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2013 DIGILAW 1126 (MP)

Mahaprasad v. Badi Bai

2013-09-17

ALOKARADHE

body2013
JUDGMENT Alok Aradhe, J.:- This appeal is by the plaintiff, which was admitted by a Bench of this Court on following substantial question of law: - “Whether the Will Ex. P/20 dated 27-2-1961 being a 30 year old document and was filed by plaintiff from his (proper) custody should be presumed that it was validly executed by the testator and was validly attested by the witnesses in absence of any evidence in rebuttal under section 90 of the Evidence Act as per the decision of Munnalal, minor and others v. Mst. Kashibai and others, AIR 1947 Privy Council 15 as well as the Division Bench decision of this Court in Rameshwar Prasad v. Krishna Mohanath Raina and others, AIR 1969 Madhya Pradesh?” 2. Facts giving rise to filing of the appeal briefly stated are that the plaintiff filed the suit on the ground that plaintiff's father-in-law namely Sevak was owner of the land admeasuring 4.524 hectares, who had three daughters namely Badi Bai, Halki Bai and Chunni. It was further pleaded that plaintiff and Halki Bai, who was his wife, used to reside with Sevak and used to take care of him, as he had no male issue and therefore, Sevak out of natural love and affection executed a Will dated 27-2-1961 (Ex. P/20) in favour of plaintiff and after the death of Sevak, plaintiff's name was mutated in the revenue records. It was also pleaded that since then the plaintiff is in possession of the suit land as owner thereof. However, the defendants in a clandestine manner on 25-9-2005 got the name of the plaintiff deleted from the revenue records. Alternatively, the plaintiff also claimed title in respect of suit land by adverse possession. Accordingly, the plaintiff filed the suit seeking the relief of declaration of title and permanent injunction. 3. The defendants No. 1 and 2 filed the written statement in which inter alia the claim set-up by the plaintiff was denied. It was pleaded that plaintiff is in possession of one-third share of the suit land i.e. the share of his wife. It was further pleaded that no order of mutation was made in favour of the plaintiff. 3. The defendants No. 1 and 2 filed the written statement in which inter alia the claim set-up by the plaintiff was denied. It was pleaded that plaintiff is in possession of one-third share of the suit land i.e. the share of his wife. It was further pleaded that no order of mutation was made in favour of the plaintiff. The plaintiff got his name mutated in the revenue records fraudulently, which was subsequently set aside vide order dated 25-9-2005 and the defendants No. 1 and 2 as well as plaintiff's wife's name was directed to be recorded in respect of one-third share each in the suit land. 4. The trial Court vide judgment and decree dated 30-4-2010 inter alia held that though the plaintiff has based his claim on the basis of Will dated 27-2-1961 (Ex. P/20), yet in evidence, in paragraph 19, it has been averred that he had purchased the suit land from Sevak and on that basis he got his name mutated in the revenue records. It was further held that the plaintiff has not examined any attesting witnesses to prove the Will. Accordingly, the trial Court came to the conclusion that the execution of the Will has not been proved in accordance with section 68 of the Indian Evidence Act, 1872 as well as section 63(c) of the Indian Succession Act, 1925. The aforesaid decree was affirmed in appeal. 5. Learned counsel for the appellant submitted that the Will dated 27-2-1961 (Ex. P/20) is a document which was 30 years old and was produced before the trial Court from proper custody, therefore, the Courts below grossly erred in not drawing the presumption with regard to its genuineness under section 90 of the Indian Evidence Act, 1872. On the other hand, learned counsel for respondents submitted that the judgment and decree passed by the Courts below is perfectly just and legal and does not call for any interference by this Court in exercise of power under section 100 of the Code of Civil Procedure. 7. I have considered the respective submissions made by learned counsel for the parties and have perused the record. 7. I have considered the respective submissions made by learned counsel for the parties and have perused the record. Section 90 of the Indian Evidence Act provides where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Thus, section 90 of the Evidence Act confers discretion on the Court to draw a presumption with regard to its genuineness. See: Taiba Khatoon v. Hammo, 1966 JLJ S.N. 126. In the case of Kamalnarayan Ramsaranlal Agrawal v. Ram Kishorelal and another, 1958 MPLJ 198 = AIR 1958 M.P. 246 , a Division Bench of this Court has held that in dealing with old documents, the first enquiry which is legitimate is when the document was first disposed. If it was not mentioned in earlier proceeding where it was material, its genuineness can be held to be doubtful. It is equally well settled legal proposition that where suspicious circumstances will are alleged, it would be dangerous to attach presumption on such document under section 90 of the Evidence Act. Thus, it is evident that under section 90 of the Act, the Court is not under an obligation to draw an inference with regard to genuineness of Will. 8. In light of the aforesaid well settled legal position, the facts of the case may be seen. In the instant case, in paragraph 19 of his evidence, the plaintiff has stated that he has purchased the suit land from Sevak and got his name mutated on the basis of the sale deed. The version of the plaintiff is corroborated from Ex. P/2 i.e. Khasra Panchshala which contains an entry that the name of the plaintiff was mutated in the revenue records on the basis of the sale deed executed in his favour. The version of the plaintiff is corroborated from Ex. P/2 i.e. Khasra Panchshala which contains an entry that the name of the plaintiff was mutated in the revenue records on the basis of the sale deed executed in his favour. It is pertinent to mention here that if a Will was executed in favour of the plaintiff by late Sevak, there was no reason why he would not have sought his mutation in the revenue records on the basis of the Will and had sought the mutation on the basis of the sale deed. It is also pertinent to mention here that the copy of the sale deed has not been filed by the plaintiff. Due to aforesaid conduct of the plaintiff, the execution of the Will is shrouded in suspicion. The plaintiff ought to have produced the Will at the time of mutation proceeding. Neither any explanation has been offered for non-production of the Will in mutation proceeding, nor the copy of sale deed has been produced on the basis of which plaintiff got his name mutated in the revenue record. Therefore, in the facts of the case, I am inclined to draw the presumption with regard to validity of the Will. I have carefully gone through the judgment of the Privy Council in the case of Munnalal, minor and others, supra, and the Division Bench decision of this Court in the case of Rameshwar Prasad, supra. The aforesaid decisions nowhere lays down that when the Will which is 30 years old is produced from proper custody, the Court is duty-bound to draw a presumption with regard to its genuineness. 9. For the aforementioned reasons, the substantial question of law framed by this Court is answered in the negative and against the appellant. 10. In the result, the appeal fails and is hereby dismissed with cost. Appeal dismissed.