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2013 DIGILAW 843 (MP)

Mahila Ramshribai v. Mahila Indrabai

2013-07-23

M.K.MUDGAL

body2013
JUDGMENT : This first appeal under section 96 of the Code of Civil Procedure has been preferred by the appellant/plaintiff assailing the judgment and decree dated 31-1-2007 passed by the learned IX Additional District Judge Gwalior (Fast Track Court) (Shri K. K. Sharma) in Civil Suit No. 28-A of 2006 dismissing the suit for declaration of title, partition and permanent injunction. In this appeal, the appellant is referred as 'plaintiff and respondents as 'defendants'. 2. The admitted facts are as follows : "The disputed house bearing Municipal No. 40/150 (new house No. 954) is situated in Parakh Ji Ka Bada, Daulatganj, Lashker Gwalior in which deceased Chhannu (husband of plaintiff) Ganesha and Babu were residing and jointly owned". 3. Facts, in brief, of the plaint are that the disputed house was of the ownership of father of husband of the plaintiff deceased Chhote and after death of said Chhote, the ownership of disputed house was vested in his three sons Chhannu, Babu and Ganesha. Babu was unmarried, hence, his share merged into that of his two brothers Chhannu and Ganesha and therefore, husband of plaintiff, Chhannu and his brother Ganesha (whose wife and sons are defendants in this case) became owner of equal share in the disputed house. After the death of plaintiffs husband on 10-12-2003 who was having l/2th share in the said house, the plaintiff became owner of l/2th share and ownership of rest of the portion was vested in Ganesha the father of defendants. Both parties were residing in the disputed house jointly. After death of the plaintiffs husband, she asked the defendants for partition of the said house but they avoided the partition and threatened the plaintiff on 15-2-2005 that they would sell what she claimed as her share of the house. Hence, the plaintiff had to file the suit. 4. The defendants No. 1 to 3 submitted joint written statement and denying the plaint allegations have alleged that the plaintiff is not entitled to l/2th share of the disputed house as deceased Babu s/o Chhote in his lifetime has executed a registered Will dated 2-8-1986 in favour of defendant No. 2 and even the plaintiffs husband Chhannu had executed a registered Will Ex.D/1 dated 1-6-1993 in favour of the defendant No. 1. Thus, the defendants No. 1 and 2 are owner of the disputed house. Thus, the defendants No. 1 and 2 are owner of the disputed house. However, the defendants are neither selling the disputed house to anybody nor did threaten the plaintiff that they would sell what she claimed to be her share of the house to any other. The suit was filed by the plaintiff on the false grounds hence, it deserves to be dismissed. 5. That, learned trial Court after framing three issues and after recording evidence of both the parties and having discussed the recorded evidence in detail, has dismissed the suit vide impugned judgment dated 31-1-2007. 6. The following points arise for consideration in this appeal : (i) Whether or not Chhannu, husband of plaintiff, Ramshri executed a registered Will Ex.D/1 dated 1-6-1993 in favour of defendant No. 1 Mahila Indrabai? (ii) Whether or not, the deceased Babu S/o Chhote executed a registered Will Ex.D/2 dated 2-8-1986 in favour of defendant No. 2? (iii) Whether, the findings of learned trial Court are based on proper reasoning? (iv) Whether, the plaintiff Mahila Ramshri has a title l/2th share in the disputed house? 7. Learned appellant's counsel submits that the findings recorded by the learned trial Court are not only against the recorded evidence but also against the provisions of section 63 of the Indian Succession Act and section 68 of the Indian Evidence Act. The defendants have totally failed to prove the attestation of the alleged Wills Ex.D/1 and Ex.D/2 since under section 68 of the Evidence Act, the attestation of the executant's signature on the Wills should have been proved by atleast one attesting witness of Ex.D/1 and Ex.D/2, however, the Wills Ex.D/1 and Ex.D/2 have not been proved by any attesting witness in the instant case. In spite of the said facts, the trial Court has opined that the said Wills Ex.D/1 and Ex.D/2 have been proved by the defendants. 8. Learned counsel for the appellant further pleads that the whole appreciation of the evidence is based on surmises and conjectures. The learned trial Court has committed error in dismissing the suit whereas, the plaintiff's half share has been established by the evidence of both the parties as the plaintiff being the wife of deceased Chhannu is the sole heir of his title. Indisputably, Chhannu had half share in the disputed house. The learned trial Court has committed error in dismissing the suit whereas, the plaintiff's half share has been established by the evidence of both the parties as the plaintiff being the wife of deceased Chhannu is the sole heir of his title. Indisputably, Chhannu had half share in the disputed house. The counsel urges that the impugned judgment and decree be set aside and the decree affirming plaintiffs title to half share in the disputed house be passed in her favour. The learned counsel has cited the following judgments in his submission : (i) Smt. Meera Jamil and others vs. Bhopal Vikas Pradhikaran and others, 2006(2) MPHT 78 , (ii) Vishwanath Gupta and others vs. Virendranath Agrawal and others, 2007(4) MPLJ 281 = 2007(2) JLJ 347 ; (iii) Niranjan Umeshchandra Joshi vs. Mrudula Jyoti Rao and others, (2006) 13 SCC 433; (iv) Gopal Swaroop vs. Krishna Murari Mongol and others, (2010) 14 SCC 266 ; (v) S. R. Srinivasa and others vs. S. Padmavathamma, (2010) 5 SCC 274 ; and (vi) Suraj Lamp and Industries Private Ltd. Through Director vs. State of Haryana and another, (2012) 1 SCC 656 ; 9. Rebutting the submissions made by the appellant, the learned counsel for the respondents/defendants puts forth in the arguments that the impugned judgment is rational in toto, therefore, no interference is required further. 10. 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. 10. 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 acknowledgment 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.D/1 and D/2 have to be examined whether or not they have been proved? 11. 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 vs. Tarabai Aba Shedage and Sridevi vs. Jayaraja Shetty). Subject to above, proof of a Will does not ordinarily differ from that of proving any other document". 12. As per allegations in the written statement, the defendant Indrabai (DW1) is the propounder of the Will dated 1-6-1993 Ex.D/1 executed by deceased Chhannu (plaintiffs husband) in her favour. The Will is registered and Raju Ahirwar and Prdaeep Sharma have been shown as attesting witnesses. On perusal of the Will Ex.D/1, it appears that Chhannu was illiterate and his thumb impression was got imprinted on it and it has been drafted by Advocate Shri M. M. Shrivastva (DW2). 13. The defendant Indrabai has expressed her ignorance in para 7 of her statement regarding the person who had typed it and by whom, it had been got prepared. Hence, it is evident that the Will Ex.D/1 was not executed by Chhannu in his presence. Moreover, the statement of another attesting witness Raju Ahirwar has not been got recorded and no sufficient reason has been shown on behalf of the defendants as to why, the alleged attesting witness was not produced in his evidence to substantiate the attestation and execution of Ex.D/1. Moreover, the statement of another attesting witness Raju Ahirwar has not been got recorded and no sufficient reason has been shown on behalf of the defendants as to why, the alleged attesting witness was not produced in his evidence to substantiate the attestation and execution of Ex.D/1. It is true that the statement of another attesting witness Pradeep Sharma has been produced under Order 18, Rule 4 of the Code of Civil Procedure as attesting witness but he was not produced for cross-examination by the defendants, without which, this evidence cannot be considered to be valid as held by the High Court in State of M. P. vs. Khilan Singh, 1994 (I) MPWN 728. However, believing the statement of Pradeep Sharma in para 14 of the judgment, the learned trial Court has committed grave error in upholding the execution of Will Ex.D/1. 14. The witness Pradeep Sharma has tried to say in his statement that Raju Ahirwar has died but in this regard, no death certificate has been produced by the defendants. Besides, the defendant Indrabai and Ashok Rajak both have not deposed in their statements that Raju Ahirwar has died. In view of the facts, it appears that story of the death of Raju Ahirwar has been prepared an afterthought at the stage of filing statement of Pradeep Sharma who did not turn up before the Court for facing the cross-examination. 15. On perusal of record of the trial Court, it becomes clear that an application under section 151 of Code of Civil Procedure was filed on behalf of the defendants saying that the witness Pradeep Kumar Sharma was won over by the plaintiff owing to which, he was not coming to Court for recording his statement so the statement of Shri M. M. Shrivastava, Advocate is being produced as a witness. This application does not bear any remark about the presentation of it, by the Presiding Officer nor has it been mentioned in the order sheet. This application was neither considered by the trial Court nor any order was passed on it. The learned trial Court without verifying the facts of the application has given the findings in para 15 of the impugned judgment that the witness Pradeep Sharma was won over by the plaintiff. The said finding of the trial Court appears to be baseless and devoid of merit. 16. The learned trial Court without verifying the facts of the application has given the findings in para 15 of the impugned judgment that the witness Pradeep Sharma was won over by the plaintiff. The said finding of the trial Court appears to be baseless and devoid of merit. 16. As per the statement of Shri M. M. Shrivastava, Advocate, he had only drafted the Will Ex.D/1 but he is neither an attesting 8 witness of the Will nor attested the thumb impression of Chhannu. The said witness has deposed in para 4 of his statement that he has not attested the thumb impression of Chhannu and has further stated that he is unable to say from whom he got the Will Ex.D/1 typed. Over and above, he did not read out the Will Ex.D/1 to Chhannu but in this regard, he has mentioned the above fact in his statement at the behest of the party. The document in question reveals that the witness has neither put his seal nor written his name. It appears that he has put his signature on the Will afterwards in order to become a post facto witness of the Will. In Sundeariya Bai Chaudhary vs. Union of India, 2008(2) MPLJ 321 = 2008(3) MPHT 315 (DB), the Hon'ble High Court has held that a registered or unregistered Will can only be proved by attesting witness, if alive. 17. Witness Ashok Rajak, Indrabai's son has deposed in his statement that Chhannu has executed the Will Ex.D/1 (wrongly mentioned in his statement as Ex.D/2) in favour of his mother. Since this witness is not an attesting witness of the Will Ex.D/1, his evidence has no substantial value to prove the same. He being interested in his mother's case, has deposed the statement in her favour. The statement of Ashok Rajak does not prove execution of the Will Ex.D/1. 18. The Will in question dated 2-8-1986 Ex.D/2 executed by Babu S/o Chhote in favour of Ashok Rajak defendant is a photo copy of registered Will. Original Will has not been produced on record. On perusal of the Will, it is evident that the said Will was attested by Munnalal and Bindu. The defendants have produced the statement of Munnalal on affidavit under Order 18 Rule 4 of Code of Civil Procedure on 4-10-2006 to prove the attestation and execution of the Will. Original Will has not been produced on record. On perusal of the Will, it is evident that the said Will was attested by Munnalal and Bindu. The defendants have produced the statement of Munnalal on affidavit under Order 18 Rule 4 of Code of Civil Procedure on 4-10-2006 to prove the attestation and execution of the Will. But he was not produced for cross-examination by the defendants. Though, the defendants have tried to say that the witness Munnalal has died yet no death certificate of the witness or any other document corroborating his demise has been produced on record by the defendants as well. The other attesting witness of Ex.D/2, Bindu was also not produced by the defendants. It has not been explained by them as to why the said witness was not produced in the Court for getting his statement recorded. Even his death certificate too was not produced. Further, the summons were not got issued by the defendants for ensuring his presence and recording his statement. The trial Court appears to have erred in placing reliance upon the fact that Munnalal was dead without any sufficient evidence on record. In the said circumstances, it is obvious that the Will Ex.D/2 has not been proved by the attesting witness as required by section 68 of the Evidence Act. 19. The witness Rajkumar Sharma, Advocate deposing in his statement has stated that the Will Ex.D/2 was drafted by him at Babu's behest. The witness has proved his signature marked as 'D to D' and Babu's signature marked as 'B to B' on the Will Ex.D/2. This witness is also not the attesting witness of Ex.D/2. Herein his role is that of scribe and therefore, this statement cannot be accepted to prove the execution of the Will Ex.D/2 as attesting witness of the same. In Jankinarayan vs. Narayan Dev, 2003(3) SCC 91, the Hon'ble Apex Court has held that a scribe cannot be treated as attesting witness of a Will. 20. The defendant Ashok Rajak is a propounder of the Will Ex.D/2. He was 18 years old at the time of the execution of the said Will. In the instant case, the alleged Will Ex.D/2 has not been proved by any attesting witness as per section 68 of the Evidence Act as discussed earlier. Mere statement of Ashok Rajak has no relevance in proving the execution of Will Ex.D/2. He was 18 years old at the time of the execution of the said Will. In the instant case, the alleged Will Ex.D/2 has not been proved by any attesting witness as per section 68 of the Evidence Act as discussed earlier. Mere statement of Ashok Rajak has no relevance in proving the execution of Will Ex.D/2. In the light of aforesaid analysis, it is concluded that the defendants have utterly failed to prove the execution of the Wills Ex.D/1 and ExD/2. The trial Court has erred in arriving at the conclusion that the Wills Ex.D/1 and Ex.D/2 have been proved by the defendants. The findings of the trial Court are not sustainable. Thus, it is concluded that on the basis of the alleged Wills Ex.D/1 and D/2, the defendants Indrabai and Ashok Rajak do not acquire any title and interest in the disputed house. 21. Indisputably, it has come on record that the disputed house was jointly owned by three brothers Chhannu, Babu and Ganesha. Babu died issuless. The alleged Will Ex.D/2 of Babu has not been found proved as discussed earlier. After Babu's death, his title to l/3rd share devolved upon his remaining brothers Chhannu and Ganesha who became joint owners having half share in the disputed house. Chhannu's Will Ex.D/1 has also not been found proved. Hence, after his demise, his title devolved upon his widow plaintiff Ramshri. Thus, the plaintiff Ramshri has acquired the title of half share in the disputed house. The trial Court herein has committed grave error in dismissing the suit. 22. Having taken into account of the recorded evidence, allowing the appeal and setting aside the impugned judgment and decree, the plaintiffs suit is hereby decreed. The plaintiffs title is declared as having title to half share in the disputed house and further, she is entitled to get the house partitioned as per her share and would get the possession. The defendants are restrained from selling the disputed house till the partition is made complete. 23. In view of the facts and circumstances of the case, no order as to the costs. 24. The decree be drawn up accordingly. Appeal allowed.