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2013 DIGILAW 260 (CHH)

Chitrarekha v. Sitaram

2013-08-30

NAWAL KISHORE AGARWAL

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JUDGMENT Nawal Kishore Agarwal, J. 1. Being aggrieved by the judgment and decree dated 30.07.1998 passed in Civil Appeal No. 71-A of 1998 by the Additional District Judge, Balod, Dist. Durg reversing the judgment and decree dated 18.09.1997 passed in Civil Suit No. 42-A/1994 by the 1st Civil Judge, Class-1, Balod, District Durg, defendant No. 1/appellant has preferred this appeal. Ramadhin and Ramcharan were recorded Bhumiswami of 5.59 hectares of land situated in village Chirchari, Tahsil Gurur, District Durg. Upon an amicable partition between two brothers, 2.80 hectares fell in share of Ramadhin, who has been in possession thereof till his death on 05.12.1992. According to the appellant, Ramadhin was deaf and dumb since birth. 2. Upon death of Ramadhin on 05.12.1992, Sitaram (nephew of Ramadhin), the plaintiff claimed his estate under the will (Ex. P. 1) said to have been executed on 20.10.1992 re-written on the stamp paper on 16.11.1992, registered after his death at the instance of Sitaram on 18/19.08.1993. Chitrarekha, defendant No. 1, while denying the will, claimed herself as daughter of deceased - Ramadhin. The entry in Birth and Death register, 1966 (Ex. D. 6) records Chitrarekha having been born from Ramadhin on 24.05.1966. The certificate has been issued by the District Statistical Officer/District Registrar, Birth & Death, District Durg under the Registration of Births and Deaths Act, 1969 (hereinafter referred to as 'the Act of 1969'). Upon death of Ramadhin, there were mutation proceedings before the Revenue Court. By order dated 23.06.1993 (Ex. D. 4), the Tahsildar, Gurur, directed mutation of Chitrarekha negativing the will and accepting that Chitrarekha as daughter of Ramadhin, the deceased. The appeal preferred by respondent No. 1 was dismissed and revenue papers were corrected accordingly recording the name of Chitrarekha as Bhumiswami in possession of estate left behind by Ramadhin. Meanwhile, on 08.09.1994, Sitaram instituted a suit claiming declaration of his title upon suit-land (2.80 hectares described in schedule - B of the plaint) and injunction restraining Chitrarekha from interfering with his possession of the estate left behind by Ramadhin, on the basis of will (Ex. P. 1) asserting that Chitrarekha is not the daughter of Ramadhin, the deceased. 3. Vide judgment and decree dated 18.09.1997, the trial Court dismissed the claim observing that in absence of Khasra Number in will (Ex. P. 1), the will does not confer any right, title or interest upon Sitaram, the plaintiff. P. 1) asserting that Chitrarekha is not the daughter of Ramadhin, the deceased. 3. Vide judgment and decree dated 18.09.1997, the trial Court dismissed the claim observing that in absence of Khasra Number in will (Ex. P. 1), the will does not confer any right, title or interest upon Sitaram, the plaintiff. Furthermore, the will is suspicious and meaningless as the plaintiff has not proved possession over the suit land and that Chitrarekha is the daughter of Ramadhin. 4. In appeal by the plaintiff (Sitaram), the validity of will (Ex. P. 1) has been upheld, but omission of Khasra Number has been held inconsequential on further finding that the estate left behind by Ramadhin forms subject matter thereto and that Chitrarekha is not the daughter of Ramadhin. In consequence, while setting aside the decree, the appellate Court declared the plaintiff as Bhumiswami of the suit land directing delivery of possession to the plaintiff. Hence, this second appeal. 5. This Court on 28.8.1998 admitted the appeal on the following substantial questions of law: 1. Whether the lower appellate Court, on reversal of the finding of the trial Court, is correct in holding that defendant No. 1 is not the daughter of Ramadhin? 2. Whether the lower appellate Court farther erred in law on reversal of the finding of the trial Court that the will executed by Ramadhin in favour of the plaintiff Sitaram is valid? 6. Shri B.P. Gupta, learned counsel appearing for the appellant, by referring to statements of P.W. 1 Sitaram, P.W. 2 Brijlal, P.W. 3 Ganeshram, P.W. 4 Ramkumar Srivastava, D.W. 1 Chitrarekha and Ex. D. 6, the certified copy of entries in Birth and Death register maintained under the provisions of the Act of 1969, would submit: reversal finding of the lower appellate Court that the appellant/defendant No. 1 is not the daughter of Ramadhin and that the will executed by Ramadhin in favour of Sitaram is valid are perverse and are contrary to the evidence available on record. 7. On the other hand, Shri Viprasen Agrawal, learned counsel appearing for the respondent No. 1, supported the judgment and decree impugned passed by the lower appellate Court. 8. I have heard learned counsel for the parties and perused the records of both the Courts below including judgment and decree impugned. 9. 7. On the other hand, Shri Viprasen Agrawal, learned counsel appearing for the respondent No. 1, supported the judgment and decree impugned passed by the lower appellate Court. 8. I have heard learned counsel for the parties and perused the records of both the Courts below including judgment and decree impugned. 9. The appellant, in her statement, has categorically deposed, she is the daughter of Ramadhin from Sultana Bai, was born in her maternal uncle's home situated in village Bhengari. She has further deposed, after death of her father, she is in possession of the suit land. She had also filed certified copy of entries of Births and Deaths register (Ex. D. 6), maintained under the provisions of the Act of 1969, according to which, she was born on 24.05.1966 in village Bhengari and her father's name is Ramadhin. The appellant's above statement stands unrebutted. On the other hand, there is nothing in the statement of Sitaram as well as other witnesses examined by him to show that Chitrarekha is not the daughter of Ramadhin. 10. Certified copy of the entry in the birth register maintained by an official in discharge of his official duties is admissible under Section 35 of the Evidence Act, 1872 and it is not necessary to examine the official, who recorded it (please see Harpal Singh and another Vs. State of Himachal Pradesh (1981) 1 SCC 560 : AIR 1981 SC 361 ). Indisputably, Ex. D. 6 is a certified copy of the entry in the birth register maintained by an official in discharge of his official duties. The Supreme Court in the case of Rajindra Kumar Vs. Shri Chadra Narain Singh and others 2 (1970) 2 SCC 277 , has held, the entries from birth register are relevant under Section 35 of the Evidence Act in absence of any evidence to revert the presumption about the correctness of such entries. In the instant case, no cogent and clinching evidence has been adduced by the opposite party to rebut the presumption about the correctness of Ex. D. 6. In absence of any challenge to the authenticity of the certified copy of the entry in the birth register by leading cogent and clinching evidence, the judgment in the case of Satpal Singh Vs. D. 6. In absence of any challenge to the authenticity of the certified copy of the entry in the birth register by leading cogent and clinching evidence, the judgment in the case of Satpal Singh Vs. State of Haryana 2010 AIR SCW 4951, cited and relied upon by the respondent No. 1's counsel is of no help to him as the Supreme Court in the above case has also reiterated the same view. 11. In view of above, the lower appellate Court has reversed the finding of the trial Court without meeting the reasons and is certainly not correct in holding that appellant/defendant No. 1 is not the daughter of Ramadhin. Substantial question No. 1 framed is answered accordingly in favour of the appellant. 12. Coming to the next substantial question of law, Section 63 of the Indian Succession Act, 1925 (for short 'the Act of 1925') lays down the mode and manner of execution of an unprivileged Will. Section 68 of the Indian Evidence Act, 1872 (henceforth 'the Act of 1872') postulates the mode, manner and proof of execution of document, which is required by law to be attested. It in unequivocal terms states that execution of Will must be proved at least by one attesting witness, if an attesting witness is alive and subject the process of the court and capable of giving evidence. Will being a document has to be proved by primary evidence except when the Court permits a document to be proved by leading secondary evidence. 13. The burden of proof that the Will has been validly executed in terms of Section 63(c) of the Act of 1925 and is a genuine document is on the propounder. The propounder is further required to remove the suspicion by leading sufficient and cogent evidence, if there exists any. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document. 14. The Supreme Court, in the case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma & Others AIR 1959 SC 443 , has dealt with the subject regarding the mode of proof of will elaborately which has been consistently relied upon by the Supreme Court in its subsequent pronouncements including Ramachandra Rambux Vs. 14. The Supreme Court, in the case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma & Others AIR 1959 SC 443 , has dealt with the subject regarding the mode of proof of will elaborately which has been consistently relied upon by the Supreme Court in its subsequent pronouncements including Ramachandra Rambux Vs. Champabai and others AIR 1965 SC 354 and Smt. Jaswant Kaur Vs. Smt. Amrit Kaur and others AIR 1977 SC 74 . The Hon'ble Supreme Court, in the above cases, has summarized the position of law on the subject as under: 1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty. 2. Since section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by section 63 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the court and capable of giving evidence. 3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will. 4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator. 5. It is in connection with wills, the execution of which is surrounded by suspicious circumstance that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator. 6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter. 15. The Supreme Court, in the case of Lalitaben Jayantilal Popat Vs. Pragnaben Jamnadas Kataria and others (2008) 15 SCC 365 : 2009 AIR SCW 828, has substantially reiterated the same position of law as laid down by it in the case of H. Venkatachala Iyengar Vs. 15. The Supreme Court, in the case of Lalitaben Jayantilal Popat Vs. Pragnaben Jamnadas Kataria and others (2008) 15 SCC 365 : 2009 AIR SCW 828, has substantially reiterated the same position of law as laid down by it in the case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma & Others AIR 1959 SC 443 (supra), as under: ...........It is trite law that execution of a will must be held to have been proved not only when the statutory requirements for proving the will are satisfied but the will is also found to be ordinarily free from suspicious circumstances. When such evidences are brought on record, the court may take aid of the presumptive evidences also. 16. The Supreme Court, in the case of Lalitaben Jayantilal Popat Vs. Pragnaben Jamnadas Kataria & Ors. (2008) 15 SCC 365 : 2009 AIR SCW 828, has held in para-16: Section 68 of the Act of 1872 gives a concession to those who want to prove and establish a Will in a Court of law by examining at least one attesting witness even though Will has to be attested at least by two witnesses mandatorily under Section 63(c) of the Act of 1925. But what is significant and to be noted is that that one attesting witness examined should be in a position to prove the execution of a Will. To put in other words, if one attesting witness can prove execution of the Will in terms of Clause (c) of Section 63, viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, in his evidence, has to satisfy the attestation of a Will by him and the other attesting witness in order to prove there was due execution of the Will. 17. The Supreme Court, in the case of Bharpur Singh & Ors. Vs. Shamsher Singh 2009 AIR SCW 1338, has held in para-11 as under: 11. The legal principles in regard to proof of a will are no longer res integra. A will must be proved having regard to the provisions contained in clause (c) of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, in terms whereof the propounder of a will must prove its execution by examining one or more attesting witnesses. A will must be proved having regard to the provisions contained in clause (c) of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, in terms whereof the propounder of a will must prove its execution by examining one or more attesting witnesses. Where, however, the validity of the Will is challenged on the ground of fraud, coercion or undue influence, the burden of proof would be on the caveator. In a case where the Will is surrounded by suspicious circumstances, it would not be treated as the last testamentary disposition of the testator. 18. After reading carefully the evidence available on record, in my opinion, the will deed (Ex. P. 1) is not duly proved by the plaintiff in accordance with law and is also shrouded by well founded suspicious circumstances, some of them are: i. Plaintiff - Sitaram, i.e., the beneficiary, has taken active participation in execution of the will (please see statement of Sitaram). ii. Ramcharan, the father of beneficiary - Sitaram, also signed the will as attesting witness. iii. As per the plaintiff - Sitaram himself, Ramadhin was dumb and as per statement of P.W. 3 - Ganeshram, his hearing capacity was also weak . iv. Typed will was executed by late Ramadhin on 20.10.1992, then why the subsequent will was got executed from him by the plaintiff on 16.11.92. This fact has not been explained by the plaintiff. v. The plaintiff further failed to explain why the typed will was got registered by him after the death of Ramadhin when there is no such requirement in law. vi. As per the statement of attesting witness - Brijlal (P.W. 2), after discharge from Dhamtari Hospital, Ramadhin died 10-12 days after the execution of will deed, meaning thereby, at the time of execution of will, he was in the Hospital and was not in sound disposing state of mind. vii. As per the statement of Scribe - Ramkumar Srivastava (P.W. 4), he prepared and signed the will on 20th October, 1992 but the same was signed by Ramadhin and other witnesses on 21st October, 1992 whereas as per the will deed, the same was prepared and signed on 20th October, 1992. vii. As per the statement of Scribe - Ramkumar Srivastava (P.W. 4), he prepared and signed the will on 20th October, 1992 but the same was signed by Ramadhin and other witnesses on 21st October, 1992 whereas as per the will deed, the same was prepared and signed on 20th October, 1992. Therefore, the will has not been proved in accordance with the provisions contained in Section 63(c) of the Act of 1925 read with Section 68 of the Act of 1872. viii. As per plaintiff's statement, on 16.11.1992, he got the will prepared by Scribe - Subhash, who wrote the same in a Hotel, at that time, no one was present and he got the signatures on the will on the next date. Therefore, the will prepared on stamp paper was also not prepared in accordance with law and also was not executed by the testators on 16.11.1992, as mentioned in the will. ix. The details of the lands (Khasra Number etc.) were not mentioned in the will. x. A bare reading of will deed (Ex. P. 1) would reveal, there is no thumb impression of Ramadhin beneath the page - 1. Page - 2 was written on the back of the stamp paper, which was purchased on 13.11.1992. Only one attesting witness was examined, who has not proved the signature of other attesting witnesses. Execution of a will by a person, who is neither able to speak nor hear properly and illiterate and was also ill at the time of execution of the will cannot be believed and is certainly shrouded with well founded suspicious circumstances. 19. In view of above, the execution of will was not duly proved by the plaintiff and is also shrouded by several well founded suspicious circumstances. The lower appellate Court, therefore, without meeting the reasons assigned by the trial Court and without looking into the above mentioned suspicious circumstances, has certainly erred in law by reversing the finding of the trial Court and in holding that the will deed is valid. Substantial question No. 2 is also answered accordingly in favour of the appellant. 20. In second appeal, interference with the findings of fact is permissible, when material or relevant evidence is not considered, which if considered, would have led to opposite conclusion. Similarly, in the case of Rohini Prasad and others Vs. Substantial question No. 2 is also answered accordingly in favour of the appellant. 20. In second appeal, interference with the findings of fact is permissible, when material or relevant evidence is not considered, which if considered, would have led to opposite conclusion. Similarly, in the case of Rohini Prasad and others Vs. Kasturichand and another 2000 (3) SCC 668 , it was pointed out that where misreading of evidence by the appellate Court would lead to miscarriage of justice or its finding is based on no evidence and thus, perverse, the High Court would be justified in interfering in second appeal. When the facts of the case are examined in the light of above legal preposition, the judgment, and decree passed by the lower appellate Court is certainly not sustainable. 21. For the reasons mentioned herein above, the appeal is allowed. The judgment and decree impugned of the first appellate Court is set aside and the decree passed by the trial Court is restored. 22. No order as to costs. A decree be drawn accordingly.