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2013 DIGILAW 1321 (MP)

Krishna Dubey v. Satendra Kumar Pandey

2013-10-30

G.D.SAXENA, S.K.GANGELE

body2013
Judgment: S.K. Gangele, J.;- 1. This appeal has been filed by the appellant against the judgment and decree dt. 18.5.2012 passed by the trial court in Civil Suit No. 25A/2011. Bhagwati Devi had two children; one son Prakash Narayan Dubey and a daughter Ram Kishori Devi. Her husband Mijaji Lal Dubey died during her lifetime. Bhagwati Devi purchased a house No. 50/779 at Ganesh Bazar (Chavdi Bazar), Lashkar, Gwalior (hereinafter called 'suit property'). 2. The plaintiffs, who are the sons of Ram Kishori Devi, filed a suit for declaration and permanent injunction. They pleaded that the suit house was purchased by Bhagwati Devi from her self earned property. After her death, Prakash Narayan Dubey and Ram Kishori Devi, who were the children of Bhagwati Devi became owner of the suit property in equal proportion. Plaintiffs are the sons of Ram Kishori Devi. Their father constructed a hotel over some portion of the house named as 'Basera Hotel'. He had been residing in the house. Mother of the plaintiffs executed a 'Will' and bequeathed the property in favour of the plaintiffs. Hence, the plaintiffs are the owner of the suit house, however, the defendant was trying to sale the property. Hence, the suit for declaration and permanent injunction was filed. 3. The defendant, who is the wife of Prakash Narayan Dubey son of Bhagwati Devi, in her written statement pleaded that Bhagwati Devi died on 29.12.1972. After her death, the suit house was recorded in the name of her husband Prakash Narayan Dubey in the records of Municipal Corporation Gwalior. He had been using the property and after death of Prakash Narayan Dubey, defendant has been using the property and is in possession of the property as owner. She further pleaded that Ram Kishori Devi had no right to execute the 'Will' in regard to suit property. Defendant also raised an objection in regard to valuation of the suit. She pleaded that the valuation of the suit property is 45 lac and ad valorem court fees is required to be paid on the suit property. She also pleaded that after death of her husband, her name was recorded as owner of the suit property. The defendant also raised an objection in regard to limitation and pleaded that the suit is beyond limitation. 4. She also pleaded that after death of her husband, her name was recorded as owner of the suit property. The defendant also raised an objection in regard to limitation and pleaded that the suit is beyond limitation. 4. On the basis of the pleadings of the parties, trial court framed seven issues to the effect that whether Ram Kishori Devi had executed a 'Will' in favour of the plaintiffs and whether there was oral partition of the suit property between the mother of the plaintiffs and the husband of the defendant. Issue No. 3 is that whether defendant and plaintiffs have equal share in the suit property and whether the defendant has been trying to sale the property or whether she has been residing in the suit house. Issue No. 6 is in regard to valuation of the property and issue No. 7 is in regard to limitation. 5. Trial court after trial has held that the 'Will' was executed by Ram Kishori Devi in favour of the plaintiffs and there was an oral partition between the mother of the plaintiffs and husband of the defendant and the plaintiffs and defendant have equal share in the suit property. The suit is within limitation and proper valuation of the suit has been made by the plaintiffs and the court fees has also been paid properly. On the basis of the aforesaid findings, trial court decreed the suit. 6. Learned counsel for the appellant has contended that the suit filed by the plaintiffs was beyond limitation. The execution of 'Will' was not proved by the plaintiffs and there was no oral partition between the family members. The trial court has committed an error of law in decreeing the suit. 7. Contrary to this, learned senior counsel appearing on behalf of the respondents has contended that the findings recorded by the Trial court are in accordance with law. There was recurring cause of action and the trial court has rightly held that the suit was within limitation. It is further submitted by the learned senior counsel that after death of Bhagwati Devi, the mother of the plaintiffs became entitled equal share in the suit property in accordance with the provisions of Hindu Succession Act. Hence, the trial court has rightly awarded a decree of declaration and permanent injunction. It is further submitted by the learned senior counsel that after death of Bhagwati Devi, the mother of the plaintiffs became entitled equal share in the suit property in accordance with the provisions of Hindu Succession Act. Hence, the trial court has rightly awarded a decree of declaration and permanent injunction. In support of his contentions, learned senior counsel relied on the following judgments: (i) Vijay Goyal Vs. Mandanlal Goyal - 2007 (3) MLJ 140 . (ii) Naroti Dass Vs. Phul Kumar - AIR 2007 P&H 157 . (iii) Gulab Bai Vs. Kamla Bai - 2011 (II) MPWN 91 . 8. Pleadings of the parties have been stated above in the judgment. Plaintiffs examined three witnesses and produced seven documents in favour of their case. Defendant examined two witnesses and produced six documents in favour of her claim. 9 Anant Kumar Pandey (P.W. 1) deposed that Bhagwati Devi had purchased the suit property from her self acquired income. She had one son Prakash Narayan Dubey and one daughter Ram Kishori Devi. Ram Kishori Devi was mother of the plaintiffs and defendant is the wife of Prakash Narayan Dubey. Both Ram Kishori Devi and Prakash Narayan Dubey had equal share in the suit property. Basera Hotel was constructed in the suit house by the father of the witness. Ram Kishori Devi, mother of the plaintiffs had executed a 'Will' (Ex. P/1) and after her death, plaintiffs became owner of the suit property. There was oral partition between mother of the plaintiffs and the husband of the defendant of the suit property. On 18.6.2011, defendant published a notice in the news paper (Ex. P/2) to the effect that she had executed an agreement in regard to sell of the property. In his cross examination, this witness deposed that he had no knowledge that after death of Bhagwati Devi name of Prakash Narayan Dubey was recorded as owner of the suit property in the record of the Municipal Corporation. He further denied that the name of Prakash Narayan Dubey was also recorded in the record of drainage and water works department of Municipal Corporation and Prakash Narayan Dubey had paid the property tax of the house. He admitted the fact that he and his family members had never objected in regard to recording of name of defendant after death of her husband and she deposited the property tax upto 2011. He admitted the fact that he and his family members had never objected in regard to recording of name of defendant after death of her husband and she deposited the property tax upto 2011. He also admitted that on the ground floor two tenants had been residing in some portion of the suit property and they had been paying the rent to Prakash Narayan Dubey and after his death, the rent was paid to the defendant. In answer to this question, the witness said that he had no knowledge about the aforesaid facts. He further admitted that the document (Ex. P/1) was prepared by his father, who was an advocate. He further admitted that particular of the house has not been mentioned in the 'will'. He further deposed that he had no knowledge that when the oral partition had taken place. He further admitted the fact that on the basis of the 'Will' he did not submit any application before any department in regard to recording names of the plaintiffs. 10. Another witness D.K. Pandey (P.W. 2) deposed that Ram Kishori Devi executed a will on 23.5.1996 and she bequeathed the property in favour of the plaintiffs and her husband Maniram Pandey. Maniram Pandey got the Will typed and he had read over the Will to Ram Kishori Devi. She had signed the Will on portion 'A to A' and this witness also signed the Will. He admitted the fact that on the basis of the Will the plaintiffs did not initiate any proceeding in regard to recording of their names as owner of the suit property. 11. Abdul Naim Khan (P.W. 3) deposed that he was working as Tax Collector in the Municipal Corporation and he had brought the file in regard to the house. Copy of Ex. P.4 was issued from his office. The affidavit of Krishna Dubey is original. He further deposed in his cross examination that Krishna Dubey had deposited property tax of the house upto 2011 and her name is recorded as owner in the record of the Municipal Corporation. 12. Defendant Krishna Dubey (D.W. 1) in her evidence deposed that Bhagwati Devi was died on 29.12.1972. There was no partition oral or written during the lifetime of Bhagwati Devi between her husband and Smt. Ram Kishori Devi and for the last 30 years she has been using the property. 12. Defendant Krishna Dubey (D.W. 1) in her evidence deposed that Bhagwati Devi was died on 29.12.1972. There was no partition oral or written during the lifetime of Bhagwati Devi between her husband and Smt. Ram Kishori Devi and for the last 30 years she has been using the property. After death of Bhagwati Devi name of Prakash Narayan Dubey was recorded in the record of Municipal Corporation, Gwalior and the same name was recorded in the record of Water Works Department and Electricity Department. The plaintiffs never applied for recording of their names as owner of the house. The house tax was paid by Prakash Narayan Dubey, husband of the witness and thereafter he died on 18.6.2009. After his death, name of the witness was recorded as owner of the house. 13. Smt. Sarla Karara (D.W. 2) deposed that her father-in-law Mr. Tahalram had taken a shop on rent which is the part and parcel of the suit house from Bhagwati Devi and after her death, they had paid the rent to Prakash Narayan Dubey and after death of Prakash Narayan Dubey, the rent has been paid to the defendant. After death of Prakash Narayan Dubey, defendant Krishna Dubey has been residing in the house. 14. From the oral evidence, it is clear that after death of Bhagwati Devi, name of the husband of the defendant Prakash Narayan Dubey was recorded as owner in the record of the Municipal Corporation and after death of Prakash Narayan name of defendant was recorded as owner of the suit house. She had paid property tax of the house and before that Prakash Narayan Dubey had been paying property tax of the house. Name of Prakash Narayan Dubey was also recorded in the records of Water Works Department and Electricity Department. Receipts in this regard have been filed as Ex. D/6. Ex. D/3 is the copy of order in regard to change of name by which name of Prakash Narayan was recorded as owner of the house in place of Bhagwati Devi. The defendant and her husband had been getting rent of the shops situate on the ground floor of the house. D/6. Ex. D/3 is the copy of order in regard to change of name by which name of Prakash Narayan was recorded as owner of the house in place of Bhagwati Devi. The defendant and her husband had been getting rent of the shops situate on the ground floor of the house. The plaintiffs at no point of time tried or took any step in regard to recording their names as owner of the house neither they submitted any objection in regard to ownership of the defendant or her husband recorded in the Municipal Corporation. If there was any oral partition between the mother of the plaintiffs and husband of the defendant, the property must be partitioned accordingly and names of the persons must be recorded in the record of Municipal Corporation. Even after execution of the 'Will' (Ex. P/1), the plaintiffs may had tried to record their names as owner of the suit house or they may had resisted recording of names of defendant and her husband as owner of the house but they had not done anything. In this regard, Anant Kumar Pandey (P.W. 1), who is plaintiff, has admitted in his cross examination that he had not taken any step in regard to recording his name or recording of names of other plaintiffs as owner of the house neither they submitted any objection. The 'Will' (Ex/P-1) is the unregistered will. It is dated 23.5.1996. The suit was filed in the year 2011. For a period of 15 years, the plaintiffs kept mum and did not lodge their claim in regard to ownership of the suit house before any authority or any department neither they objected about the ownership of the defendant. It is a suspicious circumstance. Anant Kumar Pandey (P.W. 1) and D.K. Pandey (P.W. 2), who is the attesting witness of the 'Will' (Ex. P/1), admitted in their cross examination that the 'will' was prepared by the father of the plaintiffs, who was an advocate. It means that he had taken active part in preparation of the 'will'. 15. Hon'ble Supreme Court in the case of H. Venkatachala Vs. P/1), admitted in their cross examination that the 'will' was prepared by the father of the plaintiffs, who was an advocate. It means that he had taken active part in preparation of the 'will'. 15. Hon'ble Supreme Court in the case of H. Venkatachala Vs. B.N. Thimmajamma reported in AIR 1959 SC 443 has held as under in regard to the facts which have to be taken into consideration by the court for the purpose of proof of a Will:- There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be vary shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances, or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document in accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveator; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter. Apart from the suspicious circumstances above referred to in some cases the wills propounded disclose another infirmity. Propounder themselves take a prominent part in the execution of the wills which confer on them substantial benefits. Apart from the suspicious circumstances above referred to in some cases the wills propounded disclose another infirmity. Propounder themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. 16. Hon'ble Supreme Court in Bharpur Singh Vs. Shamsher Singh reported in (2009) 3 SCC 687 has held as under:- 22. We may notice that in Jaswant Kaur v. Amrit Kaur this Court pointed out that when the will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. An adversarial proceeding in such cases becomes a matter of court's conscience and propounder of the will has to remove all suspicious circumstances to satisfy that the will was duly executed by the testator where for cogent and convincing explanation of suspicious circumstances shrouding the making of will must be offered. 23. Suspicious circumstances like the following may be found to be surrounded in the execution of the will: (i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature. (ii) The condition of the testator's mind may be very feeble and debilitated at the relevant time. (iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason. (iv) The dispositions may not appear to be the result of the testator's free will and mind. (v) The propounder takes a prominent part in the execution of the will. (vi) The testator used to sign blank papers. (vii) The will did not see the light of the day for long. (viii) Incorrect recitals of essential facts. 24. The circumstances narrated hereinbefore are not exhaustive. Subject to offer of reasonable explanation, existence thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of the will had been duly proved or not. (viii) Incorrect recitals of essential facts. 24. The circumstances narrated hereinbefore are not exhaustive. Subject to offer of reasonable explanation, existence thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of the will had been duly proved or not. It may be true that the will was a registered one, but the same by itself would not mean that the statutory requirements of proving the will need not be complied with. 17. In the aforesaid case, Hon'ble Supreme Court has specifically held that where propounder himself had taken prominent part in the execution of 'Will' which confers on him substantial benefit, it is a suspicious circumstance. In the present case, father of the plaintiffs had taken prominent part in the execution of the 'Will'. He was an advocate. The plaintiffs kept mum for a period of 15 years and did not lodge any claim before any authority or before any court in regard to their rights on the basis of the 'Will'. It is also a suspicious circumstance. 18. Hon'ble Supreme Court in H. Venkatachala (supra) quoted above has clearly held that the presumption of proof of signature is liable to be rebutted by proof of suspicious circumstances and what circumstances would be recorded as suspicious can not be precisely defined, it would depend upon the facts of the case. It is a human nature that if a person gets any right in a property, normally he must lodge a claim before the competent authority in regard to ownership to substantiate his right. In the present case, the plaintiffs kept mum for a period of 15 years and father of the plaintiffs had also taken active part in execution of the 'Will'. He got typed the will. The will is unregistered. In such circumstances, in our opinion, the trial court has committed error of law in holding that the execution of 'Will' has been proved by the plaintiffs in accordance with law in view of the facts that the name of the defendant and her husband was recorded as owner in the record of the Municipal Corporation and initially the husband of the defendant and thereafter the defendant has been receiving rent of the ground floor of the suit property, which was rented out to the tenants. 19. 19. The theory of oral partition could not on the basis of the aforesaid circumstances because there is no proof that for a period of 15 years, the partition got effected. 20. Now the plaintiffs can claim their share in the house on the basis of inheritance, however, the plaintiffs had not filed the suit for partition, neither they had paid any court fees in this regard and valued the suit accordingly for the purpose of partition because as per Section 7 of the Court Fees Act, 1870, ad valorem court fees is payable on a partition suit. 21. In regard to question of limitation, the suit has been filed by the plaintiffs for declaration and permanent injunction. Article 58 of the Limitation Act, 1963 (hereinafter referred to Limitation Act) prescribes three years limitation for the aforesaid purpose from the date when the right to sue first accrues. 22. Hon'ble Supreme Court in Khatri Hotels Pvt. Ltd. Vs. Union of India reported in 2011 (9) SCC 126 has held as under in regard to Article 58 of the Limitation Act: 30. While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word "first" has been used between the words "sun" and "accrued". This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued. 23. From the aforesaid judgment of the Hon'ble Supreme Court, it is clear that in accordance with the Article 58 of the Indian Limitation Act, the period of limitation would begin to run from the date when the right of first accrues and successive failure of right will not give right of fresh cause of action. In the present case, after death of Bhagwati Devi, who died on 29.12.1972, name of Prakash Narayan Dubey was recorded as owner of the suit house in the Municipal Corporation. Ex. D/3 is the document in this regard. In the present case, after death of Bhagwati Devi, who died on 29.12.1972, name of Prakash Narayan Dubey was recorded as owner of the suit house in the Municipal Corporation. Ex. D/3 is the document in this regard. It is dated 17.5.1982, hence, the cause of action accrue to the plaintiff when name of Prakash Narayan Dubey was recorded as owner of the house in the record of Municipal Corporation. After death of Prakash Narayan Dubey, name of defendant was recorded in the Municipal Corporation. Prakash Narayan Dubey was died on 18.6.2007. The tenants had been residing in the ground floor of the house for the last 30 years. They had been paying rent to Prakash Narayan Dubey and after his death to the defendant. Hence, the finding recoded by the trial court hat the cause of action accrued to the plaintiffs when the notice was published by the defendant in the news paper is contrary to law. Hence, the suit filed by the plaintiffs for declaration and permanent injunction is time barred. 24. Learned senior counsel for the respondent relied on the cases in regard to the suit of partition. In the present case, as earlier held, the plaintiffs did not file any suit for partition. They had only claimed decree of declaration and permanent injunction. Theory of oral partition has also not been found proved. In such circumstances, case laws relied on by the learned senior counsel will not help him. 25. The case has been considered on the basis of claim lodged by the plaintiffs for declaration and permanent injunction. The claim of the plaintiffs has not been considered on the basis of partition. In this regard, the plaintiffs are at liberty to file an appropriate suit if they want to do so. Consequently, the appeal filed by the appellant is hereby allowed. The judgment and decree passed by the trial court is hereby set aside. The suit is dismissed It is further observed that the plaintiffs are at liberty to file independent proceeding or suit for partition and the finding recorded by the court will not affect the aforesaid suit. No order as to costs.