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2014 DIGILAW 495 (MP)

Pushpendra Singh v. Jagdish

2014-05-01

ROHIT ARYA

body2014
ORDER Arya, J. -- 1. This appeal by defendants is directed against the judgment and decree dated 25.3.2010 in Civil Appeal No.46-A/2008 confirming the judgment and decree dated 30.9.2008 in Civil Suit No.80-A/2007. 2. Plaintiffs/respondents and defendant No.4 are real brothers and defendants No.18, 19 and 20 are their real sisters. Late Dhankunwar is mother, who has died on 16.7.2005. The subject matter of the suit is an agricultural land, description whereof is given in para 2 of the first appellate Court’s judgment (hereinafter referred to as ‘suit land’). Undisputedly, suit land after the death of her husband was of the ownership of Late Dhankunwar. She had executed a registered Will dated 1.4.1999 in favour of defendants No.1, 2 and 3 at the instance of defendant No.4, who is father of defendants No.1, 2 and 3, however, she executed a subsequent Will on 15.6.2005 superseding the aforesaid Will with clear stipulation in that behalf in favour of plaintiffs and defendant No.4. 3. The sole question need to be addressed by this Court is as to whether the subsequent Will dated 15.6.2005 is a valid Will bearing in mind the concurrent finding of facts recorded by Courts below to the effect that the Will dated 15.6.2005 was legally valid last Will superseding the Will dated 1.4.1999. 4. The trial Court and the first appellate Court have critically examined the entire evidence brought on record by respective parties in support of their case as regards sustainability of Will dated 15.6.2005 and Will dated 1.4.1999. PW1 Jagdish has stated that Late Dhankunwar being mother was taken care of by all her sons viz. plaintiffs and defendants and she used to extend love and affection to all. She expressed her desire to distribute her agricultural holdings amongst all her sons by executing a Will and sought assistance of the advocate in that behalf. Notary Giriraj Kishore Maheshwari on the dictation of Late Dhankunwar had scribed the Will and two witnesses, namely, Naresh and Gajraj Singh were the witnesses to the Will. Late Dhankunwar had disclosed the fact that earlier she had executed a Will in favour of sons of her son Udham Singh by executing a Will dated 1.4.1999, however, now she wanted to cancel the said Will and distribute the agricultural holdings to all her sons equally and, therefore, the occasion for executing Will dated 15.6.2005 had arisen. Late Dhankunwar had disclosed the fact that earlier she had executed a Will in favour of sons of her son Udham Singh by executing a Will dated 1.4.1999, however, now she wanted to cancel the said Will and distribute the agricultural holdings to all her sons equally and, therefore, the occasion for executing Will dated 15.6.2005 had arisen. The Will dated 15.6.2005, Ex.P/1, wherein photo of Late Dhankunwar is also affixed bearing thumb impression of Late Dhankunwar and attesting witnesses, namely, Naresh and Gajraj Singh. The attesting witness, namely, Gajraj Singh (PW2) has deposed that Late Dhankunwar had put her thumb impression on the Will dated 15.6.2005 in front of Naresh (another attesting witness) and him bequeathing her property in favour of all her sons, namely, Jagdish, Jasrath, Ballu and Udham Singh prepared by Giriraj Kishore Maheshwari, advocate notary, and she put thumb impression on the Will after the same was read out to her. The scribe Giriraj Kishore Maheshwari (PW4) has deposed that he had drafted the Will on the dictation of Late Dhankunwar and detailed the land particulars as per Khasra entries. The Will was typed, contents thereof were read out to her, after that she expressed her satisfaction over it and thereafter put her thumb impression as propounder in front of both witnesses, namely, Naresh and Gajraj Singh. As such, the Will dated 15.6.2005 was propounded and legally/dully attested by two witnesses. The defendants/appellants though have alleged that the Will dated 15.6.2005 is forged and fabricated, but no evidence was led by them to prove the said allegations as discussed by the first appellate Court in para 13 of the judgment. 5. With the aforesaid evidence on record, both the Courts have recorded the finding that the Will executed on 15.6.2005 was a validly executed Will and the allegation that the Will was forged and fabricated, as levelled by the defendants/appellants, was found to be without any substance, as evidence in that behalf was led. It appears that the defendants/appellants had filed an application before the first appellate Court under section 45 of the Evidence Act seeking expert’s opinion on the thumb impression of Late Dhankunwar as found on the Will dated 15.6.2005 alleging that the thumb impression on the aforesaid Will is not that of Late Dhankunwar. The respondents/plaintiffs have replied the application. It appears that the defendants/appellants had filed an application before the first appellate Court under section 45 of the Evidence Act seeking expert’s opinion on the thumb impression of Late Dhankunwar as found on the Will dated 15.6.2005 alleging that the thumb impression on the aforesaid Will is not that of Late Dhankunwar. The respondents/plaintiffs have replied the application. Upon perusal of the order-sheets, it appears that this application was filed alongwith an application under Order XIV rule 5 of CPC. Application was argued by the appellants in detail and orders thereupon was passed. Upon perusal of the ordersheets, it appears that an application under Order XIV rule 5 of CPC was also filed simultaneously. It is further revealed that the said application was argued by the appellants’ counsel in detail and thereafter order thereon was passed. It appears that appellants/defendants did not seek indulgence of first appellate Court at any point of time for addressing upon the application under section 45 of the Evidence Act on any of the dates fixed before the first appellate Court. Looking to the facts and circumstances of the case and findings recorded by Courts below, this Court thought it apposite to consider the aforesaid application in the context of pleadings on record to meet the ends of justice. Upon perusal of written statement, nowhere it is alleged that the thumb impression of Late Dhankunwar on the Will dated 15.6.2005 was forged and said thumb impression was different from the one on the Will dated 1.4.1999. That apart, there is no evidence as well on record led by the defendants to the aforesaid effect. Besides, no application was filed before the trial Court seeking expert’s opinion on the thumb impression of Late Dhankunwar on the Will dated 15.6.2005. There is no reason assigned in the application to explain non-filing of said application before the trial Court. That apart, no evidence has been brought on record in support of the allegation that the thumb impression of Late Dhankunwar on the Will dated 15.6.2005 was forged. It was mere a verbose. As such , the application appears to be afterthought and last ditch effort to somehow challenge the concurring findings recorded by the Courts below as regards aforesaid Will dated 15.6.2005. It was mere a verbose. As such , the application appears to be afterthought and last ditch effort to somehow challenge the concurring findings recorded by the Courts below as regards aforesaid Will dated 15.6.2005. Under such circumstances, it appears that the appellants/defendants having failed to assail the factum of execution of Will dated 15.6.2005 by Late Dhankunwar before the trial Court, as a measure of afterthought, filed the instant application which in the opinion of this Court is de hors plaint averments and the evidence brought on record, therefore, under such circumstances, application deserves to be rejected. 6. Having gone through the judgments of the trial Court and the first appellate Court coupled with the record of the case, this Court is of the opinion that both the Courts below have recorded concurrent finding of facts as regards execution of Will dated 15.6.2005 by taking into consideration the entire evidence on record i.e. evidence of scribe of Giriraj Kishore Maheshwari (PW4) and that of attesting witnesses and plaintiffs’ evidence. The Courts below have recorded conclusive finding of facts that there is no evidence on record as regards allegation that the Will dated 15.6.2005 is forged and fabricated. Upon perusal of the evidence brought on record, it is evident that the Will dated 15.6.2005 is duly proved in accordance with the provisions of section 68 of the Evidence Act. As such, the findings so recorded are impregnable in nature. The entire gamut of the matter is in the realm of facts. There is no question of law much less substantial question of law involved in this appeal warranting interference under section 100 of CPC. Counsel for the appellants/defendants has relied upon the judgments in Damara Venkata Murali Krishna Rao v. Gurujupalli Satvathamma (2008) 12 SCC 170 and Monika Soni v. Kamal Soni (2008) 17 SCC 713 , however factual matrix in the case in hand is altogether distinguishable. The appeal sans merits is hereby dismissed.