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2017 DIGILAW 1141 (ALL)

SHYAM LALI v. LALJI

2017-04-28

B.AMIT STHALEKAR

body2017
JUDGMENT Hon’ble B. Amit Sthalekar, J.—Heard Sri Rahul Sahai, learned counsel for the appellant and Sri Sharad Malviya alongwith Sri Arnab Banerji, learned counsel for the respondents. 2. These two second appeals have been filed by the appellant. Both the Appeals arise out of judgment of the first appellate Court dated 27.1.2017 dismissing the two Civil Appeals, Civil Appeal No. 05 of 2016 (Shyam Lali v. Lalji) and Civil Appeal No. 06 of 2016 (Shyam Lali v. Lalji and another) filed by the appellant against the judgment of the trial Court whereby the trial Court by a common judgment has dismissed the Suit No. 02 of 2010 (Shyam Lali v. Lalji) and partly decreed the Suit No. 21 of 2010 (Lalji v. Shyam Lali) vide judgment dated 30.1.2016. 3. Since controversy in the two appeals are identical both the appeals are being taken up together for disposal. 4. The land in dispute belonged to one Mohini Devi. Mohini Devi executed a Will in favour of her daughter Kamla Devi on 30.11.1990. The name of Kamla Devi was thereafter also entered in the revenue records. Kamla Devi in turn executed a Will in favour of her daughter-in-law, Shyam Lali. Another Will was stated to have been executed by Mohini Devi in favour of her maternal grand son, Lalji son of Kamla Devi. Shyam Lali filed Suit No. 02 of 2010 (Shyam Lali v. Lalji) seeking cancellation of the Will dated 1.6.1994 with relief of permanent injunction restraining Lalji from interfering with the peaceful possession in the land in question and Lalji filed Suit No. 21 of 2010 (Lalji v. Shyam Lali) seeking cancellation of the Will dated 29.9.2004. In Suit No. 21 of 2010 the case of Lalji, plaintiff was that since his grand mother Mohini Devi alias Bittan Devi widow of Jagannath Singh had executed a Will dated 1.6.1994 in his favour, therefore, the Will executed by her on 30.11.1990 automatically stood superseded and therefore, no valid right or title could be conveyed under such a Will by her to Kamla Devi and therefore, Kamla Devi could not have executed the Will dated 29.9.2004 in favour of Shyam Lali. Both the Suits, Suit No. 02 of 2010 (Shyam Lali v. Lalji) and Suit No. 21 of 2010 (Lalji v. Shyam Lali) were tried together. 5. Both the Suits, Suit No. 02 of 2010 (Shyam Lali v. Lalji) and Suit No. 21 of 2010 (Lalji v. Shyam Lali) were tried together. 5. The trial Court framed issue No. 1, namely, whether the Will dated 1.6.1994 was liable to be declared as invalid and cancelled? The trial Court also framed an issue as to whether the Will dated 29.9.2004 was liable to be set aside? 6. The trial Court held that the burden of proving the validity of the Will dated 1.6.1994 lay upon the plaintiff Lalji in his Suit. Lalji was examined as a witness alongwith one Dinesh Kumar Soni and Ram Vishal Soni the witnesses to the Will. Lalji in his testimony supported his case in the plaint and in cross-examination also stated that at the time when the Will dated 1.6.1994 was executed and signed by witnesses Dinesh Kumar Soni and Ram Vishal Soni he was not present as he had gone to the village but Ram Vishal Soni in his testimony has identified the Will dated 1.6.1994 filed as Paper No. 27 Ga-1 as well as photograph of Mohini Devi on it. He has stated that the Will was got written by one Indrajeet Singh on the request of Mohini Devi which was then read out to her in the presence of witnesses before her signature. The witness of the Will Ram Vishal Soni has proved his own signature as well as the signature of Mohini Devi and the signature of the other witness Dinish Kumar Soni on the Will and has affirmed that at the time of the signing of the Will he, Dinesh Kumar Soni and Mohini Devi alias Bittan Devi were present. He further affirmed that the Will was signed by Mohini Devi in the Sub Registrar’s Office. Dinesh Kumar Soni was examined as PW-3 and he has also approved the Will dated 1.6.1994. In the Will dated 1.6.1994 which has been proved by Lalji it has been stated in no uncertain terms by Mohini Devi that Lalji is her maternal grand son, who was living with her and looking after her. Dinesh Kumar Soni was examined as PW-3 and he has also approved the Will dated 1.6.1994. In the Will dated 1.6.1994 which has been proved by Lalji it has been stated in no uncertain terms by Mohini Devi that Lalji is her maternal grand son, who was living with her and looking after her. It was also stated by her that she had executed a Will in favour of her daughter Kamla Devi on 30.11.1990 which she cancelled by the subsequent Will dated 1.6.1994 which shows that Mohini Devi was aware that she had executed the Will dated 30.11.1990 in favour of Kamla Devi and which she was now cancelling by her last and final Will dated 1.6.1994. This Will deed is a registered document. 7. The trial Court has further held that the plaintiff Shyam Lali in her suit has failed to produce any documents to prove the Will dated 1.6.1994 to be invalid. She also did not produce the Will dated 30.11.1990 in Court. With regard to the other Will dated 29.9.2004 which was the subject-matter of challenge in the suit filed by Lalji as plaintiff, it has been stated that the said Will was fraudulently got executed by Shyam Lali by playing fraud upon Smt. Kamla Devi and by misleading her with the intention of divesting her of her rights. The trial Court has held that two witnesses P.W.2, Ram Vishal Soni and P.W.3, Dinesh Kumar Soni have unfailingly proved the Will dated 1.6.1994 whereas Shyam Lali in her testimony stated that she is the daughter-in-law of Kamla Devi and was looking after Kamla Devi on account of which Kamla Devi executed the Will deed dated 29.9.2004 in her favour. She also stated that Mohini Devi had executed a Will dated 30.11.1990 in favour of Kamla Devi in respect of her movable and immovable property. One witness Ram Narayan has proved the Will dated 29.9.2004. One Ram Dutt Soni and Lalit Kumar have also proved the Will dated 29.9.2004, however, since the Will dated 1.6.1994 executed by Mohini Devi in favour of Lalji has been proved by the witnesses and in the said Will itself Mohini Devi has rescinded her earlier Will dated 30.11.1990 made in favour of Kamla Devi, therefore the Will dated 29.9.2004 executed by Kamla Devi in favour of Shyam Lali would become redundant and ineffective. Accordingly the trial Court has dismissed the Suit No. 02 of 2010 (Shyam Lali v. Lalji) and has decreed the Suit No. 21 of 2010 (Lalji v. Shyam Lali) in part. 8. Aggrieved by the judgment of the trial Court two appeals were filed by the present appellant and both the appeals have been dismissed by the lower appellate Court upholding the judgment of the trial Court. 9. Once the Will dated 1.6.1994 executed by Mohini Devi in favour of her maternal grand son Lalji has been proved and upheld by both the Courts below and in that Will itself Mohini Devi has rescinded her earlier Will dated 30.11.1990, no valid right or title passes from Mohini Devi to Kamla Devi under the Will dated 30.11.1990 and therefore, the Will dated 29.9.2004 executed by Kamla Devi in favour of the appellant Shyam Lali is rendered a nullity. 10. The findings recorded by the Courts below are findings of fact, which I do not find any good ground for interference with nor it find any perversity in the findings recorded by the Courts below. 11. In both these appeals no substantial question of law arises and both the second appeals are accordingly dismissed.