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Madhya Pradesh High Court · body

2013 DIGILAW 1532 (MP)

Vasant Kumar Jain v. Manakchand

2013-12-06

G.D.SAXENA

body2013
JUDGMENT 1. This appeal under section 96 of the Code of Civil Procedure, 1908 by the defendant-appellant has been filed against a judgment and decree dated 1st February, 2002 rendered in Civil Suit No.17-A/2000 by the Fourth Additional District Judge, Vidisha (M.P.) decreeing thereby the suit of the plaintiffs for declaration of title over the suit property (House No.34) situated in Ward No.5 of the Municipal Council, Vidisha by issuing permanent injunction against the defendant-appellant. 2. The facts in short just for the decision of this appeal are that Pannalal (deceased), the progenitor of the joint family died leaving behind his widow Smt. Rajkumari @ Rajjobai and their three sons, namely, Amarchand (late), Pooranchand (late) and Vasant Kumar (defendant-appellant herein) and also left two houses, first (suit house) is situated in Ward No.5 which was being used for family residence whereas another is situated in Ward No.6 which was a ruined condition and abandoned. The family properties, i.e., two houses mentioned above inherited from late Pannalal Jain were orally partitioned between the successors-members of the family. After family oral partition on the spot, one memorandum of partition, though denied by the defendant-appellant was executed in pursuance of which the successors, namely, Smt. Rajkumari widow of Pannalal, Amarchand and Pooranchand except Vasant Kumar who had no share in that house again partitioned the house on meets and bounds by executing the deed of family settlement on 26.3.1980 whereunder separate and exclusive shares were given. It is stated that before death of Smt. Rajkumari @ Rajjobai wife of Pannalal, she also executed the unregistered Will dated 20th June, 1987 in favour of the plaintiffs. So, after death of Rajkumari @ Rajjobai, the plaintiffs being entitleld claimed her share on the basis of the alleged Will. They filed the suit for declaration of title over the House No.34 situated in Ward No.5 coupled with the share of Smt. Rajkumari @ Rajjobai with a prayer for perpetual injunction against the defendant-appellant. 3. The defendant-appellant Vasant Kumar though admitted the factum of houses belonging to joint Hindu family vis-a-vis partition of the property between the family members, objected to the subsequent family settlement deed executed between them. He disputed that after partition, the plaintiffs and their family started residing in the disputed house as mentioned in the family settlement. 3. The defendant-appellant Vasant Kumar though admitted the factum of houses belonging to joint Hindu family vis-a-vis partition of the property between the family members, objected to the subsequent family settlement deed executed between them. He disputed that after partition, the plaintiffs and their family started residing in the disputed house as mentioned in the family settlement. The defendant-appellant admitted that the house which was in a ruined condition was given to him in the partition and after constructing the house over there he and his family started residing in the newly constructed house. He further disputed that four rooms falling in portion of Smt. Rajkumari were let out to tenant Ram Narayan Neema at the monthly rent of Rs.150/- but admitted the facts that for eviction of the rented portion, he filed a suit against tenant Ram Narayan Neema, which was decreed in his favour vide judgment and decree dated 5th July, 1991 and thereafter the plaintiffs Manakchand and others moved for setting aside ex parte decree dated 5th July, 1991 issued in his favour which was dismissed vide judgment and decree dated 23rd June, 1995 and on appeal by the plaintiffs (Regular Appeal No.71-A/1995), the appellate Court by confirming the judgment and decree dated 23rd June, 1995 dismissed the same vide judgment and decree dated 26th February, 2000. It was further contended by the defendant that he also challenged the execution of unregistered Will executed by Smt. Rajkumari @ Rajjobai in favour of the plaintiffs. Hence, taking the aforesaid grounds it was prayed before the trial Court by the appellant for dismissal of the suit preferred by the plaintiffs. 4. Upon the strength of the pleadings of the parties and the facts and circumstances, the learned trial Court framed issues and after appreciation and analysis of the evidence led by the parties found proved that the oral family partition between the members of the family, i.e., his wife Smt. Rajkumari @ Rajjobai and their three sons namely, Amarchand, Pooranchand and Vasant Kumar was effected which was reduced in writing on 28th February, 1980 and thereafter further family settlement deed dated 26th March, 1980 was executed between Smt. Rajkumari @ Rajjobai and her two sons, namely, Amarchand and Pooranchand on meets and bounds in respect of House No.34 situated in Ward No.5. Pursuant to execution of the first settlement dated 28th February, 1980, Smt. Rajkumari @ Rajjobai and her two sons, namely, Amarchand and Pooranchand started living in House No.34 situated in Ward No.5 separate from appellant-defendant who shifted himself in Ward No.6. It was also found that the portion in which Ram Narayan Neema was a tenant was allotted to Smt. Rajkumari @ Rajjobai on share which remained in her possession till her death. It is also concluded that Smt. Rajkumari @ Rajjobai executed the unregistered Will in favour of plaintiffs bequeathing her portion received in partition of the family House No.34 situated in Ward No.5 at Vidisha. Consequently, the suit filed by the plaintiffs for declaration and perpetual injunction was decreed in favour of the plaintiffs vide judgment and decree dated 1st February, 2002. 5. Being aggrieved by the aforesaid findings contained in the impugned judgment and decree, the present appeal has been submitted by the appellant. 6. The contention put forth by the defendant-appellant is to the effect that the judgment and decree under appeal passed by the trial Court is contrary to the facts, evidence and law, hence, same is liable to be set aside. It is submitted that the plaintiffs by cogent evidence, failed to prove the execution of the memorandum of partition deed which was categorically challenged by the defendant-appellant. The memorandum of partition being unregistered document which requires registration under the Registration Act was inadmissible in evidence and therefore no title is created in favour of the plaintiffs. That apart, execution of Will by Smt. Rajkumari on 20th June, 1987 was on plain paper, hence, plaintiffs were bound to prove the execution of the document as per requirement of section 68 of the Evidence Act and section 63(c) of the Indian Succession Act. This having not been done, the defendant-appellant is legally entitled to claim share in the part of the property left by his mother Smt. Rajkumari in the suit House No.34 under dispute. On these premised arguments, it is prayed that by allowing the appeal, the judgment and decree passed by the learned Court below may be set aside. This having not been done, the defendant-appellant is legally entitled to claim share in the part of the property left by his mother Smt. Rajkumari in the suit House No.34 under dispute. On these premised arguments, it is prayed that by allowing the appeal, the judgment and decree passed by the learned Court below may be set aside. In support of the submissions, learned counsel appearing for the appellant placed reliance on the decisions in the cases of Rajaram v. Hazarimal [1961 JLJ 1058], Puttibai v. Smt. Tulai Bai [1991(I) MPWN SN 170], Gangaram v. Chaudhari Jai Kumar Jain [2001(I) MPWN SN 104], Kastur Chand Chhotelal v. Kapurchand Kewal Chand [ 1975 MPLJ 156 (DB)], H. Venktaarama Ayangar v. B.N. Thimmajamma and another [ AIR 1959 SC 443 ], and Jagram Shakya v. Gokul Prasad [ 2008(1) JLJ 356 ]. 7. On the other hand, the submission put forth by the learned counsel appearing for the respondents-plaintiffs is that the appellant-defendant Basant Kumar had admitted that the oral partition was effected in the year 1973 and a memorandum was written by that time, but nosuch memorandum was either produced or proved. It is further submitted that the trial Court found proved the signature on the memorandum of oral partition dated 28th February, 1980 and the defendant also admitted that after partition he received the entire ruined building situated in Ward No.6 in which he constructed a house. He also admitted that rest of the family members, i.e., his mother Smt. Rajkumari and his two brothers Pooranchand and Amarchand got equal shares in the suit House No.34 situated in Ward No.5. He also admitted that Ram Narayan Neema was tenant of his mother and rent deed was executed in the name of his mother. He had no proof regarding his ownership and tenancy of Ram Narayan Neema. It is also contended that defendant-appellant admitted that the attesting witnesses of the memorandum died prior to the stage of evidence, hence, were not available for evidence before the trial Court. Thus, as per learned counsel the plaintiffs-respondents well proved the execution of the memorandum of partition deed Ex.P-1. It is also submitted that as per provisions of law the attesting witness of the Will, namely, Sardarmal Jain (PW4) had well proved the execution of the Will (Ex.P-3) by Smt. Rajkumari. Thus, as per learned counsel the plaintiffs-respondents well proved the execution of the memorandum of partition deed Ex.P-1. It is also submitted that as per provisions of law the attesting witness of the Will, namely, Sardarmal Jain (PW4) had well proved the execution of the Will (Ex.P-3) by Smt. Rajkumari. Therefore, the learned trial Court on sound and cogent reasonings decreed the suit in favour of the plaintiffs by declaring the title over the suit property and also passed the perpetual injunction against the appellant-defendant. Hence, it is prayed that by confirming the said judgment and decree, the defendant’s appeal may be dismissed. In support of the aforesaid arguments, reliance has been placed by the learned counsel on Khem Chand v. Parwat Singh [1996(II) MPWN SN 87], Deshraj Singh Parmar v. Rambabu Agrawal [ 2009(3) MPLJ 628 ], Fakhruddin v. The State of M.P. [ AIR 1967 SC 1326 ], Narendra Kante v. Anuradha Kante [2010(2) JLJ 210= (2010)2 SCC 77 ], Aneshav Prashad v. Bhuwani Bai [ 2007(1) MPLJ 499 ], Kale and others v. Deputy Director of Consolidation and others [ (1976)3 SCC 119 ], Shashi Kant Banerjee v. Subodh Kumar Banerjee (dead) and another [ AIR 1964 SC 529 ]. 8. In view of the aforesaid arguments, following questions arise for consideration : (i) Whether the plaintiffs-respondents, by evidence successively proved their ownership and title on the part of property after mutual partition through family settlement vide Ex.P-1 dated 28th February, 1980 and by way of Will (Ex.P-3) executed by Smt. Rajkumari in respect of share in property of Smt. Rajkumari @ Smt. Rajjobai and/or the defendant-appellant proved that the memorandum of partition deed executed by all partners of the family was sham and fictious document which has no effect for want of valid partition of property? (ii) Whether the execution of Will (Ex.P-3) in favour of plaintiffs by Smt. Rajkumari was under suspicious circumstances and therefore no right or title of the property could be transferred in favour of the plaintiffs? 9. Heard the learned counsel for the parties. Also perused the record of the trial Court and the law applicable to the present case. 10. On perusal of the pleadings and going through the evidence of the defendant-appellant, it appears that though the defendant specifically pleaded that the property was orally partitioned in the year 1973, but no such memorandum was either produced or proved. Also perused the record of the trial Court and the law applicable to the present case. 10. On perusal of the pleadings and going through the evidence of the defendant-appellant, it appears that though the defendant specifically pleaded that the property was orally partitioned in the year 1973, but no such memorandum was either produced or proved. However, he challenged the memorandum of partition vide Ex.P-1 executed on 28.2.1980 on the stamp papers and contended that the signatures of the partners on the said memorandum of partition deed do not tally with the admitted signatures of the partners. It is also submitted that the memorandum of partition deed Ex.P-1 is not registered which is compulsorily registerable under section 17 of the Registration Act, hence, it is not admissible in evidence. 11. Plaintiff Manakchand, son of late Pooranchand (PW1) stated on oath that after death of his grandfather Pannalal House No.34 situated in Ward No.5 and other house situated in Ward No.6 which was in a dilapidated condition were partitioned between Smt. Rajkumari, his father Pooranchand and two uncles Amarchand and Basant Kumar Jain (defendant). The memorandum of partition of the common property of family was then reduced in writing on 28th February, 1980 on the stamp paper of the cost of Rs.2/-. His father Pooranchand, uncles Amarchand and Basant Kumar signed and his grandmother also put her thumb impression on the memorandum of family partition deed Ex.P-1. In cross-examination, the witness admitted that his father, uncle and grandmother are not alive. He also admitted that sometimes his father Pooranchand and uncle Amarchand used to sign in different ways. He admitted that the oral partition of the property was done prior to the date of memorandum of partition and the partition between them was reduced into writing on 28th February, 1980. The memorandum deed was signed by two attesting witnesses, namely, Amarchand and Uttamchand. As per terms of the partition, his father Pooranchand, Amarchand and his grandmother started residing in House No.34 and his uncle Basant Kumar got possession of another property situated in Ward No.6 where he constructed as house and thereafter started living in newly constructed house. 12. Basant Kumar (DW1) deposed that in the year 1973, the oral partition of the joint properties was done in the presence of panch witnesses Motilal, Mishrilal, Shubhchand, Premnarayan and Sagarmal Jain. 12. Basant Kumar (DW1) deposed that in the year 1973, the oral partition of the joint properties was done in the presence of panch witnesses Motilal, Mishrilal, Shubhchand, Premnarayan and Sagarmal Jain. He stated that when the panchas asked about desire in making partition, he expressed his willingness according to which after partition he got share in rest property of late Smt. Gulab Bai and four rooms which was occupied by tenant Ram Narayan Neema for residing purposes in the House No.34 situated in Ward No.5 with Rs.1,000/- share in sale proceeds of sold house. He stated that Pooranchand, Amarchand and Rajkumari got specified share in the suit House No.34. However, with respect to a plea on the point of oral partition effected in the year 1973, no witness was examined by him. Therefore, on the basis of his bald statement without support from above named panch witnesses in whose presence the oral partition was done, it is not safe to rely and hold that in oral partition four rooms occupied by tenant Ram Narayan were given to him for his residence. 13. Now legal question will be considered as to whether the document memorandum of partition Ex.P-1 requires registration and without registration of the document it has no legal sanctity? 14. In Narendra Kante v. Anuradha Kante [2010(2) JLJ 210= (2010)2 SCC 77 ], the Hon’ble apex Court considered the question of family settlement and its effects and observed as follows : “21.In Kale v. Deputy Director of Consolidation [ (1976)3 SCC 119 ], in which the question of registration of a family arrangement had fallen for consideration. Their Lordship held that a family arrangement may be even oral in which case no registration is necessary. Registration would be necessary only if the terms of the family arrangement are reduced into writing but there also a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made, either for the purpose of recording or for information of the Court for making necessary mutation. In such a case, the memorandum itself does not create or extinguish any right in the immovable properties and, therefore, neither does it fall within the mischief of section 17(2) of the Registration Act, 1908 nor is it compulsorily registrable. 22. In such a case, the memorandum itself does not create or extinguish any right in the immovable properties and, therefore, neither does it fall within the mischief of section 17(2) of the Registration Act, 1908 nor is it compulsorily registrable. 22. Their Lordships in Kale case went on further to conclude that a document, which was no more than a memorandum of what had been agreed to, did not require registration. While holding as above, their Lordships also indicated that even if a family arrangement, which required registration, was not registered, it would operate as a complete estoppel against the parties, which had taken advantage thereof.” 15. The principles govoerning the case whether the document of family settlement or memorandum of partition does or does not require registration of the document are again considered in Amar Nath v. Nathuram [ 2004(1) MPLJ 217 ]. 16. It is admitted in the present case, that after partition, the defendant got the ruined house situated in Ward No.6 on which he constructed dwelling house. He merely disputed the signatures on the memorandum of family settlement/partition deed (Ex.P-1) but not the contents of the document so, the memorandum of partition deed cannot be doubted. 17. Therefore, the learned trial Court rightly held that the joint family property was orally partitioned between the sharers and thereafter an unregistered memorandum of partition deed was executed between the sharers. The defendant could not prove by leading cogent evidence that in earlier oral partition effected in the year 1973 four rooms occupied by tenant Ram Narayan Neema were ever given to him for his residential use and further he also failed to prove that the memorandum of partition deed (Ex.P-1) was sham, false and fictitious document and in the absence of registration, it has no valid effect on partition of family property among the sharers. On the contrary, plaintiff Manakchand (PW1) deposed that by mutual consent, Smt. Rajkumari, Amarchand and Pooranchand partitioned the property House No.34 situated in Ward No.5 on meets and bounds as per map attached with the plaint schedule showing the share of individual persons in different colour ink in the map and deed and the documents were signed by each sharer in the presence of witnesses, namely, Shubhchand Jain and Ghanshyamdas and pursuent to execution of such memorandum, Smt. Rajkumari, Amarchand and Pooranchand started living in the House No.34. However, the defendant-appellant Basant Kumar (DW1) deposed that in his knowledge, there was no such family settlement written and Pooranchand and Amarchand did not sign on such family settlement. But, in cross-examination, he admitted that in the year 1974 he vacated the portion of the House No.34 where he used to live with family and thereafter was shifted in a newly constructed house built up after dismantling the ruined house in Ward No.6 while his brothers Pooranchand, Amarchand and his mother started living in House No.34. He admitted that he had no knowledge that after he left the house, the house was partitioned or not. He also admitted that the portion of the house where tenant Ram Narayan Neema lived was received in partition by his mother. He also admitted that the tenant deed was executed in favour of his mother Smt. Rajkumari @ Rajjobai. Admittedly, said partition deed is an unregistered document. Section 17 of the Registration Act provides that document being partition deed should be executed on stamp duty paper properly valued as per provisions contemplated in the Stamp Act and after execution document further requires registration. The evidence on record shows that the defendant-appellant had received share in the property earlier by way of oral partition before executing the memorandum (Ex.P-1) hence, he has no legal right or title over suit property nor could he challenge the mutual partition on the grounds mentioned above. 18. Now, the last question which is required to be answered is whether the defendant-appellant who is a son of deceased Smt. Rajkumari is deprived of on execution of alleged Will by Smt. Rajkumari @ Rajjobai in favour of plaintiffs who are none else but grandsons of executant and sons of late Pooranchand and Amarchand? 19. Manakchand (PW1) deposed that his grandmother Smt. Rajkumari is dead. She executed a Will (Ex.P-3) in their favour bequeathing her share in favour of the plaintiffs. She put her thumb marks on the Will while witnesses Sardarmal and Babulal signed on the Will. The Will (Ex.P-3) is an unregistered document. In cross-examination, he admitted that on execution of the Will (Ex.P-3), Smt. Rajkumari was ill and his sister-in-law and uncle had come to visit her. Sardarmal Jain (PW4) deposed that Smt. Rajjobai was his mother-in-law and prior to 2-3 years she executed a Will (Ex.P-3) in respect of her share in the property. The Will (Ex.P-3) is an unregistered document. In cross-examination, he admitted that on execution of the Will (Ex.P-3), Smt. Rajkumari was ill and his sister-in-law and uncle had come to visit her. Sardarmal Jain (PW4) deposed that Smt. Rajjobai was his mother-in-law and prior to 2-3 years she executed a Will (Ex.P-3) in respect of her share in the property. Smt. Rajkumari put her thumb marks on the Will whereas he and Babulal Jain put their signatures. He stated that prior to execution of the Will, it was read over to her and she by acceptance put her thumb marks in the presence of the witnesses on the said document. In cross-examination, this witness admitted that he does not remember the date, month and year of the execution of the Will. However, he stated that the Will was written by Premchand, which was admitted by Smt. Rajkumari. Thereafter, it was typed down in the office of Shri Babulal Ji, Advocate. The typed Will was read over to Smt. Rajkumari and thereafter she put her thumb marks on the Will (Ex.P-3). The witness admitted that she was ill but denied that she was seriously ill. 20. Basant Kumar (DW1) deposed that he has no knowledge about execution of the Will but he came to know about such execution of the Will during pendency of the present suit. He stated that he did not make any effort to get knowledge about execution of the Will in favour of plaintiffs. 21. In Girija Dutt Singh v. Gangoli Datt Singh [ AIR 1955 SC 346 ], the Hon’ble apex Court observed as follows : “14. It still remains to consider whether the attestation of the signature of the deceased on the Will, Ex.A-36 was in accordance with the requirements of section 63 of the Indian Succession Act. 21. In Girija Dutt Singh v. Gangoli Datt Singh [ AIR 1955 SC 346 ], the Hon’ble apex Court observed as follows : “14. It still remains to consider whether the attestation of the signature of the deceased on the Will, Ex.A-36 was in accordance with the requirements of section 63 of the Indian Succession Act. Section 63 prescribes that : “(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 the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator....” In order to prove the due attestation of the Will Ex.A-36 Gangotri would have to prove that Uma Dutt Singh and Badri Singh saw the deceased sign the Will and they themselves signed the same in the presence of the deceased.” 22. In Bhagat Ram v. Suresh [ AIR 2004 SC 436 ], the Hon’ble apex Court observed as follows : “11. ‘Will’ and ‘codicil’ are defined respectively in Cl.(h) and (b) of section 2 of the Indian Succession Act, 1925 as under : “(h) ‘Will’ means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after the death; (b) ‘codicil’ means an instrument made in relation to a Will, and explaining, altering or adding to its depositions, and shall be deemed to form part of the Will;” 12. Section 63 provides, by enacting the rules, for the manner in which an unprivileged Will (the class to which the Will in question belongs) shall be executed. The rules are as under : Succession Act, 1925 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 the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall 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.” 13. It is also relevant to refer to section 70 which provides that no unprivileged Will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another Will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged Will is herein before required to be executed, or by the burning, tearing or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same (emphasis supplied). In section 64 of the Succession Act also we find a reference to due attestation of a Will or codicil both. It is provided that if a testator, in a Will or codicil duly attested, refer to any other document then actually written as expressing any part of his intentions, such document shall be deemed to form a part of the Will or codicil in which it is referred to. (Emphasis supplied). 14. According to section 68 of the Evidence Act, 1872 a document required by law to be attested, which a Will is, shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if available to depose and amendable to the process of the Court. (Emphasis supplied). 14. According to section 68 of the Evidence Act, 1872 a document required by law to be attested, which a Will is, shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if available to depose and amendable to the process of the Court. The proviso inserted in section 68 by Act No.31 of 1926 dispenses with the mandatory requirement of calling an attesting witness in proof of the execution of any document to which section 68 applies if it has been registered in accordance with the provisions of the Indian Registration Act, 1908 unless its execution by the person by whom it purports to have been executed is specifically denied. However, a Will is excepted from the operation of the proviso. A Will has to be proved as required by the main part of section 68. It is true that section 63 of Succession Act does not specifically speak of codicil and that omission has prompted the learned counsel for the appellants to urge that the applicability of section 63 above said should be treated as confined to the execution of Wills only. A codicil need not necessarily be attested and, therefore, a codicil need not be proved in the manner contemplated by the main part of section 68 of the Evidence Act; a codicil will attract applicability of the proviso, submitted the learned counsel for the appellants. In our opinion such a submission cannot be countenanced. 17. We hold that the same rules of execution are applicable to a codicil which apply to a Will to which the codicil relates. So also, the evidence adduced in proof of execution of a codicil must satisfy the same requirements as apply to proof of execution of a Will.” 23. In the light of the aforesaid, this Court has now to examine whether the Will executed by Smt. Rajkumari @ Smt. Rajjobai in favour of the plaintiffs is sham and factious as at the time of execution of the Will, the executant Smt. Rajkumari was ill and was not unable to understand the content of the document executed and registered or the effect of execution or registration of the Will. 24. 24. On perusal of the statements of the plaintiff-respondent No.1 Manakchand and one of the attesting witnesses, namely, Sardarmal Jain it is clear that by that time on the wishes of plaintiffs’ grandmother, the Will was drafted and thereafter Munshi (clerk) Premnarayan typed the handwritten draft of the Will in Advocate office where executant of the Will Smt. Rajkumari put her thumb impression on the same in the presence of the attesting witnesses. Thus, the evidence of plaintiff Manakchand is well supported by attesting witness Sardarmal Jain. On the contrary Basant Kumar Jain deposed that neither his mother Smt. Rajkumari (executant) nor the plaintiffs in whose favour the alleged Will was executed informed about the execution of such Will. No cogent reasons for rendering the Will as fictitious or the circumstances in which the execution of Will may become doubtful were assigned or appeared from the evidence of the defendant. Because the share of the executant of the Will was separated by mutual oral partition prior to the execution of the Will, the executant Smt. Rajkumari while depriving her son defendant-appellant, who was separated prior to execution of the Will from the share of her mother, was fully competent to execute the Will in favour of her grandsons (plaintiffs). That apart, the Hon’ble Supreme Court of India, in the case of Sadhu Singh v. Gurdwara Sahib Narike and others [ AIR 2006 SC 3282 ], has clearly laid down that an owner of property has normally the right to deal with the property including the right to devise or bequeath the property and when he does that, a succession under the Act stands excluded and the property passes to the testamentary heirs. Accordingly, therefore, she may execute a Will even in favour of third person depriving natural heir. 25. As regards argument advanced on behalf of the appellant-defendant on the competence of the respondents-plaintiffs to file a suit and grant of decree by the trial Court, it would be clear from perusal of the provisions of section 213 of the Indian Succession Act that grant of probate is not a condition precedent to the filing of a suit in order to claim a right as an executor under the Will. This vesting of rights is enough for the executor to represent the estate in a legal proceeding. This vesting of rights is enough for the executor to represent the estate in a legal proceeding. So, even if the Will is not probated that does not prevent the vesting of the property of the deceased on the executor and consequently any right of action to represent the estate of the executor can be initiated even before grant of probate. Similar opinion has been expressed by Hon’ble the apex Court in the case of Commissioner of Jalandhar Division and others v. Mohan Krishan Abrol and another [ (2004)7 SCC 505 ]. 26. Now, the last but one question which remains for consideration of this appeal is whether after passing the eviction decree against tenant over the disputed portion of the house in favour of the defendant Basant Kumar Jain, subsequent suit for declaration of title and declaration of valid possession with perpetual injection by the plaintiffs-respondents is tenable? 27. In Ranbir Singh (Dr.) v. Asharfi Lal [ (1995)6 SCC 580 , at page 585], the Hon’ble apex Court observed considered the issue of ownership and observed as follows : “9. It may be pointed out that it is well settled law that the question of the title of the property is not germane for decision of the eviction suit. In a case where a plaintiff institutes a suit for eviction of his tenant based on the relationship of the landlord and tenant, the scope of the suit is very much limited in which a question of title cannot be gone into because the suit of the plaintiff would be dismissed even if he succeeds in proving his title but fails to establish the privity of contract of tenancy. In a suit for eviction based on such relationship the Court has only to decide whether the defendant is the tenant of the plaintiff or not, though the question of title if disputed, may incidentally be gone into, in connection with the primary question for determining the main question about the relationship between the litigating parties.l In LIC v. India Automobiles and Co. [SCC pp.300-02, para 21], this Court had an occasion to deal with similar controversy. In the said decision this Court observed that in a suit for eviction between the landlord and tenant, the Court will take only a prima facie decision on the collateral issue as to whether the applicant was landlord. [SCC pp.300-02, para 21], this Court had an occasion to deal with similar controversy. In the said decision this Court observed that in a suit for eviction between the landlord and tenant, the Court will take only a prima facie decision on the collateral issue as to whether the applicant was landlord. If the Court finds existence of relationship of landlord and tenant between the parties it will have to pass a decree in accordance with law. It has been further observed that all that the Court has to do is to satisfy itself that the person seeking eviction is a landlord, who has prima facie right to receive the rent of the property in question. In order to decide whether denial of landlord’s title by the tenant is bona fide the Court may have to go into tenant’s contention on the issue but the Court is not to decide the question of title finally as the Court has to see whether the tenant’s denial of title of the landlord is bona fide in the circumstances of the case.” 28. In the present case, it is admitted that an ex parte decree was passed in favour of defendant-appellant against the tenant Ram Narayan Neema of Smt. Rajkumari, who was owner of the disputed portion of the house wherein alleged tenant resided. It is also true that subsequent litigation in relation to the ex parte decree passed in favour of the defendant-appellant was decided in his favour by the competent Court. It is also true that in prior litigation, the question of ownership between the plaintiffs and defendant were not decided. In that condition the decision of prior litigation will not affect adversely on the decision of ownership of the parties over entire property in question. 29. Thus, on considering the entire factual and legal aspects of the present case, this Court is of the view that the learned trial Judge did not commit any error in deciding the case by the impugned judgment and decree. Hence, the appeal fails and is dismissed with cost. Counsel fee Rs.1,000/- if certified shall be added in the cost of this appeal. Decree be drawn up accordingly.