up a spurious adoption is not less frequent than concocting a spurious Will, and equally, if not more difficult to unmask. And the court has to be extremely alert and vigilant to guard against being ensnared by schemers who indulge in unscrupulous practices out of their lust for property. If there are any suspicious circumstances, just as the propounder of the will is obliged to dispel the cloud of suspicion, the burden is on one who claims to have been SB Civil Regular First Appeal No. 2/91. Shri Ramesh Chandra v. Smt. Kamla Devi. adopted to dispel the same beyond reasonable doubt." 10. In the light of the above mentioned legal position, let us examine whether the appellant had duly proved, clearing the clouds of suspicion, that he was taken in adoption by the late Shri Devkinandan on 2.5.55. The appellant in order to prove his adoption, had examined himself and other witnesses who were the neighbors and relatives of the appellant. However, as rightly pointed by the learned counsel Mr. R.K. Agrawal, there were discrepancies in the date, place and manner in which the alleged adoption had taken place. The appellant in his written statement and in the evidence adduced before the trial court had stated that he was taken in adoption by Shri Devkinandan on 2.5.55, however he did not remember as to who were present at the time of the ceremony. It is pertinent to note that in reply to the interrogatories Ex. A/5 delivered under Order-XI of Civil Procedure Code the appellant had stated that he was taken in adoption on 2.5.53. The DW 3 Mahesh Chandra examined by the SB Civil Regular First Appeal No. 2/91. Shri Ramesh Chandra v. Smt. Kamla Devi. appellant was the cousin of the appellant and he has stated in his evidence that the appellant was taken in adoption by Shri Devkinandan on 28.1.56 and that he remembered the said date as his own adoption had also taken place on the said date. The DW.4 Ghanshyam Lal and DW.5 Damodar have stated that Shri Devkinandan had taken the appellant Ramesh in adaption about 30 years back, and DW.6 Shri Mool Chand had stated that he was taken in adoption about 15-20 years back. None of the said witnesses remembered the exact date. The DW.4 Ghanshyam Lal and DW.5 Damodar have stated that Shri Devkinandan had taken the appellant Ramesh in adaption about 30 years back, and DW.6 Shri Mool Chand had stated that he was taken in adoption about 15-20 years back. None of the said witnesses remembered the exact date. Under the circumstances it was not proved by the appellant by leading cogent evidence as to on which date he was taken in adoption by the said Devkinandan. Though the learned counsel Mr. R.K. Agrawal placing reliance on the certificates issued by various Acharyas to show that none of the said dates were auspicious dates, as normally such ceremonies would be performed only on auspicious dates, no significance could be attached to such certificates, as such ceremonies could SB Civil Regular First Appeal No. 2/91. Shri Ramesh Chandra v. Smt. Kamla Devi take place on any date, not necessarily on the auspicious dates only. In any case, when the appellant had come out with a specific case in the pleadings and his evidence that he was taken in adoption on a particular date, it was for him to prove by leading cogent evidence, either oral or documentary, that he was taken in adoption on that particular date only. There was also no evidence as to in what manner or how the appellant was taken in adoption by the said Devkinandan. 11. Further, heavy reliance was placed by the learned counsel Mr. Kasliwal on the passbook Ex. A/2, Ration Card Ex. A/1 and Application Form Ex. A/4, in which the appellant was shown as the son of Shri Devkinandan. However, as rightly pointed out by the learned counsel Mr. Agrawal, all the said documents pertain to the period after 1970 and did not prove that the appellant was taken in adoption by the said Devkinandan. It was rightly pointed by Shri Agrawal from the evidence of the appellant himself that he had admitted in his SB Civil Regular First Appeal No. 2/91. Shri Ramesh Chandra v. Smt. Kamla Devi cross-examination that in his service book, the name of his real father Radheyshyam was shown. The learned Counsel Mr. Kasliwal has failed to explain as to how the name of his real father Radheyshyam had appeared in his service record if he was taken in adoption by Devkinandan in the year 1955. Mr. Shri Ramesh Chandra v. Smt. Kamla Devi cross-examination that in his service book, the name of his real father Radheyshyam was shown. The learned Counsel Mr. Kasliwal has failed to explain as to how the name of his real father Radheyshyam had appeared in his service record if he was taken in adoption by Devkinandan in the year 1955. Mr. Kasliwal has also placed reliance upon the evidence to the effect that 'Pagadi' ceremony was performed by the appellant after the death of Devkinandan. It is true that it was not disputed by the respondent that such a ceremony was performed by the appellant, nonetheless merely because 'Pagadi' ceremony, which normally could be performed by the male members of the family of the deceased, was performed by the appellant, it could not be said that he was taken in adoption by the said Devkinandan. As per the settled legal position, the appellant had to dispel all circumstances adverse to him and prove by adducing legal and clinching evidence that he was taken in adoption SB Civil Regular First Appeal No. 2/91. Shri Ramesh Chandra v. Smt. Kamla Devi. by the deceased Devkinandan on a particular date, in particular manner and after following the formalities as per the Hindu Law, which the appellant had failed to prove before the trial court and, therefore, the trial court had rightly concluded that the appellant-defendant had failed to prove that he was taken in adoption by late Shri Devkinandan on 2.5.55. 12. This takes the court to the next question as to whether the respondent-plaintiff had proved that the said Devkinandan had executed the Will on 9.11.71. The law as regards the proof of Will is also well settled by the Apex Court. In case of Smt. Indu Bala Bose & Ors. v. Manindra Chandra Bose & Anr., AIR 1982 SC 133 , the Apex Court has held as under :- "7. This Court has held that the mode of proving a will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a will by Section 63 of the Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of SB Civil Regular First Appeal No. 2/91. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of SB Civil Regular First Appeal No. 2/91. Shri Ramesh Chandra v. Smt. Kamla Devi testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the will as genuine. Even where circumstances give rise to the doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the dispositions made in the will be unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the will to show that the testator's mind was not free. In such a case the court would naturally expect that all legitimate suspicious should be completely removed before the document is accepted as the last will of the testator. If the propounder himself take a prominent part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. 8. Needless to say that any and every circumstance is not a suspicious circumstance. A SB Civil Regular First Appeal No. 2/91, Shri Ramesh Chandra v. Smt. Kamla Devi. circumstance would be suspicious when it is not normal or is not normally expected in a normal situation or is not expected of a normal person." 13. It is also held by the Apex Court in the case of Madhukar D. Shende v. Tarabai Aba Shedage, (2002) 2 SCC 85 interalia as under :- "9. It is well settled that one who propounds a will must establish the competence of the testator to make the will at the time when it was executed. It is also held by the Apex Court in the case of Madhukar D. Shende v. Tarabai Aba Shedage, (2002) 2 SCC 85 interalia as under :- "9. It is well settled that one who propounds a will must establish the competence of the testator to make the will at the time when it was executed. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the manner contemplated by law. The contestant opposing the will may bring material on record meeting such prima facie case in which event the onus would shift back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the will and in sound disposing capacity executed the same. The factors, such as the will being a natural one or being registered or executed in such circumstances and ambiance, as would leave no room for suspicion, assume significance. If there is nothing unnatural about the transaction and the evidence adduced satisfies the requirement of proving a will, the court would not return a finding of "not proved" merely on account of certain assumed suspicion or supposition. Who are the persons propounding SB Civil Regular First Appeal No. 2/91. Shri Ramesh Chandra v. Smt. Kamla Devi and supporting a will as against the person disputing the will and the pleadings of the parties would be relevant and of significance." 14. In the instant case, it is not disputed that the suit property was gifted to the deceased Devkinandan and his brother Ghasi Lal by the original owners by executing a registered gift deed on 18.11.32. On the death of Shri Ghasi Lal in the year 1934, the said Devkinandan had become the sole owner of the suit property. Thus, the suit property being not the ancestral property, the said Devkinandan was competent to execute the Will with regard to the said property, at the time when the alleged Will was executed. As such, the competence of the testator Shri Devkinandan is also not much in dispute. For the purpose of proving the mode of the execution of the Will Ex.1 in question, the respondent has examined herself. According to her she was present at the time of execution of the said Will. As such, the competence of the testator Shri Devkinandan is also not much in dispute. For the purpose of proving the mode of the execution of the Will Ex.1 in question, the respondent has examined herself. According to her she was present at the time of execution of the said Will. She has stated in detail as to how the said Will was executed by Shri Devkinandan. SB Civil Regular First Appeal No. 2/91. Shri Ramesh Chandra v. Smt. Kamla Devi. She has also examined one of the witnesses Radhagovind as P.W.3, in whose present the said Will was executed. The said P.W.3 has categorically stated in his evidence that the said will was executed in his presence by Devkinandan in favour of Kamla Devi i.e. the respondent, and the said Devkinandan had put his signature on each page in his presence, and that he and the other witness Madangopal had put their respective signatures on the said will at the instance of Devkinandan. He has also stated that the handwriting of the Will were of the deed writer Kesar Lal Ajmera, who had written in his presence. The plaintiff had also examined P.W.4 Vimal Kumar, who was the grandson of said deed writer Kesar Lal Ajmera, who had identified his handwritings in the Will Ex.1. It is interesting to note that neither the execution of the Will nor the signatures of the said Devkinandan on the said Will were questioned by the learned counsel for the appellant during the cross-examinations of the SB Civil Regular First Appeal No. 2/91. Shri Ramesh Chandra v. Smt. Kamla Devi. witnesses examined by the respondent. The only suggestion put to the defendant No.3 Radhagovind was that Devkinandan used to put his signature as Devkinandan Sharma. It is true that the said witness had initially agreed to the said suggestion, however had explained that sometimes Devkinandan used to put his signature as Devkinandan Sharma and sometimes as Devkinandan only. 15. The learned counsel Mr. Kasliwal relying upon the said piece of evidence and on the document called Pension Payment Order, produced in the present appeal under Order 41 Rule 27 of Civil Procedure Code had sought to submit that the said Devkinandan used to put his signature as "Devkinandan Sharma" only and the signatures on the Will as "Devkinandan" created suspicion as to the genuineness of the said signatures on the Will. There is no substance in the said submission made by the learned counsel for the appellant, inasmuch as sometimes person may put signature with his surname and sometimes without his SB Civil Regular First Appeal No. 2/91. Shri Ramesh Chandra v. Smt. Kamla Devi. surname. From the mere comparison of the said signatures appearing on the each page of the will and the signatures on the said document of Pension Payment Order, the court does not find any discrepancy. That apart, from the pleadings and the evidence of the appellant adduced before the trial court it appears that neither the execution of the Will nor the signatures of the testator Devkinandan appearing on the Will was seriously challenged by the appellant. Under the circumstances, the trial court has rightly held that the respondent-plaintiff had proved by legal and clinching evidence as per the requirement of Section 63 of the Succession Act read with Section 68 of the Evidence Act that the Will Ex.1 was executed by Late Shri Devikinandan on 9.11.74, whereas the appellant-defendant had failed to prove that he was adopted son of Shri Devkinandan. 16. In the aforesaid premises, the court does not find any illegality or perversity in the impugned judgment and SB Civil Regular First Appeal No. 2/91. Shri Ramesh Chandra v. Smt. Kamla Devi. decree passed by the trial court. At this juncture, it is also required to be noted that when the trial court has arrived at a finding of fact, on the basis of appreciation of evidence, the first appellate court should not normally reverse the same without assigning sufficient reasons for the same. In case of Madholal Sindhu v. Official Assignee of Bombay, AIR 1950 FC 21, the Apex Court observed as under :- "It is true that a judge of first instance can never be treated as infallible in determining on which side the truth lies and like other tribunals he may go wrong on questions of fact, but on such matters if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at, the appeal court should not lightly interfere with the judgment." 17. In case of Rajbir Kaur v. S. Chokesiri and Co. (1989) 1 SCC 19 , the Apex Court observed thus :- "A judge sitting without a jury must perform dual function. The first function consists in the establishment of the particular facts. In case of Rajbir Kaur v. S. Chokesiri and Co. (1989) 1 SCC 19 , the Apex Court observed thus :- "A judge sitting without a jury must perform dual function. The first function consists in the establishment of the particular facts. This may be described as the perceptive function. It is what you actually perceive by the five senses. It is a datum of experience as distinct from a SB Civil Regular First Appeal No. 2/91. Shri Ramesh Chandra v. Smt. Kamla Devi conclusion." 18. In view of the above, the court does not find any necessity to reverse the findings of facts arrived at by the trial court. The appeal being devoid of merits deserves to be dismissed and is accordingly dismissed.