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Madhya Pradesh High Court · body

2015 DIGILAW 48 (MP)

Jhariyari v. Satya Narayan Kewat

2015-01-13

K.K.TRIVEDI

body2015
JUDGMENT 1. This second appeal by the defendants under section 100 of the Code of Civil Procedure is essentially against the judgment and decree dated 30.7.2005 passed in Regular Civil Appeal No.142-A/2004 of the Court of II Additional District Judge, Rewa arising out of judgment and decree dated 29.10.2004 passed in Civil Suit No.122-A/2004 by the Civil Judge, Class II, Teonthar, district Rewa. 2. The respondents/plaintiffs approached the Civil Court by filing a suit seeking declaration of their title and permanent injunction against the appellants/defendants. It was contended that the land in suit belonged to the respondents/plaintiffs and they have a share to the extent indicated in the plaint. It was contended in the suit that the appellants/defendants had no right over the said property, but they have tried to dispossess the respondents/plaintiffs by making illegal encroachment on the land. The suit was contested by the appellants and in fact a counter claim was filed stating that at no point of time any Will was executed in favour of the respondents/plaintiffs. It was contended that in fact the Will was never set out and, therefore, the respondents were not entitled to any relief. On the other hand, the appellants were entitled to 1/4 share of the land being Survey No.149/1 of Village Baghedi and that no Will was executed in favour of the respondents/plaintiffs by Someshwar. If any such Will was said to be executed, the same be declared null and void. 3. After filing of the written statement and counter claim, the respondents/plaintiffs withdrew their suit. The counter claim was treated to be the plaint in terms of the law of which a written statement was filed by the respondents/plaintiffs. The said claim made by the appellant was denied by the respondents and dismissal of the counter claim was sought for. 4. The trial Court framed the issues, recorded the evidence and decreed the counter claim of the appellants. The Will dated 15.10.1981 was declared to be null and void. The respondents/plaintiffs preferred an appeal against such a judgment and decree, which has been allowed and the judgment and decree granted in favour of the appellants has been set aside. Hence, this appeal. 5. It is vehemently contended by learned counsel for the appellants that there was a justified reason expressed by the learned trial Court for not believing the Will dated 15.10.1981. Hence, this appeal. 5. It is vehemently contended by learned counsel for the appellants that there was a justified reason expressed by the learned trial Court for not believing the Will dated 15.10.1981. It is contended that the reason assigned by the trial Court for not believing the Will was that the same was never brought to the notice of anybody and was not even utilized for the purposes of getting the name mutated. Having not disclosed the Will for such a long period, it is contended by the learned counsel for the appellants, that the same was not to be believed. For the said purpose, reliance is placed by the learned counsel for the appellants in the case of Fekulal Trivedi v. Smt. Ramabai-1998 Revenue Nirnay. 147 . It is thus contended that if the Will is not proved, the claim made by the appellants was to be treated as rightly decreed by the trial Court. However, only because some of the witnesses have been examined by the respondents/plaintiffs in proof of the Will, the said Will was said to be proved and right accrued to the appellants has been denied by allowing the appeal of the respondents/plaintiffs. 6. Such a contention raised by the learned counsel for the appellants is tested. Undisputedly a Will is required to be proved in terms of the provisions of section 63 of the Indian Succession Act, 1925, if so made in accordance to the provisions of section 68 of the Indian Evidence Act. If one of the attesting witness is available and is examined, the Will is said to be proved. Whether the Will was brought to the notice of others or not, would be relevant only for the purposes of examining whether the said Will was made basis for mutation of the names in the revenue record as has been held by this Court in the case of Fekulal (supra). If the Will is proved in terms of section 68 of the Evidence Act it will not become invalid only because it is not brought to the notice of the authorities at the time of mutation proceedings. If that is so, such law would run contrary to the law of the land as is set out in section 68 of the Indian Evidence Act. 7. If that is so, such law would run contrary to the law of the land as is set out in section 68 of the Indian Evidence Act. 7. For the purpose of satisfying itself, the Court has looked into the statements of witnesses examined in proof of the Will. The Will itself is available on record as Ex.P/13. One of the attesting witnesses, namely Ayodhya Prasad has been examined, who has categorically deposed that the testator had asked him to come to his home where he was present along with yet another person. The Will was written by hand by one Anusuiya, and was signed by the testator in his presence. The attesting witness has identified his signatures on the said document. Not only this, he also stated that the other attesting witness Kashi Prasad had also signed in his presence. In the entire cross-examination, nothing could be brought to show that such a Will was not executed and that it was a fraudulent document subsequently prepared. The scriber of the Will was also examined as a witness, who too has deposed that the Will was written by him and he had signed the same in his capacity as scriber. Thus, from this evidence, the lower appellate Court has rightly held that the Will was proved, but was disbelieved by the trial Court on a flimsy ground that the same was not brought to the notice of the authorities at the time of mutation. As has been discussed, that would not be a germane ground for disbelieving the Will if the same is set out and proved in the manner indicated under the law. 8. Yet another aspect is that when the Will was produced and evidence was adduced, if such an evidence was not acceptable, the burden was on the appellants to prove that the Will was a forged one. No evidence to that effect was produced by the appellants and as such it cannot be said that the Will was wrongly found proved by the lower appellate Court. 9. While appreciating such evidence the trial Court fell in error in not accepting the said evidence in appropriate manner and decreed the claim of the appellants, which, according to law, could not have been decreed in favour of the appellants. 9. While appreciating such evidence the trial Court fell in error in not accepting the said evidence in appropriate manner and decreed the claim of the appellants, which, according to law, could not have been decreed in favour of the appellants. Undisputedly, the testator of the Will was the owner in possession of the property in his self capacity and as such was entitled to bequeath the property according to his wish. A recital in the Will indicates that the share was not given to the married daughters only because sufficient property was given to them by the testator while performing their marriage. If that was the situation, it was opened to the testator to bequeath the property according to his wish. 10. That being so, the findings arrived at by the lower appellate Court cannot be said to be perverse. No error of law is found in appreciating the evidence and dismissing the claim of the appellant. No substantial question of law arises for consideration in this appeal, which fails and is hereby dismissed.