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2022 DIGILAW 1347 (MP)

Fulva, D/o Late Manohar Teli v. Kemlapati D/o Late Manohar Teli

2022-11-11

ATUL SREEDHARAN

body2022
JUDGMENT 1. The present appeal has been preferred by the appellants herein who are aggrieved by the judgment and decree dated 14.01.2020 passed by the IVth Additional District Judge, Waidhan, District-Singrauli in RCA No.25/2019, whereby the said appeal was dismissed and thereby confirmed the judgment and decree dated 15.05.2018 passed by the IInd Additional Judge to the First Civil Judge, Class-I, Waidhan, District-Singrauli in Civil Suit No.16A/2013. 2. The appellants have suffered the concurrent findings on facts and laws of the learned trial Court and the First Appellate Court. The brief facts of this case are as follows. The land was originally owned by one Manohar Teli. He had five daughters. They are Fulva, who was plaintiff no.1, Rajmanti, who was plaintiff no.2, Kemlapati who was defendant no.1 and the respondent no.1 herein, Budhani, who was defendant no.2 and the respondent no.2 herein and Sumari who was defendant no.3 and the respondent no.3 herein. Manohar Teli had 4.041 hectares of land in village Gahilgarh bearing survey no.2/2, 141, 142, 143, 348/2, 351, 350 and 405 in village Gahilgarh West. After the death of Manohar Teli his wife, being the mother of the contesting parties, continued to cultivate the land. After some time, she too died and thereafter the plaintiffs and the respondent no.1, 2 and 3 started cultivating the property jointly, such is the case of the plaintiffs. 3. The cultivation was being done by taking a share of 1/5th of each daughter. It is further the case of the plaintiffs that as each of them were staying in the respective in-laws house and defendant no.1/respondent no.1 herein Kemlapati was residing on the said suit property, she was carrying out the cultivation on the said land and when the plaintiffs asked for their respective shares of the agricultural produce, the respondent no.1 is stated to have informed them that in the revenue record her name has been mutated and therefore, she refused to give plaintiffs' share in the agricultural produce from the said property. In order to protect their rights, the appellants herein filed the aforementioned civil suit for declaration of title, permanent injunction, partition and possession. The respondent no.1 was claiming her right on the said property pursuant to a Will dated 05.07.1981 executed by Manohar Teli in favour of only the respondent no.1 Kemlapati. In order to protect their rights, the appellants herein filed the aforementioned civil suit for declaration of title, permanent injunction, partition and possession. The respondent no.1 was claiming her right on the said property pursuant to a Will dated 05.07.1981 executed by Manohar Teli in favour of only the respondent no.1 Kemlapati. The testator Manohar Teli died on 28.10.1981 more than three months after executing the Will. The said Will, according to the plaintiffs/appellants herein, is a fabricated Will. The trial Court and the First Appellate Court believed the Will to be genuine and thereafter dismissed the civil suit filed by the appellants and the First Appeal. 4. Learned counsel for the appellants has drawn the attention of this Court to section 63 of the Indian Succession Act, 1925 (Hereinafter referred to as 'the Act of 1925'). Section 63 of the Act of 1925 lays down the mandatory requisites of a Will. As per section 63 of the Act of 1925, the Will was required to be signed by the testator or his mark affixed. The signature or the mark of the testator shall be so placed on the instrument that it appears it was intended thereby the testator to give effect to writing as a Will and lastly the Will had to be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will in the presence and by the direction of the testator. 5. Learned counsel for the appellant has also referred to two judgments of the Supreme Court which shall be referred to hereinafter laying down the facts relating to the disputed Will. 6. Learned counsel for the appellants has drawn the attention of this Court to the statement of DW-2 and DW-3, who are the witnesses for the defendants and also the alleged attesting witness of the Will. Specific reference has been made to paragraph-7 of DW-2 Ram Vichare, wherein he has stated that it is correct to suggest that the suit property are the ancestral property of Manohar Teli, the testator. Similarly, learned counsel for the appellants has referred to paragraph-6 of the statement of DW-3 Ramashankar, who has stated in his cross-examination that the property in village Gahilgarh West devolved upon the testator Manohar Teli as an ancestral property. Similarly, learned counsel for the appellants has referred to paragraph-6 of the statement of DW-3 Ramashankar, who has stated in his cross-examination that the property in village Gahilgarh West devolved upon the testator Manohar Teli as an ancestral property. Thus, on the basis of these statements in cross-examination of DW-2 and DW-3, learned counsel for the appellants has impressed upon this Court that the testimony of defendants own witnesses reveal that the property that was willed away to the respondent no.1 was not self-acquired but ancestral property of Manohar Teli and, therefore, the same could not have been willed away exclusively to the respondent no.1 and the other sisters also had a share. 7. He has thereafter referred to a Will, which is Ex.D15, executed by Manohar Teli attested by Ram Vichore. The attesting witnesses are Ramji and Ram Vichare. The contents of the Will clearly state that the suit properties have been willed away exclusively to respondent no.1. The reason given in the said Will as to why the said property has been willed exclusively to respondent no.1 is that out of the five daughters who had all got married, four of them were residing continuously with their in-laws and it was only respondent no.1 who despite being married stayed with the testator and his wife, looked after them and served them. Therefore, out of affection and in repayment of the kindness and care shown by respondent no.1, the testator has willed away the entire suit property exclusively to respondent no.1. Here it is relevant to mention that Ram Vichare, who is the attesting witness to the Will, has been examined as D.W.2. He has categorically stated in paragraph no.3 of his examination-in-chief that in view of the services rendered by respondent no.1, the testator executed a Will in the year 1981 which was prepared in the office of advocate Lal Gajmochan Singh and after the will was written down the advocate read out the contents after which the testator affixed his thumb impression and as witnesses, Ram Vichare (D.W.2) and Ramji Sahu signed the document. The testator further says that as he is not educated, he affixed his thumb impression. In cross- examination, nothing has been brought out from these witnesses which could render that part of their statements-in-chief doubtful with regard to them being the witnesses to the execution of the Will. 8. The testator further says that as he is not educated, he affixed his thumb impression. In cross- examination, nothing has been brought out from these witnesses which could render that part of their statements-in-chief doubtful with regard to them being the witnesses to the execution of the Will. 8. Learned counsel for the appellants has argued that a Will is rendered suspicious where the same, instead of apportioning the property amongst the various heirs, exclusively gives the entire property to only one of them. In this regard, he has drawn the attention of this court to the judgment of the Supreme Court reported in Ram Piari v. Bhagwant and others (1990) 3 SCC 364 where the Supreme Court observed that although the freedom to bequeath one's own property is absolute amongst the Hindus, which may even include a rank stranger, but the same could only be done if the testator had the capacity or a disposing state of mind required to establish that the testator at the time of disposition, knew and understood the property he was disposing and the persons who were to be the beneficiaries of his disposition. However, the facts of that case are peculiar. In that case, the testator died one day after executing his Will. Secondly, there was no finding recorded that the daughter who had challenged the Will had any kind of sour or bad relations with the testator that compelled the testator to Will away his entire property to the sons of the other daughter with whom he was residing. Thirdly, the most important factor in that case was that even though the testator could sign, he only put his thumb impression on the Will. 9. The facts-circumstances in the case under judgment are totally different. Here, the testator lived for more than three and a half months after executing the Will. Secondly, though the material on record does not reflect any sour or bad relations with the plaintiffs and the other sisters of the plaintiffs, but the Will discloses that the entire property was being willed away to respondent no.1 because even after she got married she stayed with the testator and his wife and looked after them and their creature comforts while the plaintiffs and the other sisters did not do so. Thus, from a reading of the Will it appears that though there was no animosity against the plaintiff and the other sisters, there was adequate reason to have greater affection and proximity to respondent no.1. Fourthly, the Will has not been disputed as not bearing the signature of the testator. Under the circumstances, the aforementioned judgment of the Supreme Court will not be applicable in the facts-circumstances of this case. 10. The second judgment referred to by the learned counsel for the appellants is reported in Lakshmi Amma and another v. Talengala Narayana Bhatta and another AIR 1970 SC 1367 . That was a case, where a deed of settlement executed by the testator settled the entire property of the testator in favour of one of the grandsons and thereby excluding his own issues and other grandchildren. The said document also made negligible provision for the wife, who was his third wife whom he married after the first two having died. The settlement deed did not make any provision regarding her right to reside in the residential house till her death. It also held that the executant himself was debarred from dealing with property as an owner during his lifetime as he was found to be of advanced age and in state of senility and suffering from diabetes and other ailments, which the Supreme Court held was circumstances raising grave suspicion leading to the execution of the deed. 11. In this case, none of those factors are present. There is no allegation or any material shown that the testator was not in a fit state of body or mind when he executed the Will. This assumes relevance in the backdrop of the fact that the testator had passed away more than three and a half months after executing the Will. There is no material brought on record or any allegation to the effect that the testator suffered from senility or such other ailment of body or mind that would have raised a shroud of suspicion against the Will. Thus, the second judgment placed before this court by the learned counsel for the appellants also is not relevant. 12. There is no material brought on record or any allegation to the effect that the testator suffered from senility or such other ailment of body or mind that would have raised a shroud of suspicion against the Will. Thus, the second judgment placed before this court by the learned counsel for the appellants also is not relevant. 12. As regards the advertence to the statements of Ram Vichare (D.W.2) and Rama Shankar Sahu (D.W.3) to that part of the testimony where they state that the property of the testator was ancestral in nature does not assume significance as they are bald statements. Such a statement to be relevant and to be taken cognizance of must at least disclose how the said property was ancestral and not self-acquired. It must come on record that the properties that were willed away by Manohar Teli actually belonged to his father or his grandfather from whom he had received in inheritance. Such evidence is not forthcoming and therefore the mere statements of Ram Vichare (D.W.2) and Rama Shankar Sahu (D.W.3) to that effect are inadequate. In fact, some of the plaintiff-witnesses themselves have stated in their testimonies that the suit properties that have been willed away are the self-acquired properties of Manohar Teli. 13. Under the circumstances, there is inadequate material on record for this court to arrive at a finding that the suit properties were the ancestral properties of Manohar Teli and, therefore, not amenable to be disposed of by way of a Will. 14. In view of what has been argued, discussed and considered by this court herein above, no substantial question of law arises for consideration and the orders passed by the learned courts below cannot be said to be perverse and not based on the record of the case and, therefore, this second appeal is dismissed.