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2012 DIGILAW 587 (MP)

Ramesh Kumar S/o Jagannath Upadhyay v. Jagannath S/o Kaluram Upadhyay (Deceased)

2012-06-21

PRAKASH SHRIVASTAVA, SHANTANU KEMKAR

body2012
Judgment Prakash Shrivastava, J.:- This First Appeal under section 96 of the Civil Procedure Code is at the instance of the plaintiff challenging the judgment dated 23-12-1999 passed by the Court of 3rd Additional District Judge, Ratlam dismissing the C.S. No. 13-A/95 filed by the appellant. 2. The appellant had filed the suit for partition of his share and declaration of title pleading that the original respondent No. 1 Jagannath was his father and respondent No. 2 Shantilal was his brother. Their family was a joint Hindu family having suit properties consisting of a house in Dhaan Mandi Mohalla, Ratlam, a plot at village Rajgarh and agricultural land with Nohra house at village Banakia Kala, Tehsil Kapasan, District - Chittorgarh (Rajasthan). The respondent No. 2 was residing with the respondent No. 1 in house situated at Dhaan Mandi and was doing the business from the income earned from the joint property. Since the appellant was residing out of Ratlam, therefore, the respondent No. 2 was enjoying the property. The respondent No. 1 was suffering from the cancer and taking advantage of the illness of the respondent No. 1, respondent No. 2 got the Will of the suit property executed in his favour from respondent No. 1, whereas the respondent No. 1 was not in a position to execute the Will. Since the suit properties were ancestral property, therefore, respondent No. 1 otherwise had no right to execute the Will in respect of these properties. A further plea was raised that the house of Dhaan Mandi was purchased by the plaintiffs grand-father Kaluram in the name of his grandmother Sringar Bai. The appellant's father Jagannath was adopted son of Kaluram. Since the Dhaan Mandi house was purchased from the income of the joint family property, therefore, it was ancestral property and the appellant had half share in that house. Rajgarh plot was also claimed to be purchased from income from ancestral property. In this background, the appellant had sought declaration of title and claimed share in the suit property. 3. During the pendency of the suit, respondent No. 1 Jagannath had died and Kamla Bai w/o respondent No. 2 was impleaded as respondent No. 3. 4. Rajgarh plot was also claimed to be purchased from income from ancestral property. In this background, the appellant had sought declaration of title and claimed share in the suit property. 3. During the pendency of the suit, respondent No. 1 Jagannath had died and Kamla Bai w/o respondent No. 2 was impleaded as respondent No. 3. 4. Respondents No. 2 and 3 by filing the written statement had opposed the suit of the appellant raising the plea that the suit property is not the ancestral property and that respondent No. 1 Jagannath had executed the Will in favour of the respondents No. 2 and 3 in respect of part of suit property without any pressure or influence. The Rajgarh plot was the self acquired property of Jagannath. The respondent No. 2 was taking care of the respondent No. 1. There was no ancestral business or shop from which the suit property was purchased. It was the respondent No. 2 who was doing the independent business. The share of the appellant on the suit property was accordingly denied. 5. The trial Court by the judgment dated 23-12-1999 has found that only the agricultural land at Banakia Kala was the ancestral property and remaining properties were not the ancestral properties. The Will (Ex.D/3) executed by the respondent No. 1 in favour of the respondents No. 2 and 3 has been held to be proved, by which the respondent No. 1 had bequeathed other properties to the respondents No. 2 and 3. The appellant has been found entitled to half share only in respect of the agricultural land and Nohra at Banakia Kala. 6. Learned counsel appearing for the appellant has submitted that the trial Court has committed an error in holding that the house at Dhaan Mandi and Rajgarh plot are not the ancestral properties. He further submits that the trial Court has committed an error in not properly appreciating the evidence and in holding that Jagannath was not the adopted son of Kaluram. He has further submitted that Rajgarh plot was purchased by Jagannath from the income of the ancestral property, therefore, the appellant has share in that property. He has also submitted that the Will Ex.D/3 executed by respondent No. 1 in favour of respondents No. 2 and 3 has not duly been proved and the respondent No. 1 was not in a fit condition to execute the Will. 7. He has also submitted that the Will Ex.D/3 executed by respondent No. 1 in favour of respondents No. 2 and 3 has not duly been proved and the respondent No. 1 was not in a fit condition to execute the Will. 7. Learned counsel appearing for the respondents supporting the impugned judgment has submitted that the evidence on record establishes that Dhaan Mandi house and Raj garb, plot were not the ancestral properties and that Jagannath was not the adopted son of Kaluram, and Rajgarh plot was not purchased from the income of the ancestral property. He further submitted that the Will Ex.D/3 has duly been proved and it has been established that at the time of execution of the Will, Jagannath was in fit state of mind and the said Will was not executed under any influence or pressure. He has submitted that the findings which have been arrived at by the trial Court are correct, which are duly supported by the evidence on record. 8. We have heard the learned counsel for the parties and minutely perused the record of the case. 9. The present appeal involves following issues for the determination of this Court :- (1) Whether the suit properties consisting of Dhaan Mandi house, Rajgarh plot and agricultural land with Nohra at Banakia Kala were ancestral properties in the hands of Jagannath? (2) Whether the execution of the Will (Ex.D/3) has duly been proved? (3) Whether the Will (Ex.D/3) is suspicious and it was executed under the influence of the respondents No. 2 and 3? (4) Whether the appellant is entitled to any share in Dhaan Mandi House and Rajgarh plot? 10. The aforesaid issues are answered as under:- Issue No. 1 :- 11. The first issue is about the nature of the suit property. The suit properties consist of (1) Dhaan Mandi house (2) Rajgarh plot and (3) agricultural land at Banakia Kala. The nature of each of these properties is required to be examined. 12. The Supreme Court in the matter of Appasaheb Peerappa Chamdgade vs. Devendra Peerapa Chamdgade and others, reported in 2007(1) SCC 521 has held that in a suit for partition and determination of share, there is no presumption of joint Hindu family and the initial burden is on the plaintiff to show that the entire property was a joint Hindu family property. After initial discharge of the burden, it shifts on the defendants to show that the property claimed by them was not purchased out of the joint family nucleus and it was purchased independent of them. 13. So far as the Dhaan Mandi house is concerned, the appellant has claimed it to be ancestral house. The Ex.P/19 is the registered sale deed dated 4-5-1932, by which this house was purchased by Kaluram. This document has been produced and proved by the plaintiff himself which establishes that Kaluram had purchased this house. There is no evidence on record that Kaluram had purchased this house from the proceeds or from the income of the ancestral property. It has come in evidence that Kaluram had died issueless. Jagannath was the son of Kelaram i.e. younger brother of Kaluram. Kaluram and Kelaram were only two brothers. Sringar Bai was wife of Kaluram. She had executed the Will Ex.D/5 for bequeathing the Dhaan Mandi house and Banakia Kala agricultural land to Jagannath. 14. The claim of the appellant is based upon the plea that Jagannath (respondent No. 1) was the adopted son of Kaluram and since Jagannath had received Dhaan Mandi house as adopted son of Kaluram, therefore, it had become ancestral property in the hands of Jagannath. If Jagannath had received Dhaan Mandi house by way of Will Ex.D/5 from Sringar Bai and his adoption is not proved, then Jagannath becomes the sole owner of the house without any birth right of the appellant on the property. 15. Though the appellant had raised the plea of adoption of Jagannath by Kaluram but he had failed to adduce cogent evidence establishing the adoption. For establishing the plea of adoption, a party claiming adoption is required to prove the adoption by producing the deed of adoption or by establishing through evidence that the adoption was done through proper adoption ceremony. [See: AIR 1983 SC 114 , Madhusudan Das vs. Smt. Narayani Bai and others and AIR 1987 SC 962 , Rahasa Pandiani (dead) by L.Rs. and others vs. Gokulananda Panda and others]. 16. In the present case no adoption deed has been filed by the appellant nor he has adduced any evidence establishing that respondent No. 1 was taken in adoption by Kaluram after performance of any adoption ceremony. 17. and others vs. Gokulananda Panda and others]. 16. In the present case no adoption deed has been filed by the appellant nor he has adduced any evidence establishing that respondent No. 1 was taken in adoption by Kaluram after performance of any adoption ceremony. 17. The respondent No. 1 Jagannath who was originally impleaded in the suit he had died at the stage of trial of the suit. Jagannath had filed reply to the application under Order 39, Rules 1 and 2 of the Civil Procedure Code before the trial Court. The said reply was not only signed by the Jagannath but it was duly supported by the affidavit of the Jagannath. In the said reply Jagannath had specifically stated that Sringar Bai was the wife of the elder brother of the father of Jagannath. In this reply Jagannath had not admitted himself to be the adopted son of Kaluram. 18. The appellant has placed reliance upon the Will of Sringar Bai Ex.D/5, but mere mentioning of Jagannath as adopted son of Sringar Bai in that document is not enough to hold that Jagannath was adopted son of Kaluram when the appellant has failed to prove the plea of adoption by producing the adoption deed or establishing the adoption ceremony. Keeping in view the evidence which has come on record, it is found that the appellant has failed to establish that Jagannath was the adopted son of Kaluram. 19. Thus Kaluram was the owner of Dhaan Mandi house having purchased it by registered sale deed (Ex.P/19) and Kaluram had died issueless and on his death, this house was received by his wife Sringar Bai. Dhaan Mandi house was received by Jagannath by way of Will Ex.D/5 from Sringar Bai. Therefore, Dhaan Mandi house was not the ancestral property in the hands of Jagannath, but Jagannath was absolute owner of this house having received it by way of Will Ex.D/5 from Sringar Bai. 20. So far as the Rajgarh plot is concerned, the case of the appellant is that Rajgarh plot was purchased out of the income from the shop which was established by his grand-father Kaluram and which was run by Jagannath and since the plot was purchased from the income of the ancestral property, therefore, the appellant has half share. 20. So far as the Rajgarh plot is concerned, the case of the appellant is that Rajgarh plot was purchased out of the income from the shop which was established by his grand-father Kaluram and which was run by Jagannath and since the plot was purchased from the income of the ancestral property, therefore, the appellant has half share. A perusal of evidence in this regard reveals that the appellant has failed to bring on record any cogent material establishing that Rajgarh plot was purchased from the income of the shop established by his grand-father or from the income of any ancestral property. 21. Ex.D/6 is the Sales Tax Registration of the shop. Ex.D/7 is the registration of the shop under Shops and Establishments Act, 1958. Ex.D/6 and D/7 reveal that respondent No. 2 Shantilal was the proprietor of the shop. 22. The PW-1 Ramesh has admitted that respondent No. 1 Jagannath was an employee in the Railway, who had retired in 1976-77, whereas the shop in question was running since 1971. In the Will (Ex.D/5) executed by Sringar Bai, there is no mention of the shop. If the shop was established by Kaluram, then it was natural for Sringar Bai to make a mention of the said shop in the Will Ex.D/5. The fact that the shop was established by the respondent No. 2 Shantilal from his own resources, is established from the details disclosed by DW-1 Shantilal also. The documentary evidence on record supports the oral evidence of DW-1 Shantilal that he had opened the shop in 1971. The appellant has failed to produce any evidence, showing that the shop in question was either established by Kaluram or Jagannath. 23. Ex D/14 is the Patta (lease) of the Rajgarh plot which was issued by the Gram Panchayat in favour of Jagannath. The evidence led by the parties establishes that the plot of Rajgarh was not purchased by Jagannath from the income of ancestral property, but the said plot was obtained by Jagannath, vide Ex.D/14, from his own income which he had earned from serving in the Railway. 24. The evidence led by the parties establishes that the plot of Rajgarh was not purchased by Jagannath from the income of ancestral property, but the said plot was obtained by Jagannath, vide Ex.D/14, from his own income which he had earned from serving in the Railway. 24. Counsel for the appellant has placed reliance upon the judgment of the Nagpur High Court in the matter of Bajirao Tukaram Kunbi and others vs. Ramkrishna, reported in AIR 1942 Nagpur 19, wherein it has been held that where the members of joint Hindu family acquire property out of moneys representing either capital or income of the joint family property, the resulting acquisitions go to increase the joint family property, but in the present case the evidence establish that the Rajgarh plot was not acquired out of moneys representing either capital or income of the joint family property. 25. Counsel for the appellant has also relied upon the judgment of the Supreme Court in the matter of Baikuntha Nath Paramanik (dead) by his L.Rs. and heirs vs. Sashi Bhusan Pramanik (dead) by his L.Rs. and others, reported in AIR 1972 SC 2531 , Single Bench judgments in the matter of Mangilal vs. Hemraj, reported in 1998(11) MPWN Note 147, in the matter of Ramkrishna and others vs. Withal Rao and others, reported in 7975 MPLJ 500 = 1978 JLJ 450 and the judgment of the Supreme Court in the matter of Surendra Kumar vs. Phoolchand and another, reported in 1996 JLJ 477 , wherein it has been held that when a joint family is found to be in possession of nucleus sufficient to make the impugned acquisitions then a presumption arises that the acquisitions stands in the names of the persons who were in the management of the family properties are the family acquisitions. In the present case the appellant has failed to establish the possession of nucleus sufficient to acquire the Rajgarh plot, whereas the respondents by positive evidence have established that the shop in question was established and run by the respondent No. 2 and not by Jagannath and Jagannath from his personal income had purchased Rajgarh plot. 26. Thus it is found that the Rajgarh plot was not purchased from the income earned from any ancestral property or from the sale proceeds of any of the ancestral property. 26. Thus it is found that the Rajgarh plot was not purchased from the income earned from any ancestral property or from the sale proceeds of any of the ancestral property. The evidence clearly establishes that Rajgarh plot was purchased by Jagannath from his own income. The finding recorded by the trial Court in this regard does not suffer from any error. 27. So far as the agricultural land at Banakia Kala is concerned, the trial Court has recorded a finding in favour of the appellant holding that Banakia Kala agricultural land with Nohra was ancestral property. The said finding is not under challenge in this appeal. The said finding is supported by the oral evidence as well as the contents of the Wills Ex.D/3 and D/4, which have been produced by the respondents. Since the agricultural land with Nohra at Banakia Kala is found to be the ancestral property, therefore, appellant has half share on that property. Issue No. 2 :- 28. While deciding the issue No. 1 above, it has been found that the Dhaan Mandi house and Rajgarh plot were not the ancestral properties but Jagannath was the owner of these properties. Jagannath had initially executed the Will Ex.D/4 dated 15-9-1994 dividing these properties between his both sons namely Ramesh (plaintiff) and Shantilal (respondent No. 2), but the said Will was superseded by the another registered Will dated 5-8-1995 (Ex.D/3), by which Jagannath had bequeathed Dhaan Mandi house and plot at Rajgarh to respondent No. 3 Kanila Bai w/o Shantilal. By this Will the property at Banakia Kala was given in equal share to the appellant Ramesh and respondent No. 2 Shantilal. 29. The Supreme Court in the matter of Sridevi and others vs. Jayaraja Shetty and others, reported in 2005(2) SCC 784 has held that the onus of proof of the Will is on propounder. Proof of testamentary capacity and signature of testator is sufficient to discharge the onus in absence of any suspicious circumstances. Onus to explain suspicious circumstances, if any, is also on the propounder but onus to establish allegations of undue influence, fraud or coercion is on the person making such allegations. Proof in either case should be one of the satisfaction of a prudent man. 30. Section 63 of the Indian Succession Act, 1925 deals with the execution of the unprivileged Wills, which reads as under:- "63. Execution of unprivileged Wills. Proof in either case should be one of the satisfaction of a prudent man. 30. Section 63 of the Indian Succession Act, 1925 deals with the execution of the unprivileged Wills, which reads as under:- "63. Execution of unprivileged Wills. - - Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules :- (a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (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 direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall I 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." 31. It needs to be seen if the Will Ex.D/3 satisfies the requirements of section 63. DW-2 Bhagwati Prasad Upadhay, who was a friend of Jagannath and one of the witness of the Will (Ex.D/3) has stated that Jagannath was suffering from cancer and was admitted in hospital. The statement of DW-2 Bhagwati Prasad Upadhyay reveals that when Jagannath was admitted in the hospital, a written application (Ex.D/16) was made for registration of the Will by the Registrar on commission and in this regard the necessary fee was deposited. The Registrar had reached to the hospital, where Jagannath had informed the Registrar that he wanted to change his old Will. New Will was prepared by Radheshyam Thakkar, who had come along with the Will Ex.D/3. The Registrar had reached to the hospital, where Jagannath had informed the Registrar that he wanted to change his old Will. New Will was prepared by Radheshyam Thakkar, who had come along with the Will Ex.D/3. The Will was read out by Radheshyam Thakkar to Jagannath and Registrar had asked the Jagannath if he is executing the Will under any pressure, and Jagannath had replied that he was executing the Will without any pressure. The Will was singed by Jagannath in the presence of the witness Bhagwati Prasad Upadhyaya (DW-2). Tarni Prakash (DW-3) was another witness of the Will Ex.D/3, who has also stated that Jagannath had signed on the Will Ex.D/3 in his presence. It has come on record that Radheshyam Thakkar, who had prepared the Will, had died in the meanwhile, therefore, he was not examined. Thus execution of the Will Ex.D/3 in terms of requirement of section 63 of the Indian Succession Act has duly been proved. Issue No. 3 :- 32. The evidence on record indicate that Jagannath was in fit state of mind at the time of execution of the Will Ex.D/3. The said fact is established from the statement of DW-2 Bhagwati Prasad Upadhyay and DW-3 Tarni Prakash, who were present at the time of execution of the Will. It is worth noting that Jagannath was alive when the present suit was filed and in reply to the application under Order 39, Rules 1 and 2 of the Civil Procedure Code, which was signed by him and duly supported by his affidavit, he had taken the plea that he had executed the Will on his free-Will and the appellant had no right to challenge the said Will. PW-7 Dr. Chandra Shekhar Verma, who had given the endorsement on Ex.D/16 which was a letter to register the Will on commission by the Registrar, has also stated that al that time the mental condition of Jagannath was good. Thus from the evidence on record, it is established that Jagannath had executed the Will Ex.D/3 in fit mental state. 33. The next connected issue is whether Jagannath had executed the Will Ex.D/3 under the influence of respondents No. 2 and 3. Thus from the evidence on record, it is established that Jagannath had executed the Will Ex.D/3 in fit mental state. 33. The next connected issue is whether Jagannath had executed the Will Ex.D/3 under the influence of respondents No. 2 and 3. The case of the appellant is that the fact that he has not been given proper share in the suit property in the Will (Ex.D/3), shows that the Will was executed under the influence of respondents No. 2 and 3. The evidence on record reveals that the relations of appellant with Jagannath were strained. The evidence led by the parties establishes that though the wife of Jagannath as well as Jagannath both had suffered from cancer but the appellant had not taken any care of them. Appellant had not participated in the marriage of his brother, respondent No. 2 Shantilal PW-1 Ramesh has admitted that his father had not printed his name even in the wedding invitation card. The evidence also establishes that appellant had not participated in the last rites of his mother and the letter which was distributed in the society on the death of his mother, did not contain his name. Contents of the Will Ex.D/3 and D/4 also establish that the respondent No. 2 Shantilal and his wife were taking care of the Jagannath and his wife. The respondent No. 1 Jagannath in the Will itself has disclosed the reasons for giving the property in question to the respondent No. 3. The appellant had not spent any amount in the treatment of Jagannath or his wife. Their strained relations are established because of which apparently Jagannath had given larger part of the property to respondent No. 2 and 3. The counsel for the appellant has failed to point out any cogent evidence to establish that the Will in question was executed under the influence of the respondents No. 2 and 3. 34. Thus it is held that the Will Ex.D/3 was executed by Jagannath in accordance with law complying with the requirement of section 63 of the Indian Succession Act and the said Will has duly been proved, and the said Will is neither suspicious nor it was executed by Jagannath under the influence of the respondents No. 2 and 3. Issue No. 4 :- 35. Issue No. 4 :- 35. From the aforesaid analysis, it is clearly established that Jagannath was the owner of Dhaan Mandi house and Rajgarh plot. He was competent to bequeath the suit property by executing the Will. By the Will Ex.D/3, he had given Dhaan Mandi house and the plot at Rajgarh to the respondent No. 3 The Will has duly been proved. Thus the appellant has no right on Dhaan Mandi house and Rajgarh plot. 36. In view of the aforesaid, the appeal filed by the appellant is dismissed' by affirming the findings of the trial Court that the appellant has no right or share in the Dhaan Mandi house and Rajgarh plot, and that the agricultural land and Nohra at Banakia Kala is ancestral property in which the appellant has half share. No costs. Appeal dismissed.