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2012 DIGILAW 621 (MP)

Suraj Bai w/o Late Kaluji v. Shanti Lal

2012-06-27

S.C.SHARMA, SHANTANU KEMKAR

body2012
Judgment Shantanu Kemkar, J.:- This is plaintiff's first appeal under Section 96 of the Code of Civil Procedure challenging the judgment and decree dated 5-2-2007 passed by 7th Additional District Judge, Ujjain in Civil Suit No. 25-A of 2004, whereby the plaintiff's suit for declaration and injunction has been dismissed. 2. Briefly stated the appellant/plaintiff filed a suit for declaration that the Will, dated 24-4-1990 executed by her deceased husband Kaluji in favour of defendant No. 1 (Nephew of deceased Kaluji) to be forged and fabricated document and being null and void is not binding upon the plaintiff. She also sought declaration that the sale deed dated 22-12-2003 executed by defendant No. 1 on the strength of the said Will in respect of agricultural land bearing Survey No. 89 Rakba 40/9 Hectares situated at Village Banbana, Tehsil Nagda, District Ujjain in favour of defendant No. 2 to be null and void as according to her the defendant No. 1 was having no right to execute the sale deed of the aforesaid land, therefore, no right has accrued in favour of the defendant No. 2 on the basis of the said sale deed. A decree of injunction was also sought that the defendant Nos. 2 and 3 be restrained from interfering into her possession over the suit land. 3. As per the plaint averments the plaintiff claimed that she is widow of deceased Kaluji, who was holding agricultural land bearing various survey numbers as described in the plaint, which after the death of her husband is in her possession. She further averred that on-the basis of the said sale deed when the defendant Nos. 2 and 3 started interfering in "her possession by making efforts to take forcible possession from her she lodged a complaint in the Police Station, Nagda. On being inquired from defendant No. 1, the defendant No. 1 informed to her that her husband Kaluji had executed a Will in his favour and on that basis he became owner of the land. He also informed that on the basis of Will he had sold the part of the land to the defendant No. 2. She further pleaded that in fact no such Will was ever executed by deceased Kaluji in favour of the defendant No. 1. He also informed that on the basis of Will he had sold the part of the land to the defendant No. 2. She further pleaded that in fact no such Will was ever executed by deceased Kaluji in favour of the defendant No. 1. The plaintiff also pleaded that the defendant No. 1 taking undue advantage of his being nephew of the deceased Kaluji prepared a forged and fabricated Will to grab the land of Kaluji. It was further pleaded that she being widow of Kaluji, is natural heir of the deceased Kaluji and had became owner of the property held by deceased Kaluji on is death. 4. Before the Trial Court the defendant No. 1 did not appear and the Trial Court proceeded ex pane against him. The defendant Nos. 2 and 3 submitted their written statement and denied the plaint averments. According to the defendant Nos. 2 and 3 they had purchased the suit land from defendant No. 1, who was having valid title to sell the land as the suit land was bequeathed to him by his uncle late Kaluji by executing a Will, dated 24-4-1990 in his favour. According to the defendant Nos. 2 and 3, the said Will executed by Kaluji in favour of defendant No. 1 is not a forged or fabricated document, but is a genuine Will and on the basis of which the defendant No. 1 was fully empowered to execute the sale deed. The defendant Nos. 2 and 3 also stated that the land was purchased by defendant No. 2 from defendant No. 1 for a consideration of Rs. 4 lakhs. They further stated that the possession of the land was handed over to them on 22-12-2003 by defendant No. 1 in whose name the land was already mutated and from the date of possession they are cultivating the land and getting the crops. They denied the plaintiff's plea that she is in possession. 5. On the basis of the aforesaid pleadings, the Trial Court framed ten issues including the issues originally framed and the additional issues framed from time to time. 6. In order to prove her stand the plaintiff has examined herself as P.W. 6, Rakesh (P.W. 1), Devi Lal (P.W. 2), Kalu Ram (P.W. 3), Munna Lal (P.W. 4) and Mohan Lal (P.W. 5). On the other hand the defendant Nos. 6. In order to prove her stand the plaintiff has examined herself as P.W. 6, Rakesh (P.W. 1), Devi Lal (P.W. 2), Kalu Ram (P.W. 3), Munna Lal (P.W. 4) and Mohan Lal (P.W. 5). On the other hand the defendant Nos. 2 and 3 examined themselves and also examined one witness Rakesh Raghuwanshi (D.W. 3). 7. The Trial Court after appreciation of evidence dismissed the plaintiffs suit. The Trial Court held that the plaintiff has failed to prove her plea that the Will (Exh. P-3) was a forged document as she did not examine any attesting witness of the Will. It also held that the sale deed (Exh. P-2), which was executed by defendant No. 1 in favour of the defendant No. 2 on the basis of the said Will also cannot be said to be not binding upon the plaintiff. The Trial Court on the basis of the admission of the plaintiff herself that since last three years the possession on the suit land is of defendant Nos. 2 and 3 and that they are cultivating the land and selling the crop, recorded a finding that the possession on the suit land is not of plaintiff, but is of defendant Nos. 2 and 3. Having held so, the Trial Court dismissed the plaintiffs suit. Feeling aggrieved, the plaintiff has filed this appeal. 8. 'Shri P.K. Saxena, learned Senior Counsel for the appellant argued that the Trial Court should have seen that since the execution of Will was not proved by the defendants, the plaintiff was not required to prove that the Will is forged or fabricated. He also argued that the defendant No. 2 had purchased the suit land from defendant No. 1 who was claiming ownership of the land on the basis of the said Will, in the circumstances when the defendant No.1 was ex parte it was incumbent upon the defendant No. 2, who had stepped into the shoes of defendant No. 1 to have proved the Will in accordance with law. In support of his contention learned Senior Counsel for the appellant/plaintiff placed reliance on the judgment of the Supreme Court in the case of Yumnam Ongbi Tampha Ibemma Devi Vs. Yitmnarn Joykumar Singh and others, JT 2009 (4) SC 307, and in the case of Daulatram and others Vs. In support of his contention learned Senior Counsel for the appellant/plaintiff placed reliance on the judgment of the Supreme Court in the case of Yumnam Ongbi Tampha Ibemma Devi Vs. Yitmnarn Joykumar Singh and others, JT 2009 (4) SC 307, and in the case of Daulatram and others Vs. Sodha and others, AIR 2005 SC 233 lie urged that the defendant No. 2 having failed to prove the Will as required under the law, the Trial Court should not have held that the plaintiff has failed to prove her plea that the Will was forged and fabricated. So far as finding recorded by the Trial Court that the possession is not of plaintiff but is that of defendant Nos. 2 and 3 he submitted that in this appeal the appellant/plaintiff has filed I.A. No. 6781 of 2011 under Order 6 Rule 17 of CPC seeking amendment in the plaint to the extent that in case the finding recorded by the Trial Court that the plaintiff is not in possession of the suit land is found to be correct, the possession may also be ordered to be given to the plaintiff by allowing the application for amendment. 9. On the other hand, Shri A.S. Garg, learned Senior Counsel appearing for defendant Nos. 2 and 3 supported the impugned judgment and argued that no doubt, the High Court in exercise of its powers as a First Appellate Court can enter into questions of fact as well and an appeal is a rehearing of the main matter and the Appellate Court can re-appraise, re-appreciate and review the entire evidence oral as well as documentary and can come to its own conclusion, but the Appellate Court is required to keep it in mind that the Trial Court had an advantage and opportunity of seeing the demeanour of witnesses and, hence, the Trial Court's conclusion should not normally be disturbed. In support of this proposition, he placed reliance on a judgment of Supreme Court in the case of Jagdish Singh Vs. Madhuri Devi, (2008) 10 SCC 497 . In support of this proposition, he placed reliance on a judgment of Supreme Court in the case of Jagdish Singh Vs. Madhuri Devi, (2008) 10 SCC 497 . He argued that the plaintiff having filed the suit alleging that the Will is forged and fabricated it was for her to prove the said allegation and having failed to prove the same the Trial Court has rightly dismissed the suit lie also argued that as per plaintiff's own admission, she was not in possession of the suit land and in the circumstances she having failed to ask for consequential relief of possession, her suit was not maintainable and was liable to be and has rightly been dismissed by the Trial Court. In support of this contention, he placed reliance on the judgment of the Supreme Court in the case of Ram Saran and another Vs. Smt. Ganga Devi, AIR 1972 SC 2685 . 10. We have heard learned Counsel for the parties at length and we have also gone through the evidence on record and the impugned judgment. 11. Section 68 of the Evidence Act, 1872 and Section 63 of the Indian Succession Act, 1925 would be relevant for deciding the controversy, which is arising in this appeal. The Suprerrte Court in the case of Daulatram and others Vs. Sodha and others (supra), has held that for a Will to be valid it should be attested by two or more witnesses in the manner provided under Section 63 of the Succession Act and propounder should examine at least one attesting witness to prove the Will. The propounder of the Will has to show that the Will was signed by the testator; that he was at the relevant time in sound disposing state of mind; that he understood the nature and effect of disposition and had put his signatures to the testament of his own free Will and that he had signed it in the presence of the two witnesses who attested in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. In cases of execution of Will being surrounded by suspicious circumstances, it must be satisfactorily explained by the propounder of the Will by leading appropriate evidence. Once these elements are established, the onus which rests on the propounder is discharged. In cases of execution of Will being surrounded by suspicious circumstances, it must be satisfactorily explained by the propounder of the Will by leading appropriate evidence. No doubt that the burden to prove that the Will is forged or that it was obtained under undue influence or coercion or by playing fraud is on the person who alleges it to be so. In Yurnnam Ongbi Tarnpha Ibemma Devi Vs. Ywnmiin Joykumar Singh and others (supra), the Supreme Court has held that as per provisions of Section 63 of the Succession Act, for the due execution of a Will (1) the testator should sign or affix his mark to the Will; (2) the signature or the mark of the testator should be so placed that it should appear that it was intended thereby to give effect to the writing as a Will; (3) the Will should be attested by two or more witnesses, and (4) each of the said witnesses must have seen the testator signing or affixing his mark to the Will and each of them should sign the Will in presence of the testator. The attestation of the Will is not an empty formality. It means signing a document for the purpose of testifying of the signatures of the executant. Since a Will is required by law to be attested, execution has to be proved in the manner laid down in section and the Evidence Act, which requires that at least one attesting witness has to be examined for the purpose of proving the execution of such a document. Therefore, having regards to the provisions of Section 68 of the Evidence Act and Section 63 of the Succession Act, a Will to be valid should be attested by two or more witnesses in the manner provided therein and the propounder thereof should examine one attesting witness to prove the Will. The attesting witness should speak not only about the testator's signature or affixing his mark to the Will but also that each of the witnesses had signed the Will in the presence of the testator. (Emphasis supplied) 12. In the present case, the Will was executed in favour of defendant No. 1 from whom the defendant No. 2 had purchased the suit land. (Emphasis supplied) 12. In the present case, the Will was executed in favour of defendant No. 1 from whom the defendant No. 2 had purchased the suit land. Thus, the defendant No. 2 had stepped into the shoes of the defendant No. 1 and therefore, defendant No. 2 is also propounder of Will and therefore, was legally obliged to have proved the Will by examining at least one attesting witness. however, the defendant No. 2 made no efforts to prove the Will in accordance with Section 68 of the Evidence Act. In the circumstances, when the defendant No. 2 had failed to prove the Will on the strength of which she had purchased the land from the defendant No. 1 who was ex parte it was not necessary for the plaintiff to have led evidence to prove her allegation that the said Will was a forged and fabricated document. In our considered view, the Trial Court has mis-directed itself in wrongly placing the burden to prove that the Will is forged and fabricated on the plaintiff when the initial burden of proving the Will was not discharged by the defendants. In the circumstances, the finding recorded by the Trial Court in this regard is set aside. 13. Admittedly, the plaintiff is the widow of Kaluji, who was the owner of the suit property and who died issueless. Therefore, the plaintiff being the sole heir of Class I of the Schedule to Section 8 of the Hindu Succession Act, 1956 the property left by her deceased husband would devolve in her and as such she became absolute owner of the property in question. 14. True it is that the plaintiff in her deposition has clearly admitted that possession over the suit land is not of her but is of defendant Nos. 2 and 3 and they are cultivating the suit rand and therefore, in view of the law laid dowry the Supreme Court in the case of Narayan Bhagwantrao Gosavi Blaljiwale Vs. 14. True it is that the plaintiff in her deposition has clearly admitted that possession over the suit land is not of her but is of defendant Nos. 2 and 3 and they are cultivating the suit rand and therefore, in view of the law laid dowry the Supreme Court in the case of Narayan Bhagwantrao Gosavi Blaljiwale Vs. Gopal Vinayak Gosavi and others, AIR 1960 SC 100 , in which it has been held that the admission is the best evidence on which the opposing party can rely upon and though not conclusive is decisive of the matter unless successfully withdrawn or proved erroneous, the Trial Court had no option but to dismiss the suit as the suit was hit by proviso to Section 34 of the Specific Relief Act, 1963. However, in the present appeal, the appellant/plaintiff has moved an application (I.A. No. 6781/2011) seeking amendment in the plaint claiming possession of the suit land as aforesaid. Thus, now by way of making a prayer for amendment in the plaint, when the appellant/plaintiff has also claimed possession, in our considered view, in order to do complete justice between the parties, it would be appropriate to allow the application seeking amendment in the plaint instead of non-suiting the plaintiff. 15. We, therefore, allow the application and remand the matter to the Trial Court with liberty to defendants to raise to all objections including the objections about limitation and the Court fees as raised by them in the reply to the said amendment application before the Trial Court by way of consequential amendment in the written statement. The Trial Court shall allow the plaintiff to incorporate the proposed amendment in the plaint and shall also allow the defendant Nos. 2 and 3 to make consequential amendment in the written statement. 16. We also feel it necessary to mention that taking into consideration the averments made in the plaint it is clear that the plaintiff is seeking possession on the basis of title and in the circumstances Article 65 of the Limitation Act would be applicable and the period of limitation would start when the possession of defendants became adverse to the plaintiff. We also make it clear that we have not expressed our view as to whether the suit is barred by limitation or not and it is for the Trial Court to frame necessary issues about limitation and about Court fees and then to decide the said issues on the basis of limited evidence, which may led by the parties only regarding the issues as may be framed about limitation and Court fees. 17. Accordingly, the impugned judgment and decree is set aside by holding that the defendant No. 1 did not acquire any title by virtue of the Will and accordingly, the defendant Nos. 2 and 3, who are claiming to have purchased the property from defendant No. 1 also did not acquire any valid title in them. 18. The appeal is allowed in part. The case is remanded back to the Trial Court for the limited purpose of deciding the issues about possession and the Court fees only. The parties are directed to appear before the Trial Court on 23-7-2012. Parties to bear their own costs.