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2015 DIGILAW 200 (UTT)

Indira Sethi v. Brij Mohan Marwaha

2015-04-07

SERVESH KUMAR GUPTA

body2015
JUDGMENT This second appeal has been preferred to challenge the judgment and order dated 19.3.2012, passed by the Additional District Judge/F.T.C. 7th, Dehradun in Civil Appeal No. 1/2010, Smt. Madhu Marwaha and three others v. Brij Mohan Marwaha, as well as against the judgment and order rendered by the learned 4th Additional Civil Judge (Sr. Div.), Dehradun dated 30.11.2009 in Original Suit No. 801/1999, Brij Mohan Marwaha v. Surendra Mohan Marwaha and others. Both the judgments, challenged herein, render the concurrent finding wherein the decree with costs was passed and the 'Will' dated 12.9.1996 was cancelled with the declaration of such 'Will' to be void and ineffective. In the judgment dated 30.11.2009, the counter-claim of Smt. Madhu Marwaha and Mayank Marwaha (wife and son of the deceased defendant Surendra Mohan Marwaha) was rejected with costs. 2. It is pertinent to mention that in the counter-claim (as amended vide order dated 26.5.2008), a decree was sought to declare the registered 'Will' dated 10.9.1996 as null and void alleging that the same had been obtained by fraud and coercion from the testator Smt. Shakuntala Marwaha (the mother of Brij Mohan Marwaha and Surendra Mohan Marwaha). 3. Though the judgment and order dated 30.11.2009 decreeing the suit of the plaintiff and dismissing the counter-claim ought to have been challenged by way of filing two separate appeals, yet only one appeal bearing Civil Appeal No. 1/2010 was filed. In such appeal, the prayer was made only in two lines and the same is as under: 'It is therefore respectfully prayed that the judgment dated 30.11.2009 is liable to be set aside and the appeal be allowed.' 4. Here it can be noticed that there was no specific prayer seeking the decree of the counter-claim. That appeal was found bereft of any force besides meritless. So, the same was dismissed by way of impugned judgment dated 19.3.2012. 5. Feeling aggrieved, this second appeal has now been filed only by Smt. Indira Sethi and Smt. Kamal Sethi, while Smt. Madhu Marwaha and Mayank Marwaha have chosen not to prefer the second appeal. So, they were added as pro forma defendants/respondents by way of moving an amendment application No. 8843/2012 later, which was allowed by another Bench of this Court vide order dated 10.7.2014. 6. I have heard learned Counsel of the defendants/appellants as well as the learned Counsel of the plaintiff/respondent. So, they were added as pro forma defendants/respondents by way of moving an amendment application No. 8843/2012 later, which was allowed by another Bench of this Court vide order dated 10.7.2014. 6. I have heard learned Counsel of the defendants/appellants as well as the learned Counsel of the plaintiff/respondent. The entire matter was argued fully by learned Counsel for the parties at the stage of admission itself. 7. Though as many as six questions claiming the same to be the substantial questions of law have been formulated, but having appreciated the entire controversy as well as the legal point involved, in my considered view, not a single question of law, much less substantial in nature, arises in this appeal because the entire factual and legal controversy has been well discussed with sound reasons by both the courts below, and this Court too does concur with the views and findings expressed in the impugned judgments. However, for the satisfaction of learned Counsel of the appellant, as he laid much stress upon the interpretation of Sections 105 and 107 of the Indian Succession Act, 1925, I would like to discuss and observe as under so far as the first question of law formulated as (A) in the amended memo of this second appeal is concerned. The said question reads as under: 'Whether the learned Courts below committed a mistake in not considering the effect of death of Sri Ravi Mohan, one of the legatees, during the lifetime of the testator Smt. Shakuntala Devi on the effect and operation of the alleged WILL dated 10-9-1996?' 8. For the sake of convenience, Sections 105 and 107 of the Act (supra) are reproduced as under: '105. In what case legacy lapses-(1) If the legatee does not survive the testator, the legacy cannot take effect, but shall lapse and form part of the residue of the testator's property, unless it appears by the will that the testator intended that it should go to some other person. (2) In order to entitle the representatives of the legatee to receive the legacy, it must be proved that he survived the testator. 107. Effect of words showing testator's intention to give distinct shares. (2) In order to entitle the representatives of the legatee to receive the legacy, it must be proved that he survived the testator. 107. Effect of words showing testator's intention to give distinct shares. 'If a legacy is given to legatees in words which show that the testator intended to give them distinct shares of it, then, if any legatee dies before the testator, so much of the legacy as was intended for him shall fall into the residue of the testator's property.' 9. Learned Counsel of the appellant has argued that the 'Will' of the testator will have an effect of lapse as regards the property mentioned in paragraph 2 of the same by virtue of the applicability of Section 105 of the Act because Ravi Mohan, to whom the property mentioned in paragraph 2 was bequeathed, died on 8.4.1997 in the lifetime of the testator Smt. Shakuntala Marwaha (his mother), who died on 20.9.1997. Thus the legatee Ravi Mohan predeceased the testator Smt. Shakuntala Marwaha. He has further argued that this 'Will' shall have the effect of lapse as regards the property mentioned in paragraph 4 of the same by virtue of the applicability of Section 107 of the Act (supra) because the distinct shares were given to the different legatees in this paragraph 4 of the 'Will'. 10. Agreeing with arguments submitted by learned Counsel of respondent No. 1, this Court finds that perhaps learned Counsel of the appellant remained in oblivion as regards the provisions contained under Section 109 of the Act which is not far in the Act, but almost follows the Sections 105 and 107 of the Act. Section 109 reads as under: '109. When bequest to testator's child or lineal descendant does not lapse on his death in testator's lifetime.-Where a bequest has been made to any child or other lineal descendant of the testator, and the legatee dies in the lifetime of the testator but any lineal descendant of his survives the testator, the bequest shall not lapse, but shall take effect as if the death of the legatee had happened immediately after the death of the testator, unless a contrary intention appears by the will.' 11. Learned Counsel on behalf of the appellant has relied upon a precedent of Hon'ble Apex Court rendered in S. Jhansi Lakshmi Bai v. Pothana Appa Rao, reported in AIR 1969 SC 1355 . Learned Counsel on behalf of the appellant has relied upon a precedent of Hon'ble Apex Court rendered in S. Jhansi Lakshmi Bai v. Pothana Appa Rao, reported in AIR 1969 SC 1355 . This law was laid down by the Hon'ble Apex Court while dealing with the situation when there was bequeath dated July 14, 1948 executed by one Mr. Appanna, who died on March 12, 1953. That bequest was only in favour of his wife Mangamma with certain directions to utilise the proceeds of the bequeath for two purposes, but his wife Mangamma, who was the sole legatee of the property, died issueless prior to the testator leaving no lineal descendant. In those circumstances, Hon'ble Supreme Court invoked Section 105 of the Indian Succession Act, 1925 and decided the appeal and succession according to the law as applicable. 12. However, in the case in hand, it is on the record that Ravi Mohan (one of the sons of the testator) died on 8.4.1997, survived by his wife and sons as his successors. So, in this situation, Section 109 of the Act will come into play and the bequest executed by Smt. Shakuntala Marwaha shall not lapse, but shall take effect as if the death of the legatee had happened immediately after the death of the testator, unless a contrary intention appears by the 'Will'. Apparently, no such contrary intention appears from the 'Will' dated 10.9.1996. So, the Section 109 is an exception to the Sections 105 and 107 of the Act. 13. It was further argued by learned Counsel for the appellants that, in fact, the 'Will' dated 10.9.1996 was in favour of all children with certain directions regarding the property mentioned in paragraph 4 of the same. This submission of learned Counsel is also not acceptable to the Court because even in paragraph 4 of the said 'Will', there was no mandate of the testator to sell the property mentioned therein. It was left on the discretion of the legatees, viz. Brij Mohan and Ravi Mohan, to sell the property mentioned in paragraph 4 and if they do so, the manner of utilisation of proceeds thereof was also disclosed. It was not any direction, but was left on the discretion of the legatees. 14. So, this way, no question arises as regards the applicability of Section 105 of the Act. Brij Mohan and Ravi Mohan, to sell the property mentioned in paragraph 4 and if they do so, the manner of utilisation of proceeds thereof was also disclosed. It was not any direction, but was left on the discretion of the legatees. 14. So, this way, no question arises as regards the applicability of Section 105 of the Act. The question of law, formulated as (A) in the amended memo of appeal, is accordingly answered against the appellants/defendants. 15. It has also been argued that Smt. Madhu Marwaha and Mayank Marwaha, defendants/respondents, have not been served with the notice and this Court has heard the arguments to decide the appeal finally on the merit. 16. Here, the Court would like to note that Smt. Madhu Marwaha and Mayank Marwaha are, in fact, hand in glove with the appellants/defendants Smt. Indira Sethi and Smt. Kamal Sethi. They all four contested the suit together before the trial court and also collectively filed the first appeal. 17. Both the courts below have held that the so-called 'Will' dated 12.9.1996 is totally a false and forged document. The fake nature of that 'Will' is so apparent and glaring that even a penal prosecution could have been launched against these delinquents as they succeeded in obstructing the legitimate and lawful claim of the legatees by dragging them in litigation for one and half decade in the hierarchy of courts and thus kept them away from enjoying the fruits of the property so bequeathed in favour of them by Smt. Shakuntala Marwaha (their own mother). I think that if such prosecution is launched, then it would be difficult (if not impossible) for any Investigation Officer or the Court to absolve the appellants/defendants from the criminal liability. The unfortunate aspect is that such delinquents/litigants neither get any punishment by the Civil Court/Appellate Court as at the most their case/appeal is rejected, nor it is easy to launch the criminal prosecution against them in want of any initiation to avoid the hassles of court procedure and to take the same to its logical end. 18. So, for the reasons recorded above, this Court feels that the legatee, i.e. the plaintiff/respondent, has been dragged into litigation for such a long period in various courts of law and in other executive offices at the strength of an apparent forged 'Will'. 18. So, for the reasons recorded above, this Court feels that the legatee, i.e. the plaintiff/respondent, has been dragged into litigation for such a long period in various courts of law and in other executive offices at the strength of an apparent forged 'Will'. This all is done not innocuously but with a calculative mind to create the constraints before the person or persons to compromise the matter. Thus, such persons succeed to keep a bona fide person or persons away for quite a long time from enjoying the fruits of a valid, legitimate, registered 'Will', which they would have otherwise got much earlier but not because of this frivolous and quite baseless litigation agitated on the basis of an apparent forged unregistered 'Will'. 19. In the result, this second appeal is dismissed, in limine, at the stage of admission itself with costs throughout as awarded by the courts below as well as the legal expenditure incurred by the respondents here to resist this second appeal. 20. Any interim order, passed by this Court in favour of the appellants/plaintiffs, shall stand vacated. Let the lower court record be sent back. Appeal dismissed.