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Madhya Pradesh High Court · body

2012 DIGILAW 424 (MP)

Suresh Bathre v. Aam Janta

2012-04-19

K.K.TRIVEDI

body2012
Judgment ( 1. ) THIS revision under Section 115 of Code of Civil Procedure, 1908, is directed against the order dated 5.5.2011, passed in Misc. Civil Appeal No.26/2010 by the District Judge Katni, affirming the order dated 13.2.2010 passed in Succession Case No.1/2006, by the First Civil Judge, Class-I, Katni. ( 2. ) FACTS giving rise to filing of this revision are that the respondent No.4 filed an application under Section 372 of the Indian Succession Act for grant of a succession certificate in respect of the amount deposited by one late Ram Ratan. It was contended that said Ram Ratan was an employee of the railway and after his retirement, he was getting the pension which he was depositing in the Saving Bank Account No.9397 in the Punjab National Bank. The petitioner herein is the real brother of respondent No.4, but he was living separately at Tikuriya, District Katni, for the last 17-18 years. The respondent No.4 was looking after his father and being pleased with the services rendered by respondent No.4, his father late Ram Ratan has executed a registered will on 16.8.1999 in his favour bequeathing all his movable and part of immovable properties. Said Ram Ratan had died on 1.11.2005 after a prolong illness. When the respondent No.4 approached the bank for the purposes of getting the amount deposited in the Saving Bank Account of said Ram Ratan in the bank of respondent No.2, a succession certificate was demanded and for the said purposes, the application was required to be filed. The petitioner herein and the respondent No.5 were also made the party in the said application. The said person contested the application made by the respondent No.4 contending that the will said to be executed by Ram Ratan was nothing, but a forged document. All the retiral dues of said Ram Ratan were paid to the members of the family. There was no question of granting the succession certificate in respect of respondent No.4 only. In fact, the petitioner herein and respondent No.5 were also entitled to the grant of succession certificate for the purpose of payment of the amount deposited by said Ram Ratan. ( 3. ) THE Succession Court recorded the evidence of the parties. There was no question of granting the succession certificate in respect of respondent No.4 only. In fact, the petitioner herein and respondent No.5 were also entitled to the grant of succession certificate for the purpose of payment of the amount deposited by said Ram Ratan. ( 3. ) THE Succession Court recorded the evidence of the parties. The respondent No.4 submitted before the Succession Court that the original will deed was misplaced and since it was a registered document, a certified copy of the same was obtained and the same has been produced. Such a secondary evidence be taken on record. It was further contended that one of the attesting witnesses of the will was available and she is required to be examined. The Succession Court permitted the respondent No.4 to adduce the evidence in this respect and after recording the evidence, came to the conclusion that since the will has been proved in favour of the respondent No.4, therefore, he alone was entitled to grant of succession certificate. Accordingly, the application of respondent No.4 was allowed. Being aggrieved by such an order passed by the Succession Court, the petitioner herein and respondent No.5 both have jointly filed the appeal before the lower appellate Court under Section 384 of the Indian Succession Act, 1925. The appeal was considered by the Court below and since the appeal has been dismissed, present revision has been filed. ( 4. ) IT is, vehemently, contended by learned counsel for the petitioner that there was no permission granted to adduce the secondary evidence as is required under Section 65 of the Indian Evidence Act, 1872 and in absence of such a permission, the secondary evidence was not to be taken into account. Further reading the statement of the witness examined by the respondent No.4, it is contended that the will cannot be said to be proved and on the basis of such unproved will, succession certificate was not to be granted in favour of respondent No.4 only. It is contended that if proper appreciation of the evidence would have been done, the application made by respondent No.4 for grant of succession certificate would have been dismissed. ( 5. ) PER contra it is contended by learned counsel for the respondent No.4 that in fact rightful appreciation of evidence was done. It is contended that if proper appreciation of the evidence would have been done, the application made by respondent No.4 for grant of succession certificate would have been dismissed. ( 5. ) PER contra it is contended by learned counsel for the respondent No.4 that in fact rightful appreciation of evidence was done. As per the law, the attesting witness was examined and the will was said to be proved in accordance to the provisions of Section 63 of the Indian Succession Act, 1925 read with Sections 67 and 68 of the Indian Evidence Act, 1872. Thus, it is contended that since there was a valid will executed in favour of the respondent No.4, such fact is found proved by the Court below and, therefore, the succession certificate was rightly granted in favour of the respondent No.4. This particular aspect was considered by the Court below and since the appeal of the petitioner has been dismissed, there is no case made out to interfere in the order of the Court below. ( 6. ) THE sole contention of the respondent No.4 is that though he is brother of the petitioner and respondent No.5, but since he alone was living with his father, the will was executed in favour of respondent No.4 and this being so, he alone was entitled to grant of succession certificate for getting the amount from the bank, deposited in the name of his late father. ( 7. ) FIRST of all, the will is required to be examined whether it was lawfully proved or not. It is the contention of respondent No.4 that the original document of will was misplaced and, therefore, the same could not be produced before the Succession Court. A certified copy of the same was obtained by the respondent No.4 from the Registrar of Documents and the said document has been produced as Ex.P/2. The said document is a photocopy of the document which was kept by the Registrar of Documents after its registration and it contains the signature of the executant of the will as also the attesting witnesses. Section 63 of the Indian Succession Act prescribes that a will is required to be attested by two or more witnesses each of whom has seen the testator signing or affixing his mark to the will. Section 63 of the Indian Succession Act prescribes that a will is required to be attested by two or more witnesses each of whom has seen the testator signing or affixing his mark to the will. The manner in which the signature is required to be proved on any document is prescribed in Section 67 of the Indian Evidence Act. A person who alleges to have signed a particular document is required to prove his signature. Section 68 of the Indian Evidence Act prescribes the proof of execution of document required by law to be attested. There were two attesting witnesses of the will Ex.P/2 one Dhaniram son of Natthulal and Ghasiti Bai wife of Asha Ram. As required under Section 68 of the Indian Evidence Act, if any of the attesting witness, out of the two has been examined, it could have been said that the will is proved. The evidence of Ghasiti Bai, attesting witness, was recorded by the Succession Court. In her statement made under Order 18 Rule 4 of Civil Procedure Code in form of affidavit, she has contended that she has signed the document of will and she can identify her signature, but neither this document was shown to her in the chief nor in the cross examination and she has not identified the signature of the testator or her own on the will Ex.P/2. Since this was not categorically stated by her that the signature on the Ex.D/2 at such a such place were signature of the testator and at such a such place the signature of her own. This being so, it cannot be said that the will Ex.P/2 is proved as per the provisions of Section 68 read with Section 67 of the Indian Evidence Act and, thus, it cannot be said that the will was rightly proved by the respondent No.4 as per the provisions of Section 63 of the Indian Succession Act. ( 8. ) THE evidence of the respondent No.4 where the document was exhibited, nowhere contains the fact that the same contains the signature of the testator or the attesting witness. It is also not contended by him that the said document was signed by him also. On the other hand, he categorically contends that on the will his signatures were not obtained. It is also not contended by him that the said document was signed by him also. On the other hand, he categorically contends that on the will his signatures were not obtained. In absence of such a necessary evidence, how could it be said that the will was proved and, thus, the respondent No.4 alone was entitled to get a succession certificate for getting the amount deposited in the bank account of respondent No.2. This particular aspect has not been considered by the Succession Court nor by the lower appellate Court and, as such, the order passed by the Courts below cannot be sustained in the eye of law. ( 9. ) RESULTANTLY, the revision stands allowed. The order of lower appellate Court and the Succession Court are set aside. The application made by the respondent No.4 for grant of succession certificate only in his name is, hereby, rejected. There shall be no order as to costs.