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Madhya Pradesh High Court · body

2013 DIGILAW 442 (MP)

Sushila Yadav (Smt. ) v. Yadvendra Singh Yadav

2013-04-02

M.K.MUDGAL

body2013
JUDGMENT : Mudgal. J. – The appellants have filed this appeal under Section 299 of the Indian Succession Act being aggrieved by the order dated 6.9.2000 passed by V Additional District Judge, Gwalior in Probate Case No.15-A/1999 (Old Case No.33/1996) rejecting the probate application filed by the appellants under Section 276 of the Act and holding that the alleged 'will' has not been properly proved. In this appeal, the appellants are referred to as "applicants" and respondents as 'objectors'. 2. The admitted facts have come on record that Tejram who was an officer in the telephone department was the husband of the deceased Phoolwati who had three sons Vimlendra Singh, Yadvendra Singh and Raghvendra Singh. The appellants/applicants are the legal heirs of the deceased Vimlendra. The disputed plot was purchased during life time of Tej Ram in the name of his wife Phoolwati and a house was constructed on it. Phoolwati was housewife and has no independent source of income. 3. The facts, in brief, of the probate application are that the deceased Phoolwati during her life time executed a notarized 'will' in favour of the applicants pertaining to the house of her ownership situated at M-1 Gandhinagar Gwalior bearing House No.22/447 (New No.26/422) on 1.10.1995 and it being her only and last will. The applicants are entitled to get probate certificate (letter of administration) in their favour. Smt. Phoolwati died on 20.10.1995, hence, the probate application was filed before the Court below as stated earlier. 4. Objector Yadvendra Singh Yadav, son of the deceased Phoolwati denying the averments of the said application, claimed that on 1.10.1995 deceased Phoolwati had not executed any will in favour of the applicants and she executed the wills on 8.6.1993 and 7.7.1990 and without getting those wills canceled or making mention about the earlier wills, the will dated 1.10.1995 was got executed illegally. The objector further alleged that the will dated 1.10.1995 is a fake and fabricated document. He claimed that initially, the plot was purchased by his father in the name of his mother who was having no independent source of income. The alleged will dated 1.10.1995 was got executed by the applicants fabricatedly in their favour as his mother was not at all in a position to execute any such document being ill, she was in the state of unconsciousness. The alleged will dated 1.10.1995 was got executed by the applicants fabricatedly in their favour as his mother was not at all in a position to execute any such document being ill, she was in the state of unconsciousness. Hence, the probate application filed by the applicants on the basis of the said will is liable to be rejected. 5. The learned trial Court framed the four issues and recording evidence of both the parties and having considered the recorded evidence, rejected the application for probate filed by the applicants holding that the applicants have failed to prove that the 'will' dated 1.10.1995 was executed by deceased/ Phoolwati in their favour. 6. The following issues that arise for consideration in this appeal are that: (I) Whether, the alleged will dated 1.10.1995 was executed by Phoolwati voluntarily or at the behest of the applicants? (ii) Whether, the findings of the court below are not based on proper reasonings? 7. Learned counsel for the appellants submitted that the findings of the trial are not based on proper appreciation of the evidence as the alleged will Ex.P-3 has been proved by the attesting witnesses Dr. K.S.Tomar (PW-4) and Bharat Singh Bhadoria (PW-5). However, the statements of the said witnesses have been disbelieved by the learned trial Court without any sufficient and cogent reasons. As per requirements of Section 68 of the Evidence Act and Section 63 of the Indian Succession Act, the execution of will should be proved by at least one attesting witness. The counsel further urged that the appellants have successfully proved the execution of the will Ex.P-3 even though the trial Court has found the will not proved. The counsel further put forth the argument that it was the case of probate wherein there was no need for inquiry into the title of the deceased Phoolwati to make the will. The findings given in this regard by the trial Court are totally without jurisdiction and the said findings have no significance. The counsel further pleaded that a few letters were written by Yadvendra Singh to his father Tejram in his life time. The said letters show incordial relationship between Yadvendra Singh and his father Tejram because of which the deceased Phoolwati executed the will Ex.P-3 in favour of the wife of deceased Vimlendra Singh and grandsons Ravi Yadav and Somendra Singh. The counsel further pleaded that a few letters were written by Yadvendra Singh to his father Tejram in his life time. The said letters show incordial relationship between Yadvendra Singh and his father Tejram because of which the deceased Phoolwati executed the will Ex.P-3 in favour of the wife of deceased Vimlendra Singh and grandsons Ravi Yadav and Somendra Singh. But the learned trial Court did not consider the aforesaid facts properly, therefore, the impugned judgment of the trial court be set aside and the probate be granted in favour of the appellants. 8. Controverting the submissions made by the appellants the learned counsel for the respondent urged that the findings of the learned trial court are well reasoned and based on proper appreciation of evidence. The counsel further pleaded that the alleged will Ex.P-3 is a fake and fabricated document as it has not been explained by the appellants that as by whom the Ex.P-3 was got typed and drafted. The statements of both the persons i.e. typist and drafter have not been got recorded and why they have been put behind the curtains. The counsel further submitted that it has come on record in the statement of (PW-1) Susheela, (PW-2) Ravi Yadav and (PW-3) Somendra Yadav that the deceased Phoolwati had a bank account and she used to sign for the transactions with the bank. Why has the deceased put the thumb impression on the Ex.P-3 when she was able to sign. The counsel further alleged that the presence of both the witnesses is also suspicious as they are neither relatives of the deceased nor her neighbors. Further there is no mention in Will Ex.P-3 as to who read over it to the deceased Phoolwati before getting her thumb impression on it. Further, the statement of the notary who notarized the will Ex.P-3 has not been got recorded for testifying the fact that the deceased Phoolwati had executed the will in his presence. All the aforesaid suspicious circumstances have not been properly clarified by the applicants and therefore the learned trial Court has not committed any error in discarding the will Ex.P-3 and rejecting the application for the grant of probate. 9. To bolster his submissions, the learned counsel cited the following judgments. "G.Sekar Vs. Geetha and Others 2009 (4) MPLJ 112, Vimal Mishra Vs. Krishna Gopal Sharma 2009 (3) MPLJ 246 , Than Singh Vs. 9. To bolster his submissions, the learned counsel cited the following judgments. "G.Sekar Vs. Geetha and Others 2009 (4) MPLJ 112, Vimal Mishra Vs. Krishna Gopal Sharma 2009 (3) MPLJ 246 , Than Singh Vs. - Majboot Singh and Others 2010 (3) MPLJ 379 and Balathandayutham and Another Vs. Ezhilarasan 2010 (3) MPLJ 497". 10. Heard, the argument and perused the record. Before adverting to the recorded evidence, the application under Order 41 Rule 27 of the Code of Civil Procedure filed by the appellants (I.A.No.1761/2008) is being considered. The applicants have filed the said application for taking a few letters on record which were written by Yadvendra Singh (the son of the deceased Phoolwati) to his father during his life time. In connection with the letters, the statements of Ravi Yadav on 16.03.2009, Yogendra Singh Yadav on 04.02.2008, Somendra Singh Yadav on 4.02.2008, Ravi Yadav on 07.05.2009 were recorded before the trial Court. Hence the said application is allowed and the letters are taken on record. 11. What should be the mode of proof of execution of a will, has been laid down by the Hon'ble Apex Court in Janki Narayan Bhoi Vs. Narayan Namdeo Kadam 2003 AIR SCW 177. While dealing with the question elaborately, the Apex Court has held in paras 8,9 and 10 as under: • "8. 11. What should be the mode of proof of execution of a will, has been laid down by the Hon'ble Apex Court in Janki Narayan Bhoi Vs. Narayan Namdeo Kadam 2003 AIR SCW 177. While dealing with the question elaborately, the Apex Court has held in paras 8,9 and 10 as under: • "8. To say a will has been duly executed the requirements mentioned in clauses (a), (b) and (c) of Section 63 of the Succession Act are to be complied with i.e. (a) the testator has to sign or affix his mark to the will, or it has got to be signed by some other person in his presence and by his direction; (b) that the signature or mark of the testator, or the signature of the person signing at his direction, has to appear at a place from which it could appear that by that mark or signature the document is intended to have effect as a will; (c) the most important point with which we are presently concerned in this appeal, is that the will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the will, or must have seen some other person sign the will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgement of signature or mark, or of the signature of such other person, and each of the witnesses, has to sign the will in the presence of the testator. 9. It is thus clear that one of the requirements of due execution of a will is its attestation by two or more witnesses, which is mandatory. 10. Section 68 of the Evidence Act speaks of as to how a document required by law to be attested can be proved. According to the said section, a document required by law to be attested shall not be used as evidence until 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. According to the said section, a document required by law to be attested shall not be used as evidence until 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. It flows from this section that if there be an attesting witness alive capable of giving evidence and subject to the process of the court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the will has got to prove that the will was duly and validly executed. That cannot be done by simply proving that the signature on the will was that of the testator but must also prove that attestations were also made properly as required by clause (c) of Section 63 of the Succession Act. It is true that Section 68 of the Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the will as envisaged in Section 63. Although Section 63 of the Succession Act requires that a will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the court. In a way, Section 68 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 the will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that one attesting witness examined should be in a position to prove the execution of a will. But what is significant and to be noted is 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 the 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. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the will by the other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution of the will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act". (emphasis supplied) Keeping in view the aforesaid proposition of law, alleged wills Ex.P/3 has to be examined whether or not the said will has been proved? 12. In Niranjan Umeshchandra Joshi Vs. Mrudula Jyoti Rao and Others (2006) 13 SCC 433 the Hon'ble Apex Court has held that the burden of proof that the will has been validly executed and is a genuine document is on the propounder. Para 33 of the judgment is as follows: "33. The burden of proof that the will has been validly executed and is a genuine document is on the propounder. Para 33 of the judgment is as follows: "33. The burden of proof that the will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect ' thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. (See Madhukar D. Shende v. Tarabai Aba Shedagel and Sridevi v. Jayaraja Shetty). Subject to above, proof of a will does not ordinarily differ from that of proving any other document". 13. The alleged unregistered typed Will is Ex.P-3 which runs into six pages. On perusal of the contents of it, it is evident that the language written in it appears to be legal, which indicates that it might have been drafted by a law-knowing person but the name of the drafter has not been mentioned in it. Further, the name of the typist is also not mentioned in it. Why their names were omitted is not clear and no explanation in this regard has been given by the appellants who are beneficiaries of the will Ex.P/3. Over and above the facts and circumstances which create suspicion, prima facie ought to have been explained by the applicants. The Hon'ble Supreme Court has held in paras 11 and 12 of the judgment Balathandayuham and Another Vs. Ezhilarasan 2010 (3) MPLJ 497: "11. Over and above the facts and circumstances which create suspicion, prima facie ought to have been explained by the applicants. The Hon'ble Supreme Court has held in paras 11 and 12 of the judgment Balathandayuham and Another Vs. Ezhilarasan 2010 (3) MPLJ 497: "11. Insofar as execution of the will is concerned, under section 63 of the Indian Succession Act, 1925 it has to 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. Section 68 of the Indian Evidence Act, 1872 further provides if a document is required by law to be attested, it shall not be used as evidence until 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 is capable of giving evidence. There is a proviso under section 68 but we are not concerned with the proviso here. 12. Commenting on these provisions, this court in H. Venkatachala (supra) laid down that section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. It was further held that section 63 of the Indian Succession Act 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 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. 14. The witness Susheela Yadav (PW1) in para 4, Ravi Yadav (PW2) in para 2 and Somendra Singh Yadav (PW3) in para 2 have deposed in their statements that the will Ex.P-3 was executed by Phoolwati in their favour in respect of the disputed house, however, the statements of said witnesses carry ho significance for the execution of the will Ex.P/3 as (PW1) in para 9 and 10, (PW2) in para 6 and (PW3) in para 4 have stated that the will Ex.P/3 was not executed by Phoolwati in their presence and further expressed their ignorance about the execution of the will as to who typed it and by whom it was got prepared by Phoolwati. Therefore, no inference can be drawn from the statements of the said witnesses regarding the genuineness of the execution of the will Ex.P/3. 15. To prove the will Ex.P/3, the applicants have produced two witnesses Dr. KS.Tomar (PW4) and Bharat Singh Bahdoria (PW5). In para 2,3 and 4 of his statement Dr. K.S.Tomar (PW4) has deposed that Phoolwati executed the will Ex.P/3 in his presence and put her thumb impression on it as "A to A" and he and Bharat Singh (PW5) signed the will Ex.P/3 as attesting witnesses and his signature is stated to be "B to B". Similarly, Bharat Singh (PW5) has deposed in para 2 and 3 of his statement that the Phoolwati put her thumb impression on it and he signed the will Ex.P/3 as attesting witness as "C to C". Similarly, Bharat Singh (PW5) has deposed in para 2 and 3 of his statement that the Phoolwati put her thumb impression on it and he signed the will Ex.P/3 as attesting witness as "C to C". Further, it has come on the record from the statements of the witnesses that Ex.P/3 was executed by Phoolwati at her residence at Gandhi Nagar, Gwalior i.e. the disputed house. The witness Dr. KS.Tomar is a resident of Azad Nagar, Morar and whose house is nearly 5 to 7 Kms away from the Phoolwati's residence as stated by (PW4) in para 6 of his statement. (PW4) has further stated in para 8 of his statement that he has reached Phoolwati's house on receiving a telephone call but he does not know who had given him that call. This casts a shadow of suspicion on his statement. 16. Other witnesses Bharat Singh Bhadoria (PW5) is a resident of Bhaskar Lane, Jayendra Ganj, Lashker, whose house is also nearly 3 Kms away from the residence of Phoolwati. It can be safely inferred here that both the witnesses are not Phoolwati's neighbours. Besides both the witnesses have further deposed in their statements that they are not Phoolwati's relatives. In para 7 and 8 of the statement of Dr. K.S.Tomar (PW4), it has been stated by him that he does not know as to who has typed it and drafted the will and as to by whom the will was got prepared. He further expressed his ignorance about the person who has called the Notary and Advocate. He further admitted the fact that when he reached Phoolwati's residence, the said will was already prepared and Bharat Singh Bhadoria (PW5) and the Notary were present there. Similar statement has been given by Bharat Singh Bhadoira (PW5) in para 4 of his statement. Thus, it cannot be inferred here on the basis of the statements of the said witnesses that the will Ex.P/3 was prepared at the behest of the deceased Phoolwati. To prove the contents of the will Ex.P.3, it was necessary to have got the statements of typist and drafter recorded by the applicants but it was not done so. Therefore, it cannot be concluded that the will Ex.P/3 was got prepared by Phoolwati. 17. Admittedly, Phoolwati was an illiterate woman as her thumb impression on Ex.P/3 shows. To prove the contents of the will Ex.P.3, it was necessary to have got the statements of typist and drafter recorded by the applicants but it was not done so. Therefore, it cannot be concluded that the will Ex.P/3 was got prepared by Phoolwati. 17. Admittedly, Phoolwati was an illiterate woman as her thumb impression on Ex.P/3 shows. Surprisingly that had she been illiterate, how she would have got the 6 pages will Ex.P/3 drafted in legal form. All these said circumstances could have been well explained only by the Typist and drafter but they were kept behind the curtains. The said circumstances raises a question on the genuineness of the will Ex.P/3 as held in Ramnarayan Tiwari and Others Vs. Umashankar Pacholi and Another ILR 2013 (MP) 858 in para 13 which reads as under: "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....". 18. Further more, it comes to notice that the concealment of the names of the typist and the drafter reveals that there must have been an apprehension lurking in their minds that if in any case, the said will Ex.P/3 is found to be fake and forged, they might be entangled in the criminal offence, on account of this fear, they suppressed their identity. The same situation is with the applicants who have abstained themselves at the time of execution of the said will, otherwise, there was no reason while Phoolwati was executing the said will in the same house where Susheela (PW1) was also residing along with her children, why Susheela was ignorant of the execution of the will and further Phoolwati kept the execution of the will Ex.P/1 a secret from the beneficiaries of the will. These circumstances, too do raises the question on the will being genuine. 19. On the last page of the will Ex.P/3, i.e. page no.6 names and addresses of the attesting witnesses have been hand written and it shows that when the will Ex.P/3 was typed, the names of the witnesses were probably not in existence. If they had been in existence earlier, their names would have been typed definitely. Besides, in the will Ex.P/3 dated 1.10.1995 was not typed rather it was handwritten. On the last page of the Ex.P/3, thumb impression of the deceased Phoolwati has been shown. Though both the attesting witnesses have stated in their statements that the said thumb impression was put by Phoolwati in their presence, yet Dr. K.S.Tomar (PW4) in para 8 of his statement deposed that he did not know by whom " fu'kkuh v¡xwBk Qwyorh " near the thumb impression of Phoolwati was written. These circumstances lead to the conclusion that the thumb impression of Phoolwati was not put before this witness, otherwise, it would have been in his knowledge as to who had written this. The similar is the case with (PW5) because, he too deposed in para 4 of his statement that by whom the cross mark on the thumb impression was put he is not aware of. This witness has not clarified by whom " fu'kkuh v¡xwBk " was written. 20. Further, it comes to the notice that it has not been mentioned anywhere that the will was read over to Phoolwati by anyone before whom, the thumb impression was put on Ex.P/3. Bharat Singh Bhadoria (PW5) deposing in para 6 of his statement has stated that the will was read over to Phoolwati by Dr.K.S.Tomar but the said statement is totally false as Dr.K.S.Tomar has not said in his statement that the said will was read over to Phoolwati by him. Bharat Singh Bhadoria (PW5) deposing in para 6 of his statement has stated that the will was read over to Phoolwati by Dr.K.S.Tomar but the said statement is totally false as Dr.K.S.Tomar has not said in his statement that the said will was read over to Phoolwati by him. Apart from it, there is no endorsement to the fact that Dr..K.S.Tomar read over the will to Phoolwati. To prove the execution of the will beyond suspicion, statement of the Notary was indispensable in this case, but his statement was not got recorded by the applicants and in this regard, no justifiable explanation has been tendered as to why he was not produced. 21. Ravi Yadav (PW2) has deposed in para 3 of his statement that his grandmother Phoolwati had a bank account and he used to take her to the bank and stated that she used to sign. This fact is also admitted by Susheela (PW1) in para 8 of her statement. This fact also raises a question when Phoolwati was able to sign then why she put her thumb impression on Ex.P/3. These circumstances too make the will suspicious and incredible. 22. The letters "A/1 to A/6" produced by the appellants have no substance in this case as the said letters were written by Yadvendra Singh to his father Tejram in his lifetime. The letters indicate that there were some differences between them. Nevertheless, on the basis of the said letters, it can neither be inferred that the will Ex.P/3 was executed by Phoolwati nor do they corroborate the execution of the will Ex.P/3. 23. Considering the aforesaid facts and circumstances of this case, this Court affirming the findings of learned trial Court, arrives at the conclusion that the applicants have utterly failed to prove the execution of the will Ex.P/3 by Phoolwati in their favour. However, the findings of the learned trial court regarding title of the disputed house are hereby set-aside as the trial court had no jurisdiction to exercise the power in deciding the question of title in the proceeding of probate. 24. Having taken into account the recorded evidence, no flaw has been found in findings rendered by the trial Court regarding execution of the will. Therefore, no interference, is required in the impugned order. Hence, the appeal having no substance and merit is hereby dismissed, setting aside the title findings. 25. 24. Having taken into account the recorded evidence, no flaw has been found in findings rendered by the trial Court regarding execution of the will. Therefore, no interference, is required in the impugned order. Hence, the appeal having no substance and merit is hereby dismissed, setting aside the title findings. 25. Cost of the appeal shall be borne by the appellants to the respondent.