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2015 DIGILAW 377 (MP)

Kanchanbai v. Kanhaiyalal

2015-04-06

S.R.WAGHMARE

body2015
JUDGMENT : 1. This second appeal filed by the appellant Kanchanbai being aggrieved by judgment and decree passed by the Additional District Judge in Civil Appeal No.9-A/98 confirming the judgment and decree passed in Civil Suit No.56-A/93 by Civil Judge Class I Kukshi. This second appeal has been admitted for hearing on 8.12.1999. it came about that during the pendency of this appeal; sole respondent Kanhaiyalal, died on 2.8.2006 and the appellant moved an application for substituting the name of legal representatives and the substitution was duly made on 5.5.2008. 2. In the peculiar facts of circumstances of the case it so happened that the sole appellant Kanchanbai also died on 6.5.2011 and the application I.A. No.3633/2011 under Order 22 rule 3 CPC dated 28.6.2013 was moved by Manoramabai to be substituted as legal representative of deceased Kanchanbai. This application was moved by Manoramabai on the ground that Kanchanbai had left a Will regarding the disputed house in her favour. This application was vehemently opposed by the legal representative of respondents Kanhaiyalal. He claimed that there was no such Will and it was a forged and fraudulent Will. The reply I.A. No.11851/2006 dated 9.9.2011 has been filed by the legal representative of respondents. Thereafter, this Court vide order dated 21.9.2011 directed the Additional District Judge, Kukshi to give a report and finding whether the Will was genuine or not after holding the inquiry as contemplated under Order 22 rule 5 CPC report dated 4.4.2012 by the ADJ, Kukshi was received by this Court. 3. However counsel for the appellant raised an objection that the discharge certificate of the Mission Hospital, Jobat has been filed but was not being considered by learned ADJ, Kukshi and certain name had also being wrongly been mentioned in the report. Therefore, this Court again on 10.3.2014 directed that the discharge certificate of Kanchanbai be also placed on record and the lower appellate Court was directed to give proper opportunity of hearing to both sides to lead evidence. The order/report was set aside and the matter was remitted to the lower Court to give a fresh finding after appreciation of the entire evidence and taking the discharge certificate on record. The entire exercise was to be completed within a period of three months and the final order/report by ADJ, Kukshi dated 9.5.2014 has been received by this Court and matter is taken up for hearing today. The entire exercise was to be completed within a period of three months and the final order/report by ADJ, Kukshi dated 9.5.2014 has been received by this Court and matter is taken up for hearing today. It is in this factual background that the fact of second appeal may be considered in brief. 4. The civil suit has been filed by Kanchanbai. The disputed house was in the town of Kukshi in Dhar, Chkhalada road bearing Municipal No.5/1, it was two storeyed house and was built by one Bhuwan Singh and he had four daughters and one son. It is an admitted fact that the respondents Kanhaiyalal was a brother of Kanchanbai and initially being disgruntled as son of Bhuwan Singh he had filed a Civil Suit No.10-A/84 against Bhuwaniram @ Bhuwan Singh before the Civil Judge Class II, Kukshi. The civil suit had been dismissed and the finding upheld by first appellate Court and in the second appeal also the High Court had upheld the findings of both the Courts below. The present civil suit of this second appeal had been filed by Kanchanbai since the disputed house was gifted to her by her father, by registered deed dated 4.7.1979 and part of the house was occupied by respondents brother Kanhaiyalal and his son. The finding of second appeal filed earlier were taken to be final by both the parties and it was admitted that the partition of the house had taken place. The plaintiff Kanchanbai however stated in the trial Court that she was going to take steps before the Supreme Court against the said decision of the second appeal. However since father Bhuwan Singh had died and the defendant brother Kanhaiyalal had crossed his rights and tried to encroach in the part of the house, which was not given to him and was trying to establish his right and title in the said property. And on 10.8.1990 he had tried to illegally take possession of a room on the backside and even he had removed the household articles from that room. He was also continuing his illegal activities behind the house on the corridor (galiyara) and also trying to prevent the plaintiff Kanchanbai from her access to the house. And hence Kanchanbai had filed a civil suit for eviction, possession and permanent injunction. He was also continuing his illegal activities behind the house on the corridor (galiyara) and also trying to prevent the plaintiff Kanchanbai from her access to the house. And hence Kanchanbai had filed a civil suit for eviction, possession and permanent injunction. The suit was resisted by the brother Kanhaiyalal stating that the way of galiyara was Government land and given to the defendant as patta and that he had not taken over part of the house; it did not belong to him, the same was given to his father. He submitted that the Supreme Court had also dismissed the appeal filed the sister Kanchanbai and the present suit was nothing but means to harass the defendant. The trial Court however dismissed the suit stating that plaintiff had failed to prove her case and that the first appellate Court also dismissed the appeal filed by the plaintiff and hence the second appeal. 5. Now coming to the peculiar facts already stated above at this juncture, I find that now the sole question that remains to be adjudicated on death of both respondents Kanhaiyalal as well as appellant Kanchanbai; whether on the basis of report dated 9.5.2014, Manoramabai as legal representative would be entitled to continue the suit premises. The report dated 9.5.2014 by the ADJ, Kukshi has given categoric findings that disputed document (Will) of Kanchanbai appears to be a forged document. Hence the objections by counsel are considered thus. 6. Counsel for the Manoramabai has vehemently urged that the witnesses lie but circumstance do not. Kanchanbai has herself put Manoramabai in possession since she had been living with her since 1980 having been abandoned by her husband. And even if the facts surrounding the death of Kanchanbai are considered, counsel submitted that it would be found that Kanchanbai was given the entire house as gift by her father by registered gift deed. The brother Kanhaiyalal himself was in permissive possession and besides the appellant was living with sister Manoramabai since 1980 and although the alleged Will has been prepared on 6.5.2011 the day on which Kanchanbai died. Counsel submitted that she has been discharged from the District Hospital; the discharge ticket has wrongly been discarded by learned ADJ, Kukshi on basis of surmises. Counsel submitted that she has been discharged from the District Hospital; the discharge ticket has wrongly been discarded by learned ADJ, Kukshi on basis of surmises. Counsel vehemently urges the fact that undoubtedly Kanchanbai was grievously ill and it could not be said that merely because thumb impression was obtained on the Will; and whereas Kanchanbai, was a literate person whereas she has not put her signature but put a thumb impression which is not only contrary to the facts of case but it is also based on surmises. The witnesses of the Will have categorically stated that they were present; Sushil Kumar Baghel, who has categorically stated that the thumb impression was put by Kanchanbai herself and he was witness No.3. He remained steadfast in the cross examination. Similarly Jagatsingh and witness Manoramabai have also more or less stated the same thing there was no need to doubt in their testimony. 7. The witness Anil s/o Kanhaiyalal was a biased and prejudiced person and himself stated that they were not on talking terms with the deceased Kanchanbai and under the circumstances, Counsel submitted that the trial Court had erred in holding that the Will was a forged document and that it had been made under suspicious circumstances. Counsel has also pointed out that the testimony of Dr. Sonlata Wilson PW4 is considered, she stated that at the time of discharge the condition of the deceased Kanchanbai was not so bad and she was conscious and when she was admitted she became unconscious. She stated that Kanchanbai had cerebral Malaria and that her central nervous system was not working. However Kanchanbai has been discharged on 5.5.2011 and she was conscious. And in this light also Counsel submitted that there was impediment to the preparation of Will by Kanchanbai. Counsel place reliance in the matter of Madhukar D. Shende v. Tarabai Aba Shedage [2002 AIR SCW 242], to state that factum of the execution of Will challenged without any specific pleadings by rank trespasser no challenge can be put forth by any relative of the testatrix and such finding liable to be set aside. In the said case disposing capacity of testatirx at the time of execution of Will and two attesting witnesses were called into the question. However the Court held that they were natural witnesses to be called to attest the execution of Will. In the said case disposing capacity of testatirx at the time of execution of Will and two attesting witnesses were called into the question. However the Court held that they were natural witnesses to be called to attest the execution of Will. Counsel also placed reliance on PPK Gopalan Nambiar v. PPK Blakrishnana Nambiar and others [1995 AIR SCW 2884], to state that discrepancy in the evidence of attestator would not vitiate validity of a registered will which was duly endorsed by registrar. It is trite that it is the duty of the propounder of will to prove the will and to remove all the suspected features. But there must be real, germane and valid suspicious features and not fantasy of the doubting mind. Counsel prayed that the appeal be allowed and order of the ADJ, Kukshi be set aside. 8. Counsel for the respondents-defendant on the other hand has pointed out that there are concurrent findings against the deceased Kanchanbai and moreover if the testimony of Dr. Sonlata Wilson PW4 is considered, she stated that on the date of discharge Kanchanbai was in very bad condition and unconscious. Counsel submitted that this witness is not very reliable because in the next instant she has stated by the discharge card that Kanchanbai condition was O.K. at the time of discharge although her central nervous system was affected. She stated that it was normal for such a patient to be unconscious for sometime under the circumstances. Besides counsel submitted that all the other witnesses also have not remained steadfast in their testimony. Counsel submitted that PW3 Sushil Kumar has also stated that although Kanchanbai was conscious and she was not asked for signature because she lay on bed and hence thumb impression was taken. He has also submitted that he was the tenant of Kanchanbai earlier. Regarding the testimony of Jagatsingh counsel for respondents also attacked his testimony on the ground that he was not very sure about Kanchanbai being illiterate lady and it was also stated he was not sure on the point that she was grievous ill or not. Manoramabai on the other hand is also a beneficiary under the Will made inconsistent statement in impugned paras 13 and 14 of the deposition. Manoramabai on the other hand is also a beneficiary under the Will made inconsistent statement in impugned paras 13 and 14 of the deposition. She has stated that for the first time Kanchanbai had talked about the Will in front of all the four witnesses when the Will was being typed; besides she is the person, who has purchased the stamps and she has submitted that her sister was having intense fever and could not put her signature. Counsel for the respondents submitted that thus the entire circumstances surrounding the preparation of the Will are suspicious and there is no infirmity in the order/report on the learned ADJ, Kukshi. Counsel submitted that since the Will is held to be the forged Will; Manoramabai cannot be the legal heir of deceased Kanchanbai and the appeal must therefore, abate first. 9. On considering the entire statements and the evidence and also submissions stated above, I find that there is no infirmity in the report and order dated 4.4.2012 passed by Additional District Judge, Kukshi, the appellant Manoramabai has failed to prove the Will and her claim to being the only legal representative of deceased Kanchanbai. 10. Consequently as a natural corollary the appeal must therefore, abate and is hereby dismissed as abated. No costs. .............