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2013 DIGILAW 508 (PAT)

Krishna Singh v. Dipa Kuer

2013-04-16

MUNGESHWAR SAHOO

body2013
MUNGESHWAR SAHOO, J.:–The original plaintiff Jato Singh had filed this first appeal against the impugned judgment and decree dated 4.1.1974 passed by 1st Additional District Judge, Gaya in Title Suit No.1 of 1973/ 15 of 1973-D.J. 2. The original appellant Jato Singh had filed an application for the grant of letters of administration annexing certified copy of the registered will. The appellant’s case in short was that Matukdhari Singh father of the plaintiff appellant, Jaldhari Singh, Guro Singh and Dhanukhdhari Singh were the four brothers, who were separated from each other in status. However, their property was joint. Jaldhari Singh and Guro Singh were unmarried. Mukutdhari Singh died leaving behind the plaintiff appellant. Dhanukhdhari Singh died leaving behind his two daughters who are the defendants. Since the plaintiff was the only male child in the family, all the four brothers were loving him much and the three brothers Jaldhari Singh, Guro Singh and Dhanukhdhari Singh jointly bequeathed their entire shares in all the joint properties to the plaintiff under registered deed of will dated 11.6.1941. However, Dhanukhdhari Singh subsequently, during his life time gifted his four ana share in the joint properties in favour of his two daughters. Therefore, the will remain operative only with respect to 8 ana share of two testators Jaldhari Singh and Guro Singh. Jaldhari Singh died in the year 1952 and Guro Sing died in the year 1959. On the death of the two testators the will came in possession of Dhanukhdhari Singh who was acting against the interest of the plaintiff so plaintiff filed Partition Suit No. 16 of 1960. Since the will was in possession of Dhanukhdhari Singh, the plaintiff could not file the same. 3. The defendants filed contesting written statement therefore, the probate proceeding was converted to a title suit. According to the defendants i.e. the daughters of Dhanukhdhari Singh the will was not executed validly and not attested according to law. The two unmarried testators i.e. Jaldhari Singh and Guro Singh could not be married because of ill reputation and likewise the plaintiff also could not be married. The father-in-law and cousin-in-law of the plaintiff represented that unless a document is executed of the joint properties they will not allow the plaintiff to be married and accordingly on the pressure the will was executed and then the plaintiff was married. The father-in-law and cousin-in-law of the plaintiff represented that unless a document is executed of the joint properties they will not allow the plaintiff to be married and accordingly on the pressure the will was executed and then the plaintiff was married. Therefore, the will is not the act of free will but it has been executed under the duress and undue influence. Accordingly, the plaintiff is not entitled to grant of letters of administration. 4. On the basis of the aforesaid pleadings of the parties, the trial court framed the following issues :– “(1) Is the application for grant of letter of Administration in accordance with law? (2) Is the will propounded by the plaintiff genuine and valid? (3) Was the will executed by the free will of the executant and with intent to given effect to? (4) Whether the will is still subsisting or has been revoked? (5) Had the plaintiff not denounced the will and acted as if there was no will? (6) To what relief or reliefs the plaintiff entitled?” 5. After trial the learned court below recorded the finding that the will is proved to have been revoked vided paragraph 13 and accordingly dismissed the application filed by the plaintiff. 6. The learned senior counsel Mr. Ramakant Sharma appearing on behalf of the appellants submitted that all the other findings on other issues are in favour of the plaintiff therefore, the appellant is aggrieved by the finding about revocation of the will by only Dhanukhdhari Singh. The learned counsel submitted that it is the case of the plaintiff that the four brothers were separated but they executed a registered will jointly which is not unknown to the law. The trial court proceeded to decide the question about revocation by Dhanukhdhari Singh assuming that on the death of the two testators the property will devolve on Dhanukhdhari Singh because he was brother and the plaintiff was the brother’s son as such Dhanukhdhari Singh had the right to revoke the joint will. Although there is nothing in the gift deed executed by Dhanukhdhari Singh, the court below has wrongly assumed that by execution of gift deed in favour of his two daughters the will was revoked by Dhanukhdhari Singh. According to the learned counsel the lower court has not properly appreciated the fact of the case and law. Although there is nothing in the gift deed executed by Dhanukhdhari Singh, the court below has wrongly assumed that by execution of gift deed in favour of his two daughters the will was revoked by Dhanukhdhari Singh. According to the learned counsel the lower court has not properly appreciated the fact of the case and law. The learned counsel submitted that since all the brothers were separated, they were tenants in common. Prior to their death Jaldhari Singh and Guro Singh had executed a will with respect to their share in the property. Therefore, they did not die intestate. In such circumstances, how Dhanukhdhari could have revoked that part of the will which is operative regarding the two testators. On these grounds, the learned counsel submitted that the impugned judgment and decree are liable to be set aside and the plaintiff’s application for letters of administration be allowed. 7. As stated above, nobody appeared on behalf of the respondents. 8. In view of the above submission of the learned counsel for the appellants and the findings recorded by the trial court the point arises for consideration in this case is, as to whether the joint will executed by Jaldhari Singh, Guro Singh and Dhanukhdhari Singh was revoked by Dhanukhdhari Singh on the death of the two joint testators and whether the impugned judgment and decree is sustainable in the eye of law? 9. It may be mentioned here that during the pendency of appeal the original plaintiff had died. The defence of the defendant respondent is that the will is not validly executed and attested according to law and it is tainted with undue influence and duress. From perusal of the pleading i.e. the application filed by the appellant it appears that the appellant had clearly mentioned that the four brothers were separated. So far this pleading mentioned in paragraph 2 to the effect that “the aforesaid four brothers separated from one another in status though kept their immovable properties joint” was neither controverted nor denied by the defendants respondents in their written statement. Therefore, admittedly the four brothers had separated from each other. In other words, there was no coparcenary family or joint family, the brothers were living as tenants in common. 10. To prove the valid execution and attestation of the will the plaintiff had examined PW 1 and PW 3 who are the attesting witness. Therefore, admittedly the four brothers had separated from each other. In other words, there was no coparcenary family or joint family, the brothers were living as tenants in common. 10. To prove the valid execution and attestation of the will the plaintiff had examined PW 1 and PW 3 who are the attesting witness. From perusal of the evidence of these witnesses it is clear that their evidence is in terms of Section 63(c) of the Indian Succession Act read with Section 68 of the Indian Evidence Act. Admittedly the original will has not been produced. The plaintiff’s case is that the original will was in possession of Dhanukhdhari after death of the two other testators. This fact has not been denied by the defendants. Moreover the only defence is that the will was obtained by undue influence and duress said to have been exercised by the father-in-law and cousin-in-law of the plaintiff. So far this defence about exercise of undue influence is concerned, it may be mentioned here that the will was executed on 11.6.1941. According to the plaintiff Jaldhari Singh died in 1952, Guro Singh died in 1959 and Dhanukhdhari Singh was alive after Guro Singh but during this long period the testators did not revoke or set aside. Since the two testators died much after the execution of the will, they could have revoked the said will but they did not do so. After such a long period the defendants cannot be allowed to say that it was obtained by undue influence. 11. From perusal of the impugned judgment it appears that the trial court heavily relied upon the gift deed executed by Dhanukhdhari in favour of his two daughters and held that on the execution of this gift deed the will was automatically revoked. In view of the above, the main question arises for consideration is, as to whether the joint will executed by Jaldhari Singh, Guro Singh and Dhanukhdhari Singh who were separated from each other could have been revoked by Dhanshdhari only on the death of two other testators. It is admitted fact that Dhanukhdhari Singh had executed a registered gift deed Ext.-A with respect to only his 1/4th share in the property. 12. So far the right to revocation is concerned, a division bench of this Court in the case of Rajeshwar Misser and others Vs. It is admitted fact that Dhanukhdhari Singh had executed a registered gift deed Ext.-A with respect to only his 1/4th share in the property. 12. So far the right to revocation is concerned, a division bench of this Court in the case of Rajeshwar Misser and others Vs. Sukhdeo Missir AIR (34) 1947 Patna 449 considering the will executed by husband and wife held at paragraph 4 as follows:– The next point is whether, in fact, this is a will, and this is the point on which the main contention in the appeal has been rested. The first unusual feature about the document is that it is executed by two persons. A joint will, however, is not unknown to the law. L.R. (1898) P.7 is a case in which a joint will was made by a husband and wife. It as divisible into three parts. The first part was the will of the husband in case the wife should survive him, the second was the will of the wife in case her husband survived her, and the third of both of them to come into operation when they were both dead. The Court granted probate of so much of the instrument as became operative upon the death of the wife. In L.R. (1872) 4 P. C. 236, the Court construed a mutual will made by a husband and wife as separable, the disposition of each spouse being treated as applicable to his or her share of the joint property, and held that each spouse was at liberty to revoke his or her part of the will during the co-testator’s lifetime, with or without communication with the co-testator, or after the co-testator’s death. Nearer home, probate was allowed of a joint will by a husband and wife by the Bombay High Court in 45 Bom. 987.” 13. In the aforesaid decision, it has been held that each spouse has at liberty to revoke his or her part of the will. The same analogy will apply in the present case. In other orders the co-testators Jaldhari and Guro Singh had the right to revoke their part of the will. 14. The Hon’ble Supreme Court in the case of Kochu Govindan Kaimal and others Vs. The same analogy will apply in the present case. In other orders the co-testators Jaldhari and Guro Singh had the right to revoke their part of the will. 14. The Hon’ble Supreme Court in the case of Kochu Govindan Kaimal and others Vs. Thayankoot Thekkot Lakshmi Amma and others AIR 1959 SC 71 considered a joint will executed by tenants in common and held at paragraph 6 as follows :– “The sole point for determination in these appeals is whether under the will all the three testators became joint owners of all the properties on which it operated. After hearing the question fully argued, we have come to the conclusion that that is not the effect of the will, and that the judgment of the High Court contra cannot be supported. There were three executants of the will. Each of them possessed properties, which were his or her self-acquisitions. They also owned some properties which they had jointly acquired, but their title to such properties was as tenants-in-common and not as joint tenants. Each of them would have been entitled to execute a will of his or her properties and if that had been done, by the legatees named therein would undoubtedly have been entitled to those properties. In the present case the legatees who were intended to take were the same persons, and it was for that reason that the three testators instead of each executing a separate will jointly executed it. It is, nevertheless, a will by which each testator bequeathed properties belonging to him or to her, and therefore on the death of each testator, the legatees mentioned in the will would be entitled to the properties of the testator, who dies.” 15. In view of the above settled principles of law laid down by the Apex Court on the death of Jaldhari and Guro Singh the legatee mentioned in the will i.e. the plaintiff appellant would be entitled to the properties of the testators who dies. 16. So far the revocation of the will by burning is concerned, it is not pleaded in the written statement. In other words this is not the case of the defendants that the two executors had also revoked will by burning the same. It is settled law that if there is no pleading the evidence which has been produced which prejudice the other side the evidence cannot be considered. In other words this is not the case of the defendants that the two executors had also revoked will by burning the same. It is settled law that if there is no pleading the evidence which has been produced which prejudice the other side the evidence cannot be considered. Here there is no pleading as sated above but the defendants produced evidence to the effect that the will was revoked by burning. Therefore, that part of the evidence which is in variance of the pleading cannot be taken into consideration. 17. In view of my above discussion, in my opinion, the finding recorded by the court below that by executing of Ext.-A by Dhanukhdhari the will has been revoked is unsustainable in the eye of law. Dhaushdhari who was tenant in common with the co-testators could not have revoked that part of the will by which Jaldhari Singh and Guro Singh had bequeathed their properties in favour of the plaintiff appellant. Revocation if any by Dhanukhdhari will operate with respect to his share only. The finding of the learned trial court on this point is therefore, reversed. 18. In the result, this first appeal is allowed. The impugned judgment and decree are set aside. The plaintiffs’ application for grant of letters of administration is allowed. In the facts and circumstances of the case, no order as to costs.