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2017 DIGILAW 1751 (ALL)

NIRMAL KUMAR v. AWADH BEHARI

2017-07-31

SIDDHARTHA VARMA

body2017
JUDGMENT Hon’ble Siddhartha Varma, J.—This is a defendant’s second appeal against the judgement and decree dated 29.7.1985 passed by the Civil Judge, Ballia, in First Appeal No. 45 of 1983 whereby the appeal of the plaintiff respondent against the judgement and decree dated 17.1.1983 in Original Suit No. 340 of 1981 was allowed and the suit was decreed. 2. Briefly stated, facts of the case are that the predecessor in interest of the plaintiff Mahaveer, who had five sons, had various properties which included the property in question. The pedigree of the family of Mahaveer is reproduced here as under: Mahaveer Singh Hari Prasad Chhotey Lal Madhuban Prasad Ram Chandra Prasad Mahadev Prasad Bela Kunwari (wife) Badri Narain Dwarika Kanhaiya Lal Panna Lal Ghanshyam Das Awadh Bihari Poonam Chand Jagat Narain UdhauJi 3. Three out of the five sons of Mahaveer, namely, Chhotey Lal, Maduban Prasad and Mahadev Prasad died issue-less. Hari Prasad had three sons, namely, Badri Narain, Dwarika, and Kanhaiya Lal, whereas Ram Chandra Prasad had six sons, namely, Panna Lal, Ghanshyam Das, Awadh Bihari, Poonam Chand, Jagat Narain and Udhau Ji. After partition took place in the family, it is alleged, that the house in question fell in the share of the plaintiffs i.e. in the share of Awadh Bihari and his sons. As per the plaint allegation Smt. Bela Kunwari, the widow of Chhote Lal the uncle of the plaintiff No. 1 and the grand-uncle of the plaintiff Nos. 2, 3, 4 and 5 was given life interest by way of maintenance in the property in question by the joint family. Further allegation was that after the widow died, the ownership of the property in question reverted to the plaintiffs and they became absolute owners of the property in question. However, as Bela Kunwari had inducted the defendant as a licensee, after her death, the plaintiffs had also permitted the defendant to continue as licensee and when the plaintiffs required the house in question for their own living they cancelled the license and gave the defendant a notice for eviction. When the defendants did not vacate the premises the plaintiffs filed the suit in question which was numbered as Suit No. 340 of 1981 for the relief of eviction and for damages. When the defendants did not vacate the premises the plaintiffs filed the suit in question which was numbered as Suit No. 340 of 1981 for the relief of eviction and for damages. The defendant contested the suit and alleged that he was not a licensee but was an absolute owner in as much as Bela kunwari who herself was an absolute owner of the property in question after the death of her husband, willed the property on 6.5.1973 to the father of defendant/appellant, Sri Damrilal Agarwala. Upon the death of Damrilal Agarwala, the property was inherited by the appellant/defendant being the son and the natural heir of Damrilal Agarwala. 4. The trial Court dismissed the suit and found that Bela Kunwari as per Section 14 (1) of the Hindu Succession Act, 1956, became the absolute owner of the property and on 6.5.1973 she could have willed the property in question to the father of the defendant Sri Damrilal Agarwala. The trial Court on the basis of the testimony of D.W. 1 Badrinarain who was the attesting witness of the will and of D.W. 3 Vashisht Muni who was the scribe of the will found that the will was a genuine one and upon the death of Bela Kunwari the property was inherited by the defendant’s father and thereafter by the defendant. 5. The First Appellate Court in Appeal No. 45 of 1983, though found that Bela Kunwari was the absolute owner of the property in question did not agree with the finding of the trial Court regarding the will dated 6.5.1973 that it was a genuine will and after finding that it was forged decreed the suit. 6. The Second Appeal has been filed against the judgement and decree dated 24.7.1985 and was admitted on the following question of law. (1) Whether the receipt of 1945 relied upon by the plaintiff and disputed and denied by the defendant could be presumed to be correct without formal proof? If not, its effect. 7. Learned counsel for the appellant submitted that the lower Appellate Court while doubting the signature of Bela Kunwari on the will dated 6.5.1973 had wrongly placed reliance upon the signature on the maintenance receipt of 1945. If not, its effect. 7. Learned counsel for the appellant submitted that the lower Appellate Court while doubting the signature of Bela Kunwari on the will dated 6.5.1973 had wrongly placed reliance upon the signature on the maintenance receipt of 1945. He has submitted that the signature on the 1945 document was not admitted by the appellant/defendant and as per Section 73 of the Indian Evidence Act the verification of a signature, writing, or seal could be done only by a signature which was admitted by the parties. The signature on the 1945 document was not an admitted one. Comparison of signature on the 1945 document with the signature on the will dated 6.5.1973 was thus an exercise in futility. Further more, the appellant’s counsel submitted that the will was signed on 6.5.1973 whereas the signature on the document by which a comparison was being sought to be done was of the year 1945 i.e. a comparison was sought with a document which was admittedly 28 years prior to the execution of the will. In such circumstances, discrepancies were bound to creep in due to flux of time. He drew the attention of the Court to a judgement dated 10.11.2006 of this Court delivered in Late Sahu Basheshwar Dayal S/o Late Sahu Banshidhar and Smt. Bina Gupta W/o Sri C.M. Gupta v. Smt. Kumkum Mittal and others Specific reliance has been placed on paragraph 33 of the judgement which is being reproduced here as under : “In the present case both the experts have contradicted each other and have given their reasons in support of the respective opinions. The signatures in the bank specimen were made by the deceased in the year 1976 long before the will was executed on 1.4.1993, when the deceased was 82 years old. There may be some dissimilarities in the signatures made by an old person executing the will with the signatures made by him on the bank specimen cards many years ago. The Court, therefore, does not propose to rely upon the experts of either of the parties on the ground that they do not hold any qualification as hand writing expert to be treated as expert in their field, and that direct evidence of witness of the proof the signatures made by the testator is available on record.” 8. The Court, therefore, does not propose to rely upon the experts of either of the parties on the ground that they do not hold any qualification as hand writing expert to be treated as expert in their field, and that direct evidence of witness of the proof the signatures made by the testator is available on record.” 8. Still further, the submission of the learned counsel for the appellant was that when after application of Section 90 of the Evidence Act, the First Appellate Court was comparing the signatures on the 1945 document with that on the will of 1973 then it should have actually seen if the exercise would serve any useful purpose. The First Appellate Court, though had mentioned that it had looked into the document of 1945 and had compared the signatures on it with the signatures on the 1973 will by naked eyes and had found that the two signatures on the two documents were different, had definitely failed to see that the document of 1945 had two different signatures of the executant which were spelt as ^^cSykeqlekr** ,oa ^^osbykeqLekr** . Which of the signatures was considered by the First Appellate Court is not clear. The counsel for the appellant had obtained the certified copies of the 1945 document and had thereafter emphatically made the submission. He, thereafter, submitted that the approach of the Trial Court was correct as it had found that the execution of the will was proved as per Section 68 of the Evidence Act as the attesting witness Sri Badri Narain and the scribe of the will Sri Vashist Muni who were alive at that point of time had actually proved the will as genuine. He submitted that the execution of a document is not complete by just putting a signature on it. If the execution of a document is to be proved then it has to be proved that the document was read over by the executant. He or she had understood the same and had not just signed on a blank paper. Therefore, when the execution of the will was being proved, it was only in the fitness of things that the attesting witness and the scribe of it proved the actual execution of it. He or she had understood the same and had not just signed on a blank paper. Therefore, when the execution of the will was being proved, it was only in the fitness of things that the attesting witness and the scribe of it proved the actual execution of it. The learned counsel further stated that even if the signature was proved to be correct, it would not have meant that the due execution of the document was proved. To bolster his argument, learned counsel relied on Ch. Birbal Singh v. Harphool Khan and another, AIR 1976 All 23 and specifically relied upon a certain portion of paragraph 7 of the judgment which is being reproduced here as under : Before proceeding further it may be considered as to what the word “ execution” signifies. In Shaikh Ebadut Ali v. Mahammad Fareed, 35 Ind Case 56 : (AIR 1916 Pat 206) it was held that the word “execution” consists in signing a document written out, read over and understood and does not consist of merely signing a blank paper. The same view was taken in the cases of Mirza Gorganj v. Bhola Mal Nibalchand, (AIR 1934 Lah 293 (2)) and Pirbhu Dayal v. Tula Ram, (AIR 1922 All 401 (2)). 9. Therefore, he submits that the First Appellate Court had misdirected itself in only considering as to whether the signature on the will was that of Bela Kunwari. 10. In reply, learned counsel for the answering respondents heavily relied on Section 90 of the Indian Evidence Act and submitted that a document which was more than 20 years old and was produced from the custody of a person from whom the document should have come then it had to be considered a duly executed document and has relied upon State of U.P. v. Thakur Sri Radha Ramanji Maharaj, AIR 2011 (8) ADJ 684 and Smt. Dayamathi Bai v. K.M. Shaffi, AIR (2004) SC 4082 and has further submitted that the finding regarding the fact that the will was a forged one is a definite finding of fact and the Second Appellate Court should not interfere with it. 11. 11. Having heard the learned counsel for the parties and having perused the record of the case, I find that the First Appellate Court fell in error when it considered the document of 1945 as an admitted document and compared the signatures of Bela Kunwari on it with her signatures on the will dated 6.5.1973. The defendant had not admitted the document of 1945 as a genuine document and had also not admitted that the signatures on it were of Bela Kunwari. Even if the document was taken to be a document which was proved as per Section 90 of the Evidence Act, this Court finds it difficult to accept the approach of the First Appellate Court specially when an attesting witness of the will had testified and actually proved the execution of the will as per Section 68 of the Indian Evidence Act. The two documents of 1945 and 1973 were separated by a time gap of 28 years. Admittedly when in 1945, the document was signed, the executor must have been a young person and after 28 years the executor definitely must have aged. As and when a person ages, hand writing changes and it is, therefore, definitely not very wise to compare signature on documents the execution of which had a time gap of 28 years. Further more, if the First Appellate Court had tried to compare the signatures by naked eyes on the two documents then it should have also seen that there were two signatures of Bela Kunwari on the 1945 document. Which of the two signatures on the 1945 document was used to compare the signatures on the will by the First Appellate Court is not clear from the judgement. Thus, the only reliable and credible evidence was the evidence of the attesting witness and of the scribe who actually proved the execution of the will. 12. Under such circumstances, I hold that the will was a genuine document and, therefore, the finding as has been arrived at regarding the spuriousness of the will by the First Appellate Court can very safely be termed as perverse. Normally a Second Appellate Court does not reverse a finding of fact but in cases where it finds that the findings are absolutely perverse and that they have been arrived at because of a wrong appraisal of evidence then the findings can be reversed. Normally a Second Appellate Court does not reverse a finding of fact but in cases where it finds that the findings are absolutely perverse and that they have been arrived at because of a wrong appraisal of evidence then the findings can be reversed. The Supreme Court in Hafazat Hussain s/o Mubarak Hussain v. Abdul Majeed s/o Wali Mohd. Alias Sheikh Ballan and others, AIR 2001 (7) SCC 189 ; Dinesh Kumar v. Yusuf Ali, AIR 2010 SC 2679 and this Court in Jhuri Singh v. Ram Kumar Singh and another, AIR 2002 (2) ARC 214 , have laid down that in the event of there being perversity in the findings of the First Appellate Court, the Court while decreeing a second appeal can, after reappraisal of evidence, substitute its findings. Paragraph 25 of Dinesh Kumar v. Yusuf Ali, AIR 2010 SC 2679 would be very relevant and is being reproduced here as under : 25. Thus, the law on the subject emerges to the effect that Second Appeal under Section 100 CPC is maintainable basically on a substantial question of law and not on facts. However, if the High Court comes to the conclusion that the evidence on record recorded by the Courts below are perverse being based on no evidence or based on irrelevant material, the appeal can be entertained and it is permissible for the Court to reappreciate the evidence. The landlord is the best Judge of his need, however, it should be real, genuine and the need may not be a pretext to evict the tenant only for increasing the rent. 13. In this case, there was in existence the testimony of the attesting witness and that of the scribe who had proved the execution of the will to the hilt and as there was no other document by which the signatures of Bela Kunwari on the will could have been compared with, the finding as had been arrived at by the trial Court was correct. 14. The judgement and decree of the First Appellate Court is set aside. The question of law as had been framed at the time of admission is, accordingly, answered and the Second Appeal is allowed and the suit is dismissed.