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2013 DIGILAW 1581 (MP)

Laxmi Bai v. Dropadi Bai

2013-12-20

K.K.TRIVEDI

body2013
JUDGMENT Keshav Kumar Trivedi, J. Heard on the question of admission. 2. This second appeal by the appellant/plaintiff is against the judgment and decree dated 20.10.2010 passed in regular Civil Appeal No.3-A/2010 by the III Additional District Judge, Damoh, affirming the judgment and decree dated 25.01.2010 passed in Civil Suit No.46- A/2006 by the I Civil Judge, Class-II, Damoh. 3. The appellant/plaintiff filed a suit for declaration of title and possession of certain land described in the plaint stating therein that the appellant was the daughter of one Janku, who has acquired certain property and who has died on 15.01.1992. The mother of the appellant/plaintiff has also died on 16.11.1992. The entire property, shown in the suit belonging to said Janku, was in fact inherited by the appellant. However, the respondent No.2, who was the son of somebody else, engaged as a labourer by the said Janku, started claiming the property in suit on the strength of a Will said to be executed by Janku in his favour and, therefore, the suit was required to be filed. It was further claimed that the orders of mutation of property in the name of respondent No.2, so issued by the Revenue Authorities, were null and void. 4. The claim made by the appellant was contested by the respondents inter alia stating that appellant was not the daughter of Janku. It was stated that only one son was born to Janku, namely Pooran. Since the said son was mentally retarded and since the mother of the appellant, namely Ujiyari, left Janku and started living with somebody else, only Pooran was legally entitled to receive all the property left behind by Janku. It was contended that since Pooran was mentally retarded, the property in suit was bequeathed by Janku in favour of Ganesh, who is son of Pooran. It was categorically pleaded that the appellant/plaintiff was the daughter of Ujiyari but not out of the wedlock of Janku and, therefore, she was not entitled to inherit the property left behind by Janku. 5. The Trial Court framed the issues and reached to the conclusion that the appellant/plaintiff has failed to prove her claim and dismissed the suit. It was categorically pleaded that the appellant/plaintiff was the daughter of Ujiyari but not out of the wedlock of Janku and, therefore, she was not entitled to inherit the property left behind by Janku. 5. The Trial Court framed the issues and reached to the conclusion that the appellant/plaintiff has failed to prove her claim and dismissed the suit. The appellant preferred an appeal before the lower Appellate Court and after marshalling the evidence, the lower Appellate Court reached to the conclusion that the appellant was also daughter of Janku as the fact was proved in evidence to this effect by the appellant. Such evidence was not properly examined by the Trial Court. However, as far as the Will is concerned, the lower Appellate Court concurred with the findings of the Trial Court and held that since self acquired property was bequeathed by Janku in favour of respondent No.2, the appellant had no right to claim any share in the said property and as such the claim made to that extent in the suit was rightly dismissed by the Trial Court. In view of these findings, the lower Appellate Court dismissed the appeal of the appellant, hence this appeal. 6. Learned Counsel for the appellant contended that such findings recorded by the Courts below are perverse as document Exhibit D-2, alleged Will, cannot be said to be proved in terms of law. It is contended that if the evidence of parties are examined, it would be clear that the Will was not rightly proved. Thus, it is contended that both the Courts below have erred in holding that Exhibit D-2, the Will, was fully proved and as such the appellant would not be entitled to any relief in the plaint. It is contended that such perverse findings are liable to be set aside. 7. Such an aspect is examined. It is the settled position of law that a Will is to be proved in the manner prescribed under Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act. The attesting witnesses are only to be examined for the purposes of proving the Will. The Will was said to be executed on 22.02.1991. It is the settled position of law that a Will is to be proved in the manner prescribed under Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act. The attesting witnesses are only to be examined for the purposes of proving the Will. The Will was said to be executed on 22.02.1991. Till the time of the recording of the evidence, almost every such person, who was shown to be present at the time of execution of the Will, has either died or left the area. Only one attesting witness Barelal was available, who was examined as witness for proving this Will. He filed his affidavit under Order 18 Rule 4 of the Code of Civil Procedure making statement on oath with respect to the execution of the Will. In paragraph 2 of his affidavit he has categorically said that the appellant was not the daughter of Janku out of the wedlock of Ujiyari. He categorically said that Pooran was son of Janku and the respondent No.2 was grandson of Janku. He further categorically said that one Parmanand Sahu has written the Will of said Janku in his presence as told and narrated by Janku and after writing, he read over the same to Janku. The fact was explained to him that after the death of Janku entire property belonging to Janku will go to his grandson, namely the respondent No.2. He further categorically said that after fully understanding what was written in the Will, said Janku put his thumb impression and asked the said witness to sign the Will as a witness. He further categorically stated that Janku has put his thumb impression in the marked portion and he himself identified his signatures on the said document. This witness was exhaustively cross-examined by the Counsel of appellant but not a single word could be brought on record to show that the Will was not written in his presence or that it was not executed in his presence. From the entire evidence of this attesting witness of Will, the said document Exhibit D-2 is found to be proved. This being so, the contention raised by learned Counsel for the appellant that Will was not duly proved and, therefore, no reliance was to be placed on the said Will, cannot be accepted. 8. From the entire evidence of this attesting witness of Will, the said document Exhibit D-2 is found to be proved. This being so, the contention raised by learned Counsel for the appellant that Will was not duly proved and, therefore, no reliance was to be placed on the said Will, cannot be accepted. 8. Learned Counsel for the appellant tried to show that there were rounds of litigation in this respect but on earlier occasions the Will was not brought on record and, therefore, the Will is a suspicious document on the basis of which the claim made by the appellant cannot be denied. Such a submission of learned Counsel for the appellant cannot be accepted in view of the fact that the will is proved only in the manner indicated in law and since it has been proved accordingly, it cannot be doubted. In view of this, no error is found in concurrent findings of two Courts below in respect of rejection of the claim of the appellant on the strength of the Will, Exhibit D-2. 9. No substantial question of law arises for consideration in this appeal, which fails and is hereby dismissed.