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2013 DIGILAW 25 (CHH)

Rajni v. Basudev Narayan Singh

2013-01-10

T.P.SHARMA

body2013
JUDGMENT 1. This second appeal under Section 100 of the Code of Civil Procedure, 1908, filed against judgment & decree dated 14-8-97 passed by the Additional District Judge, Manendragarh in Civil Appeal No.18A/95, affirming judgment & decree dated 31-7-95 passed by the Civil Judge Class-II, Manendragarh in Civil Suit No.3A/94, whereby the trial Court has dismissed the civil suit for declaration of title and permanent injunction, has been admitted for consideration on the following substantial questions of law:- (1) Whether the finding recorded by the Court below that the appellant was mistress of Navrang Singh; is perverse, as it is based on material which is not germane to decision of that fact? (2) Whether the respondent No.1 has proved the execution of will dated 4-8-85, Ex.D-1, in accordance with law? (3) Whether the document, Ex.D-1 has been proved beyond all reasonable suspicion, to be the will of Nawrang Singh Gond, in favour of the respondent No.1? 2. As per plaint allegations, the appellant herein, legally wedded wife of Navrang, has inherited the property left by her husband Navrang, but respondent No.1 - relative of Navrang, has succeeded in mutation of his name in the revenue record on the basis of forged will dated 4-8-85, therefore, suit for declaration and permanent injunction was filed by the plaintiff/appellant. 3. By filing written statement, respondent No.1 has denied the allegations made in the plaint and has specifically alleged that the appellant was keep/mistress of deceased Navrang Singh, she was not member of Raj Gond and member of Singraulia Gond. Navrang Singh has executed will on 4-8-85 in favour of respondent No.1 and on the basis of aforesaid will which has been subsequently registered, respondent No.1 has mutated his name in the revenue record. 4. After providing opportunity of hearing to the parties, both the Courts below have held that the appellant was keep/mistress of Navrang Singh and, not legally wedded wife, and have held that respondent No.1 has proved due execution of will. On the basis of aforesaid finding, suit and appeal filed on behalf of the appellant/plaintiff have been dismissed. 5. I have heard learned counsel for the parties, perused both judgments & decrees and records of both the Courts below. 6. Learned counsel for the appellant submits that long residing together of the appellant with Navrang Singh has not been disputed, inter alia, admitted by respondent No.1. 5. I have heard learned counsel for the parties, perused both judgments & decrees and records of both the Courts below. 6. Learned counsel for the appellant submits that long residing together of the appellant with Navrang Singh has not been disputed, inter alia, admitted by respondent No.1. Respondent No.1 himself has deposed that after death of first wife, Navrang Singh has married the appellant which was sufficient for drawing inference that the appellant was legally wedded wife of Navrang Singh. In order to prove conscious and lawful execution of will, respondent No.1 was under obligation to prove valid attestation of will in terms of Section 63 of the Indian Succession Act, 1925. He has not examined any attesting witness of the will, though the appellant has examined attesting witnesses Dhaneshwar Singh (PW 2) & Ramcharan (PW 3) who have deposed that Navrang Singh has not executed any will. Undisputedly, they have been examined by the appellant, therefore, it would not be presumed that they will support the case of respondent No.1, but still respondent No.1 was having opportunity to prove due execution of will by examining other attesting witnesses Ramgopal Panch and Suryapratap Singh - Sarpanch, the 4th attesting witness of the will, who was alive during the course of trial, which has been admitted by defendant witness No.2 Jagnarayan (DW 2) in para 4 of his cross-examination. However, for the reasons best known to respondent No.1, he has failed to examine the attesting witnesses to prove valid execution of will. Evidence of Jagnarayan (DW 2) - scribe of the will, itself is not sufficient to prove valid attestation of will. Learned counsel further submits that undisputedly, the appellant was residing with deceased Navrang Singh. Navrang Singh died on 2-6-87, but respondent No.1 has not applied for registration of will just after death of deceased Navrang Singh and same has been registered on 16-12-88 after 1½ years that too not at Manendragarh where both the parties are residing, but at different Tahsil of the then District Surguja (Ambikapur) i.e. at Baikunthpur. This shows that the alleged will was not genuine and suspicious. Learned counsel placed reliance in the matter of S.R. Srinivasa and others Vs. This shows that the alleged will was not genuine and suspicious. Learned counsel placed reliance in the matter of S.R. Srinivasa and others Vs. S. Padmavathamma, (2010) 5 SCC 274 in which the Supreme Court has held that in absence of examination of attesting witnesses, only examination of scribe of will even who has not stated that he had not signed the will with intention to attest, attestation of will has not been proved. 7. On the other hand, learned counsel for respondents No.1.a to 1.g opposes the appeal and vehemently argues that concurrent finding of facts of both the Courts below is not required to be disturbed without cogent reason. Both the Courts below have concurrently held that respondent No.1 has proved due and conscious execution of will by Navrang Singh and the appellant was mistress of deceased Navrang Singh, not the legally wedded wife of Navrang Singh. Therefore, by dismissing suit and appeal, both the Courts below have not committed any illegality. Learned counsel further submits that the appellant was keep of Navrang Singh, same has been mentioned by Navrang Singh in Ex.D-1C and Ex.P-3. Although she was residing with Navrang Singh, but she was not having the status of legally wedded wife. Dhaneshwar Singh (PW 2) & Ramcharan (PW 3) have deposed that Navrang Singh has not executed the will, but they have admitted their signature over Ex.D-1C which shows that they are suppressing the truth. In aforesaid circumstances, evidence of Jagnarayan (DW 2) was sufficient to prove conscious and valid execution of will by Navrang Singh. 8. On the other hand, learned State counsel appearing on behalf of respondent No.2 opposed the appeal. 9. The will was required to be proved in accordance with Section 63 of the Indian Succession Act, 1925 which reads thus, "63. Execution of unprivileged wills.-Every testator, not being a soldier employed in an expedition nor 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 marks 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 acknowledgment 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. " 10. By examining herself, the appellant has deposed that she is legally weeded wife of Navrang Singh. She was suggested in paras 5 & 6 of her evidence by respondent No.1 that Navrang Singh has also executed will in her favour. In para 8 of her evidence, she has denied the fact that she was keep of Navrang Singh. Dhaneshwar Singh (PW 2) & Ramcharan (PW 3) have deposed that the appellant is legally wedded wife of Navrang Singh. 11. Respondent No.1 has examined himself and has deposed in para 1 of his evidence that after death of first wife, Navrang Singh has married the appellant herein and that is why he says that the appellant is keep of Navrang Singh. 12. Jagnarayan (DW 2) has admitted in para 8 of his evidence that Rajni Bai was residing with Navrang Singh since last 20-25 years. He has also admitted that after death of Navrang Singh, the plaintiff/appellant is cultivating the field left by Navrang Singh. 13. In the light of admission by respondent No.1 in para 1 of his evidence and evidence of long living together of the appellant with Navrang Singh admitted by Jagnarayan (DW 2), in absence of any other evidence, the only inference would be possible that the appellant was legally wedded wife of Navrang Singh and Navrang Singh had married her after death of his first wife. 14. 14. As regards genuineness of the will, two attesting witnesses whom the plaintiff has examined namely Dhaneshwar Singh (PW 2) & Ramcharan (PW 3) have not deposed about the due execution of will, but had admitted signature over the will Ex.D-1C which shows that they are suppressing the truth relating to execution of will. Defendant No.1 has examined himself and has deposed that Navrang Singh has executed will, but he has not deposed anything that at the time of will whether he was present or not. 15. Jagnarayan (DW 2) - scribe of the will, has deposed that at the instance of Navrang Singh, he has prepared the will and after reading the same, Navrang has signed over the will and other witnesses have also signed. He has further deposed that one counsel of Baikunthpur has also signed over the will and he has also signed over the will. However, he has not deposed whether Navrang Singh and witnesses have signed in his presence and he has signed in presence of Navrang Singh and other witnesses. In para 4, he has specifically admitted that another witness Suryapratap Singh is alive. 16. As per Ex.D-1, four witnesses namely Dhaneshwar Singh, Ramcharan, Ramgopal - Panch and Suryapratap Singh - Sarpanch, have attested the execution of will. Dhaneshwar Singh & Ramcharan have not supported the due execution of will. Respondent No.1 has not examined remaining attesting witnesses Ramgopal and Suryapratap Singh in order to prove due and valid execution of the will. Inter alia, it has been registered at Baikunthpur as Ex.P-3, another Tahsil and the then District of Surguja, after one and half years of such death of Navrang Singh, but not at Manendragarh where both the parties including deceased Navrang Singh, the appellant herein and respondent No.1 in whose favour the alleged will has been executed, were residing. 17. In the matter of S.R. Srinivasa, (2001) 7 SCC 503 (supra), the Supreme Court has held that in absence of any evidence of attesting witness, evidence of the scribe who has not stated that he had signed the will with the intention to attest, is not sufficient to satisfy the test of attestation of the will or his signature as animo attestandi. Paras 40 & 41 of the said judgment read thus, “40. In our opinion, the aforesaid test has not been satisfied by DW 2, the scribe. Paras 40 & 41 of the said judgment read thus, “40. In our opinion, the aforesaid test has not been satisfied by DW 2, the scribe. The situation herein is rather similar to the circumstances considered by this Court in N. Kamalam Vs. Ayyasami. Considering the effect of the signature of scribe on a will, this Court observed as follows: (SCC pp. 518-18, paras 26-27) "26. The effect of subscribing a signature on the part of the scribe cannot in our view be identified to be of the same status as that of the attesting witnesses.... 27. ... The animus to attest, thus, is not available, so far as the scribe is concerned: he is not a witness to the will but a mere writer of the will. The statutory requirement as noticed above cannot thus be transposed in favour of the writer, rather goes against the propounder since both the witnesses are named therein with detailed address and no attempt has been made to bring them or to produce them before the court so as to satisfy the judicial conscience. Presence of scribe and his signature appearing on the document does not by itself be taken to be the proof of due attestation unless the situation is so expressed in the document itself-this is again, however, not the situation existing presently in the matter under consideration." 41. The aforesaid observations are fully applicable in this case. Admittedly, none of the attesting witnesses have been examined. Here, signature of the scribe cannot be taken as proof of attestation. Therefore, it becomes evident that the execution of a will can be held to have been proved when the statutory requirements for proving the will are satisfied. The High Court has however held that proof of the will was not necessary as the execution of the will has been admitted in the pleadings in as No.233 of 1998, and in the evidence of PW 18. In the present case, undisputedly, respondent No.1 has not examined attesting witnesses of the will. The scribe has not deposed that he has signed the will with intention to attest or that the executor or attesting witnesses have signed in his presence. Merely stating that the witnesses or executor have signed does not satisfy the requirement of Section 63 of the Indian Succession Act, 1925. 19. The scribe has not deposed that he has signed the will with intention to attest or that the executor or attesting witnesses have signed in his presence. Merely stating that the witnesses or executor have signed does not satisfy the requirement of Section 63 of the Indian Succession Act, 1925. 19. In case of will excluding the right of inheritance of natural heir, propounder of will is required to prove due and valid execution of will by testator, only the evidence of scribe without stating that he has signed the will with intention to attest the will, is not sufficient to satisfy the test of attestation of will or his signature as animo attestandi. 20. In the light of the evidence of appellant Rajni Bai (PW 1), para 1 of the evidence of respondent No.1 and para 8 of the evidence of defendant witness Jagnarayan (DW 2), both the Courts below ought to have held that the appellant was the legally wedded wife of deceased Navrang Singh and not the mistress. Both the Courts below further, ought to have held, in the light of aforesaid discussion and evidence, that due execution of will has not been proved beyond suspicion, but by arriving at a finding that the appellant was mistress of Navrang and the will has been proved, both the Courts below have committed illegality. 21. Consequently, substantial question of law No.1 is decided as positive and substantial questions of law No.2 & 3, both, are decided as negative. 22. On the basis of finding on the substantial questions of law formulated for the decision of this appeal, the appeal deserves to be allowed and is hereby allowed. Judgments & decrees of both the Courts below are hereby set aside. The suit filed on behalf of the appellant/plaintiff is hereby decreed in following terms:- (1) The appellant/plaintiff is declared the owner of suit property namely, Khasra No.521/2, area 4.047 hectares; Khasra No.521/4, area 0.809 hectare; Khasra No.767, area 1.291 hectares; and Khasra No.897, area 0.607 hectare, total area 6.607 hectares, situate at Village: Thaggaon, RI Circle: Khadgawan, the then Tahsil: Manendragarh. (2) Respondent No.1 is permanently restrained from interfering in the possession of the plaintiff over the suit property. 23. Parties shall bear the cost of appeal. 24. Advocate fees as per schedule. 25. Decree be drawn up accordingly. Appeal Allowed.