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2017 DIGILAW 1048 (MP)

Atul Shrivastava v. Chandrakanta

2017-10-03

VIVEK AGARWAL

body2017
ORDER 1. This second appeal has been filed by the appellant being aggrieved by judgment and decree dated 20th May, 2011 passed by the learned Court of District judge, Ashoknagar, in Civil Appeal No.3-A/2011 whereby confirming the judgment and decree dated 19.11.10 passed by the Court of 1st Civil Judge, Class I, Ashoknagar, in Civil Suit No.19-A/2009. 2. It is the case of the plaintiff/appellant that he is son of Shri Radharacharan Shrivastava. Radhacharan Shrivastava was son of Haricharan Shrivastava and Haricharan Shrivastava had two sons, namely Radhacharan Shrivastava and Kailash Narayan. Kailash Narayan was married to Smt. Chandrakanta, defendant No.1, but they had no children, whereas plaintiff/appellant is son of Radhacharan. It is his case that his uncle Kailash Narayan had executed a Will in relation to the ancestral property on 9.12.2003 and handed over possession and ownership to the plaintiff pertaining to his ½ share in the ancestral property. Since he was busy in business and his mother had died prior to death of Shri Kailash Narayan and thereafter he got busy in performing his own marriage and then he was blessed with a child who was suffering from certain ailments, he could not act upon such Will and when he discovered in the year 2008 that defendant No.1 got mutation of the said land in her favour and sold it in favour of defendant No.2, then he filed the suit. Learned counsel for the appellant submits that since he was only male successor of Late Kailash Narayan, therefore, he had executed a Will in favour of the plaintiff. 3. It is an admitted fact that Shri Kailash Narayan Shrivastava died on 14.2.2004 and thereafter for the reasons mentioned above he could not get the mutation in his favour and taking advantage of such facts, defendant No.1 i.e. his aunt, sold the suit property in the name of defendant No.2. 4. In support of his contention, appellant/plaintiff had examined himself and both the witnesses of the Will, namely Shri Virendra Shrivastava and Amit Hundait. Besides this, he had examined his own father as a witness and the Notary, who had notarized the Will on 9.12.2003. 4. In support of his contention, appellant/plaintiff had examined himself and both the witnesses of the Will, namely Shri Virendra Shrivastava and Amit Hundait. Besides this, he had examined his own father as a witness and the Notary, who had notarized the Will on 9.12.2003. Placing reliance on their evidence, learned counsel for the appellant submits that since Late Kailash Narayan had executed a Will in favour of the plaintiff, therefore, he is owner of the suit property, and therefore, defendant No.1 had no right to alienate the said property in favour of defendant No.2. 5. On the other hand, learned counsel for defendants No.1 and 2 submits that the Will was forged and was prepared so to take away the rights of defendant No.1 who is admittedly married wife of Late Kailash Narayan and no reason has been assigned in the Will not to give share in the property in favour of his wife who as per the provisions of the Hindu Succession Act falls under Class I legal heir. 6. Trial Court had with the consent of the parties, appointed one Handwriting Expert as Commissioner and said Handwriting Expert Shri Anil Agrawal of Jhansi had given his examination report Ex.D-16 in which he has specifically mentioned that the disputed document i.e. the Will is a forged document and the admitted signatures as were made by the testator/author of the Will were different from the signatures put on the Will. This witness Anil Agrawal has been cross-examined in detail, but there is no contradiction in his cross-examination as regards finding recorded by the said Handwriting Expert in regard to the document being forged and fabricated. 7. Learned trial Court as well as first appellate Court has noted several anomalies in the testimony of the plaintiff's witnesses inasmuch as on the one hand plaintiff Atul Shrivastava has mentioned in his cross-examination that he had received Will after 10-15 days of its execution in the hands of his uncle Shri Kailash Narayan Shrivastava, whereas Amit Hundait (PW3) in para 7 has admitted that Will was handed over to the plaintiff Atul Shrivastava at that very time of its execution. Similarly, Notary Shri Purushottam Parashar in his deposition para 5 has admitted that whatever documents are notarized by him, he puts a serial number on them, but he could not explain absence of serial number on Ex.P-1. Similarly, Notary Shri Purushottam Parashar in his deposition para 5 has admitted that whatever documents are notarized by him, he puts a serial number on them, but he could not explain absence of serial number on Ex.P-1. He also submitted that he is not aware as to whether the Will was typed. On the contrary, in para 8 he admitted that neither he got the Will typed nor he had prepared the matter of the Will. There is no evidence of any typist to show that where the Will was typed and on whose instance such Will was typed. This was necessary, specially when Notary Public has denied the fact that Will was typed or prepared at the instructions of the testator in front of him. As far as the register maintained by the Notary is concerned, he has mentioned that it has been eaten up by termites but there is no documentary evidence to show that he had reported such destruction of notary register to the authorities to whom he was required to report in regard to maintenance of such notary register from time to time. Another fact which has come on record and which has been admitted by the plaintiff that he had stayed at Ashoknagar with his uncle Kailash Narayan Shrivastava and aunt only in the year 1984-85. He admitted that he was pursuing his business at Guna after 1985. Therefore, there was another presumption of existence of an unnatural circumstance that when wife of the testator was surviving, then what was the reason not to give property in favour of his wife and to make a Will in favour of his nephew who too was not living with the testator of the Will. Therefore, there was another presumption of existence of an unnatural circumstance that when wife of the testator was surviving, then what was the reason not to give property in favour of his wife and to make a Will in favour of his nephew who too was not living with the testator of the Will. In view of such facts and circumstances recorded by the trial Court and the first appellate Court, specially in the light of the report of the Handwriting Expert, who has termed the Will to be forged, concurrent findings recorded by the Courts below to the effect that in fact testator of the Will Kailash Narayan Shrivastava was not the author of the Will Ex.P-1 and he in fact died intestate i.e. without leaving any Will, and therefore, his estate is to be devolved upon the legal heirs in terms of the provisions contained in Hindu Succession Act and as per schedule of Hindu Succession Act wife being class I legal heir, the plaintiff had no right to succeed to the property of the deceased, being perfectly in synchronization with the evidence on record, do not call for any interference. Thus, the appeal fails and is dismissed.