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2013 DIGILAW 155 (MP)

Ramnarayan Tiwari v. Uma Shanker Pacholi

2013-02-05

R.S.JHA

body2013
JUDGMENT : The appellants have filed this appeal being aggrieved by the judgment and decree dated 23-3-1995 passed by the Additional Judge to the Court of District Judge, Hoshangabad in Civil Appeal No. 14-A/90 affirming the judgment and decree dated 28-2-1990 passed by the Civil Judge Class II, Seoni Malwa, in Civil Suit No. 34-A/1987. 2. Before adverting to the issue involved in the appeal, it is necessary to take note of the genesis of the dispute. 3. The land in question initially belonged to one Anant Ram and thereafter to his son Kanhaiyalal. Kanhaiyalal had two sons, Sunderlal and Shyamlal. Sunderlal died in the year 1919 issue-less leaving behind his widow. Smt. Rajkunwar Bai, Shyamlal had three sons. The appellants are the sons of Shyamlal whereas the original respondent, Ultra Bai, is the daughter of the brother of Smt. Rajkunwar Bai, widow of Sunderlal. Rajkunwar Bai died on 7-9-1982 before which she is said to have executed a Will on 26-7-1982 in favour of Ultra Bai, her brother's daughter. As Ultra Bai had filed an application for recording her name in the disputed properly on the strength of the Will dated 26-7-1982, the appellants/plaintiff filed a suit for declaration and injunction in respect of the disputed area of 3.009 Hectares of land out of the total area of 5.715 Heclares of Khasra No. 376/1 and 376/3, Paiwari Halka No. 33, Seoni Malwa. The suit was opposed by the respondent/defendant on the ground that the land in question had been bequeathed to Ultra Bai by Rajkunwar Bai by registered Will dated 26-7-1982 (Exh. D-1), and therefore, the appellants had no right on the same. 4. Both the Courts below have dismissed the claim of the appellants by recording a finding to the effect that the Will dated 26-7-1982 executed in favour of Ultra Bai was a registered document and, therefore, the appellants have no right or claim on the land in question. 5. This second appeal was admitted by this Court on the following substantial question of law :- "Whelher the Will executed dated 26-7-82, by Smt. Rajkunwar Bai, has been proved in accordance with law, as per Section 63 of Indian Succession Act ?" 6. Arguments before this Court have, therefore, been limited to the aforesaid substantial question of law. 7. 5. This second appeal was admitted by this Court on the following substantial question of law :- "Whelher the Will executed dated 26-7-82, by Smt. Rajkunwar Bai, has been proved in accordance with law, as per Section 63 of Indian Succession Act ?" 6. Arguments before this Court have, therefore, been limited to the aforesaid substantial question of law. 7. It is submitted by the learned Senior Counsel for the appellants that the Will dated 26-7-1982 was a registered document and one of the attesting witness, husband of Uttra Bai, Ramashankar who has prosecuted the entire matter as Power of Attorney Holder of Uttra Bai, has deposed in support of the Will as D.W. 1. It is submitted that a bare reading of his statement makes it clear that the requirement of proving and establishing a Will as provided by Section 63 of the Indian Succession Act, 1925 (hereinafter referred to as "the Succession Act") and Section 68 of the Indian Evidence Act, 1872 (hereinafter referred to as "the Evidence Act"), have not been fulfilled. It is submitted that the sole attesting witness Ramashankar (D.W. 1), has nowhere stated that Rajkunwar Bai understood the nature and effect of the Will; that the contents of the same were read out to her; that she understood the contents thereof which were explained to her; and that she had affixed her signature/thumb impression on the same knowing what it contained. 8. It is submitted that in the absence of any such statement on the part of the attesting witness, the Will could not have been relied upon by the Courts below to dismiss the appellants claim as the requirement of Section 63 of the Succession Act and the requirement of Section 68 of the Evidence Act, were not fulfilled. It is submitted that in the absence of fulfilling the requirement of proving the Will as contained in the aforesaid provisions, mere registration of the Will would not confer any authenticity on it as far as the contents, nature and effect of the same is concerned. 9. The learned Senior Counsel for the appellants, in support of his submissions, has relied upon the decision of the Supreme Court rendered in the case of H. Venkatachala lyengar Vs. B.N. Thimmajamma and others AIR 1959 SC 443 , Rani Purnima Debi and another Vs. 9. The learned Senior Counsel for the appellants, in support of his submissions, has relied upon the decision of the Supreme Court rendered in the case of H. Venkatachala lyengar Vs. B.N. Thimmajamma and others AIR 1959 SC 443 , Rani Purnima Debi and another Vs. Kumar Khagendra Narayan Deb and another, AIR 1962 SC 567 , Bhagat Ram and another Vs. Suresh and others, (2003) 12 SCC 35 and an unreported judgment of the Supreme Court rendered in Civil Appeal No. 1153/1966, Smt. Maya Devi Vs. Anant Ram (deceased) and others, decided on 31-10-1969. 10. The learned Counsel for the respondent No. 1, per contra, submits that the Will was duly typed out and was read out to Rajkunwar Bai and thereafter, she affixed her thumb impression on the same in front of the Registrar. It is further stated that as provided for and required by Section 63 of the Succession Act, one of the attesting witness namely Ramashankar (D.W. 1), has given his statement in affirmation thereof and in such circumstances no fault can be found with the findings recorded by the Trial Court and affirmed by the Appellate Court. 11. It is submitted that the Courts below have rightly dismissed the claim of the appellants as there is a concurrent finding of fact in this regard which does not suffer from any perversity or material irregularity and, therefore, does not warrant interference and the substantial question of law as framed by this Court does not arise for adjudication in the present appeal. 12. I have heard the learned Counsel for the parties at length. 12. I have heard the learned Counsel for the parties at length. From a perusal of the decision of the Supreme Court rendered in the case of H. Venkatachala lyengar (supra), it is clear that the Supreme Court, while analysing the provisions of Sections 59 and 63 of the Succession Act and Sections 67 and 68 of the Evidence Act, has held that it is necessary for the propounder of the Will to prove that the testator signed it; that he understood the nature and effect of the depositions of the Will; and that he had affixed his signature on the Will knowing what it contains, in the following terms :- "18.......Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by Will and the three illustrations to this section indicate what is meant by the expression 'a person of sound mind' in the context. Section 63 requires that the testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will. This section also requires that the Will shall be attested by two or more witnesses as prescribed. Thus, the question as to whether the Will set up by the propounder is proved to be the last Will of the testator has to be decided in the light of these provisions. Has the testator signed the Will Rs. Did he understand the nature and effect of the dispositions in the Will Rs. Did he put his signature to the Will knowing what it contained ?....." 13. In the case of Smt. Maya Devi (supra), the Supreme Court while taking into consideration the judgment rendered in the case of H. Venkatachala lyengar (supra), has further held that a claim based on a Will must fail in the absence of any evidence to show that the executor of the Will had informed anybody previously that he was going to make a Will or that the scribe of the. Will had been given instructions by the executor for drawing up a Will moreso in the absence of examining the scribe of the Will, in the following terms :- "In our view, the District Judge and the High Court had come to the correct conclusion about the Will not being a genuine document. No evidence was led to show that Shankar Dayal had even informed anybody previously that he was going to make a Will. The scribe of the Will who could have given evidence about the testator's giving instructions for the drawing up of the Will was not examined....." 14. In the case of Rani Purnima Debi (supra), the Supreme Court has again analysed the law in this regard while specifically laying down that the aforesaid requirements are not excluded nor can they be overlooked merely on the ground or on the fact that the Will has duly been registered in the following terms in Paras 23 and 24 :- "23. There is no doubt that if a Will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a Will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a Will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration will dispel the doubt as to the genuineness of the Will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the Will did not read it over to the testator or did not bring home to him that he was admitting the execution of a Will or did not satisfy himself in some other way (as, for example, by seeing the testatory reading the Will) that the testator knew that it was a Will the execution of which he was admitting, the fact that the Will was registered would not be of much value. It is not unknown that registration may take place without the executant really knowing what he was registering. Law Reports are full of cases in which registered Wills have not been acted upon (see for example, Vellasaway Sarvai Vs. L. Sivaraman Servai, ILR 8 Rang 179; AIR 1930 PC 24 , Surendra Nath Lahiri Vs. Jnanendra Nath Lahiri, AIR 1932 Cal. 574 and Girji Datt Singh Vs. Gangotri Datt Singh, AIR 1955 SC 346 . Therefore, the mere fact of registration may not by itself be enough to dispel all suspicion that may attach to the execution and attestation of a Will; though the fact that there has been registration would be an important circumstance in favour of the Will being genuine if the evidence as to registration establishes that the testator admitted the execution of the Will after knowing that it was a Will the execution of which he was admitting. 24. The question, therefore, is whether in the circumstances of the present case, the evidence as to registration discloses that the testator knew that he was admitting the execution of a Will when he is said to have put down his signature at the bottom of the Will in the presence of Arabali. We have scrutinised that evidence carefully and we must say that the evidence falls short of satisfying us in the circumstances of this case that the testator knew that the document the execution of which he was admitting before Arabali and at the bottom of which he signed was his Will. Therefore, we are left with the bald fact of registration which in our opinion is insufficient in the circumstances of this case to dispel the suspicious circumstances which we have enumerated above. We are, therefore, not satisfied about the due execution and attestation of this Will by the testator and hold that the propounder has been unable to dispel the suspicious circumstances which surround the execution and attestation of this Will. In the circumstances, no letters of administration in favour of the respondent can be granted on the basis of it." 15. We are, therefore, not satisfied about the due execution and attestation of this Will by the testator and hold that the propounder has been unable to dispel the suspicious circumstances which surround the execution and attestation of this Will. In the circumstances, no letters of administration in favour of the respondent can be granted on the basis of it." 15. In the case of Bhagat Ram (supra), the Supreme Court while again analysing the aforesaid aspect has held that on mere registration of a Will, a presumption as to the correctness or regularity of the attestation cannot be drawn and a person claiming through the Will is required to specifically plead and prove through the attesting witness that the requirement of Section 63 of the Succession Act and Section 68 of the Evidence Act, have been complied with in spite of due registration in the following terms in Paras 21 and 22 :- "21. Registration of a document does not dispense with the need of proving the execution and attestation of a document which is required by law to be proved in the manner as provided in Section 68 of the Evidence Act. Under Section 58 of the Registration Act, the Registrar shall endorse the following particulars on every document admitted to registration:- (1) the date, hour and place of presentation of the document for registration, (2) the signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assign or agent of any person, the signature and addition of such representative, assign or agent, (3) the signature and addition of every person examined in reference to such docuirient under any of the provisions of this Act, and (4) any payment of money or delivery of goods made in the presence of the Registering Officer in reference to the execution of the document, and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution. 22. Such particulars as are referred to in Sections 52 and 5_8 of the Registration Act are required to be endorsed by Registrar alongwith his signature and date on document under Section 59 and then certified under Section 60. 22. Such particulars as are referred to in Sections 52 and 5_8 of the Registration Act are required to be endorsed by Registrar alongwith his signature and date on document under Section 59 and then certified under Section 60. A presumption by reference to Section 114 [Illustration (e)] of the Evidence Act shall arise to the effect that the events containing in the endorsement of registration, were regularly and duly performed and are correctly recorded. None of the endorsements, required to be made by the Registrar of Deeds under the Registration Act, contemplates the factum of attestation within the meaning of Section 63 (c) of the Succession Act or Section 68 of the Evidence Act being endorsed or certified by the Registrar of Deeds. The endorsements made at the time of registration are relevant to the matters of the registration only (See : Kunwar Surendra Bahadur Singh Vs. Thakur Behari Singh, AIR 1939 PC 117 ). On account of registration of a document, including a Will or codicil, a presumption as to correctness or regularity of attestation cannot be drawn. Where in the facts and circumstances of a given case, the Registrar of Deeds satisfies the requirement of an attesting witness, he must be called in the witness box to depose to the attestation. His evidence would be liable to be appreciated and evaluated like the testimony of any other attesting witness." 16. In view of the law as aforesaid laid down by the Supreme Court, it is clear that the Court while looking into these aspects is required to record a finding to the effect that apart from due registration of the Will, the attestator knew that he/ she was signing a Will, that he/she has in fact signed it; that he/she understood the nature and effect of the deposition in the Will, that it was read out to him/her and he/she understood its content and that he/she puts his/her signature on the Will knowing what it contained. 17. The substantial question of law, as framed by this Court, in the present appeal has to be decided on the basis of the aforesaid parameters prescribed by Section 63 of the Succession Act and Section 68 of the Evidence Act, as has been held by the Supreme Court in the cases referred to above. 18. In the instant case, Exh. D-1 is the registered Will dated 26-7-1982. 18. In the instant case, Exh. D-1 is the registered Will dated 26-7-1982. A perusal of this document indicates that it contains the thumb impression of Rajkunwar Bai and that it has been written by one Manaklal Sharma who has not been examined. It also contains the signatures of two attesting witnesses Bhajan Singh and Rama Shankar (D.W. 1) who is the husband of the beneficiary of the Will, Ultra Bai and is the Power of Attorney holder who has prosecuted the matter on her behalf before all the Courts. The note on the back side of the Will further indicates that at the time of execution of the Will Rajkunwar Bai was blind as she could not see and that she chose to affix her thumb impression as her hand was not steady and was shaking and, therefore, could not affix her signature. 19. The only attesting witness in support of the Will is Rama Shanker (D.W. 1). From a perusal of his statement it is clear that he has not stated anywhere in his examination-in-chief that the Will was written and prepared on the instructions of Rajkunwar Bai; that it was typed out and read out to her to make sure that it was in accordance with the instructions issued by her and as per her wishes or that the contents thereof were ever read out to her and that she understood the same before affixing her thumb impression on the Will. 20. In the instant case, the aforesaid aspect assumes tremendous importance in view of the fact that the Registrar, while registering the Will, has specifically endorsed that Rajkunwar Bai, at the time of execution of the Will, was blind and apparently could not see what was written and in such circumstances it was all the more important that the attesting witness should have clearly stated that the Will was drafted out as per her instructions; that it was written down in accordance with her instructions; that it was read out to her; and that she understood the contents thereof before affixing her thumb impression on the same. Surprisingly, the scribe of the Will Manaklal Sharma has also not been examined in this regard nor has the other attesting witness Bhajan Singh been examined. Surprisingly, the scribe of the Will Manaklal Sharma has also not been examined in this regard nor has the other attesting witness Bhajan Singh been examined. The statement of the Registrar has also not been recorded and, therefore, there is no indication or evidence on record to indicate that the Will in question was written down in accordance with the wishes of Rajkunwar Bai; that it was ever read out to her or that she understood the contents of the same before she affixed her thumb impression on the Will. 21. Apart from the aforesaid aspects, it is also apparent from a perusal of the oral and documentary evidence that Rajkunwar Bai, after the death of her husband in the year 1919 was living in her maternal village and was regularly being given her share of the produce by the appellants as stated by Rama Shankar (D.W. 1) himself in his statement; that she continued to stay in her maternal house till May, 1982 when the respondent Ultra Bai and her husband Rama Shankar (D.W. 1) brought her to their village; that the Will in question dated 26-7-1982 was executed within two months of her shifting to the house of the respondent/defendant whereafter she died in September, 1982 as admitted by Rama Shankar (D.W. 1) in his statement, that admittedly her stay in the house of the respondent/defendant was only for a very short period of four months and, therefore, apparently Rajkunwar Bai had neither been looked after or kept by the respondent/defendant for a very long time, that Rajkunwar Bai was blind at the time when the Will was executed and there is nothing on record to show that she had ever expressed any desire or issued any instructions to the respondent/defendant or any other person regarding bequeathing of her share of the property to the respondent/defendant and that the Will mentions the existence of a previous Will which has neither been produced and is non-existent and mentions Khasra No. 376 as the land in question although much prior to the date of the execution of the Will, Khasra No. 376 had been renumbered as Khasra Nos. 376/1 and 376/3. 22. 376/1 and 376/3. 22. When the aforesaid attending circumstances are re-read alongwith the fact that there is total absence of any evidence to the effect that Rajkunwar Bai had ever issued any instructions for drawing up the Will in favour of the respondent-Uttra Bai or that the testator at the relevant time was in a sound and disclosing state of mind or that the Will was ever read out to her and explained to her at the time of its execution or that she knew that she was executing a Will in favour of Ultra Bai and that the scribe of the Will, the Registrar and other witnesses, have not been examined and Bhagirath Prasad (P.W. 1), who is alleged to have been present at the time of execution of the Will by Rama Shankar (D.W. 1) in his statement, has specifically denied any knowledge about the Will, then in my considered opinion, it has to be held that the Will has not been proved in accordance with the provisions of Section 63 of the Succession Act and Section 68 of the Evidence Act and the findings recorded by the Courts below in ignorance of the aforesaid aspect, apparently suffers from perversity. 23. In view of the aforesaid evidence, oral and documentary, on record I am of the considered opinion that the findings recorded by both the Courts below to the effect that the respondent/defendant had pleaded, proved and established the Will as required by Section 63 of the Succession Act and Section 68 of the Evidence Act is perverse and suffers from material irregularity. 24. I am also of the considered opinion that in view of the law as consistently laid down by the Supreme Court in the aforementioned judgments, the substantial question of law framed by this Court in the present appeal deserves to be and is hereby answered in favour of the appellants. 25. The appeal, filed by the appellants, is accordingly allowed. I am also of the considered opinion that in view of the law as consistently laid down by the Supreme Court in the aforementioned judgments, the substantial question of law framed by this Court in the present appeal deserves to be and is hereby answered in favour of the appellants. 25. The appeal, filed by the appellants, is accordingly allowed. The impugned judgment and decree dated 23-3-1995 passed by the Additional Judge to the Court of District Judge, Hoshangabad in Civil Appeal No. 14-A/90 and the 'judgment and decree dated 28-2-1990 passed by the Civil Judge Class II, Seoni Malwa, in Civil Suit No. 34-A/1987 are hereby set aside and it is accordingly held that the appellants are entitled to a decree of declaration and injunction as prayed for in respect of the land bearing Khasra Nos. 376/1 and 376/3, Patwari Halka No. 33, Seoni Malwa. 26. In the facts and circumstances, there shall be no order as to costs.