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2023 DIGILAW 207 (ORI)

Radhakanta Kar v. Sumitra Mahapatra @ Mohanty

2023-11-13

D.DASH

body2023
JUDGMENT D. Dash, J. - The Appellant, by filing this Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, 'the Code'), has assailed the judgment & decree dated 29th February, 2020 and 6th March, 2020 respectively passed by the learned District Judge, Ganjam at Berhampur in R.F.A. No.68 of 2018. The Appellant, as the Plaintiff, had filed Civil Suit No.30 of 2013 in the Court of the learned Additional Senior Civil Judge, Berhampur. The suit was for declaration that the Will dated 19.01.1996 (Ext.X) is valid and has clothed the Appellant (Plaintiff) with the right, title, interest and possession in respect of the suit land covered under said Will to be resting with him. With further prayer to declare the settlement record of right of the year 2004 as illegal and Respondent No.4 (Kedarnath) be declared as not the adopted son of Gobinda Mohapatra and Rajamani Mohapatra. It was further prayed that the alienation made by the Respondents (Defendants) in respect of the suit properties are all void and not binding on the Appellant (Plaintiff) followed by issuance of injunction. The suit, having been dismissed, an Appeal under Section 96 of the Code, being filed, the same has also been dismissed. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit. 3. Plaintiff's case is that the suit properties belonged to one Gobinda Mohapatra, who died leaving behind his widow, Rajamani (Dead) and three daughters, namely, Sumitra, Urmila and Malli, who are the Defendant Nos.1 to 3. The Defendant No.4 is the grandson of Gobinda, being the son of Urmila (Defendant No.l). Gobinda had never adopted Defendant No.4 as his son. The Plaintiff is a relation of the wife of Gobinda, namely, Rajamani. During the life time of Gobinda, he performed the marriage of his three daughters, who wree accordingly staying in other villages. The Defendant No.3 however in view of her separation with her husband is staying at her father's house. After the death of Gobinda, the suit properties were in possession and enjoyment of his widow Rajamani. During the lifetime of Rajamani on account of dissention, a partition had been effected between herself and her three daughters (Defendant Nos.l to 3). The Defendant No.3 however in view of her separation with her husband is staying at her father's house. After the death of Gobinda, the suit properties were in possession and enjoyment of his widow Rajamani. During the lifetime of Rajamani on account of dissention, a partition had been effected between herself and her three daughters (Defendant Nos.l to 3). Due to difference of opinion and family disturbances regarding the partition, the Defendant Nos.2 & 3 executed a deed of relinquishment in favour of Rajamani in respect of their shares over the properties by accepting a sum of Rs.7,500/- each from their mother. Such deed of relinquishment was registered on ll.0l.l993. Therefore, Rajamani became the absolute owner in respect of the shares of Defendant Nos.2 & 3 over and above her own existing share. Rajamani, during her lifetime had never executed any Will bequeathing her properties in favour of anyone nor she had adopted anybody and executed any deed in support of any such adoption. On 23.06.l994, the Defendant No.3 is said to have sworn an affidavit stating that she had no natural brother and that her parents never adopted anyone as their son and that she had no claim over the paternal property. During the lifetime of Rajamani, she however had executed a Will bequeathing the suit properties in favour of the Plaintiff in presence of witnesses, namely, Braja Sundar and Satrughana. The Will had been scribed by one Adikanda. It is further stated that Defendant No.4, taking the advantage of the fact that Rajamani was an illiterate lady, got the suit land recorded jointly in the name of Rajamani and Defendant Nos.l to 4 when Defendant No.4 was not the adopted son of Gunanidhi and Rajamani and that had been falsely so indicated therein. There was no document in support of such adoption nor the adoption had been so made by performance of giving and taking ceremony as mandatorily required under law. The land recorded in the name of Defendants by the Settlement Authorities is thus said to be illegal and void. Rajamani died on 22.l0.l999. In view of the death of Rajamani, the Plaintiff, on the strength of said Will, has become the owner in possession of the suit land. The Defendants when created disturbances in the possession of the suit properties by the Plaintiff, the suit came to be filed. 4. Rajamani died on 22.l0.l999. In view of the death of Rajamani, the Plaintiff, on the strength of said Will, has become the owner in possession of the suit land. The Defendants when created disturbances in the possession of the suit properties by the Plaintiff, the suit came to be filed. 4. The Defendant Nos.l to 3, in their written statement, having stated that the suit properties belonged to their father Gobinda and they are the legal heirs and successors of said Gobinda, have said that Gobinda and Rajamani had adopted Defendant No.4 and, therefore, the Defendant Nos.l to 4 are entitled to the properties of Gobinda. They state that for the adoption of Defendant No.4, ceremony of giving and taking as well as Dutta Homo had been performed. The school records and electoral rolls reveal the sonship of Defendant No.4 in that regard. They claim that the suit properties had been divided between the Defendants and Rajamani in Civil Suit No.l8l of 2004 of the Court of the learned Civil Judge, Junior Division, Berhampur. In that case, Defendant No.4 was held / recognized to be the adopted son of Gobinda and Rajamani. It is also said that the suit properties were not the absolute property of Rajamani. They assert that Rajamani had never executed a Will in favour of the Plaintiff in the year 1993 as is claimed. The Defendant Nos.2 and 3 unknowingly had executed a relinquishment deed and, therefore, said deed was cancelled by executing another deed to that effect. They assert to have not been paid with the sum of Rs.7500/- by Rajamani. On 30.03.1991, dispute having arisen, there took place an oral family partition amongst Rajamani and the Defendants. Rajamani and the Defendant Nos.l to 4 thereafter have sold away several properties to different purchasers on 8.5.2002 and 21.03.2007. The Defendant No.3 had never sworn any affidavit stating that Gobinda and Rajamani had never adopted Defendant No.4 as their son. Since Rajamani was illiterate, the Plaintiff along with his henchmen Braja Sundar, Satrughna and Adikanda have managed to create said Will, which is invalid. They further state that the suit land have been duly mutated in their favour as also the Defendant No.4 and they are possessing the suit land by paying the land revenue to the State. 5. Since Rajamani was illiterate, the Plaintiff along with his henchmen Braja Sundar, Satrughna and Adikanda have managed to create said Will, which is invalid. They further state that the suit land have been duly mutated in their favour as also the Defendant No.4 and they are possessing the suit land by paying the land revenue to the State. 5. The Defendant No.4, in his written statement, having stated that the suit properties originally belonged to Gobinda, has reiterated the averments taken by Defendant Nos.l to 3 in their written statement. His categorical assertion is that he is the adopted son of Gobinda and Rajamani, which finds mention in school records, electoral rolls etc. He has averred the Will in favour of the Plaintiff to be a document obtained by the Plaintiff by playing fraud upon Rajamani, who was an illiterate lady. According to him, the judgment and decree passed in C.S. No.l8l of 2003 are binding on all and the settlement record of right is valid and accordingly, he is in possession of the suit properties. 6. The Trial Court, on the above rival pleadings of the parties, has framed the following issues:- '(i)Whether the suit is maintainable in the eye of law? (ii) Whether there is any cause of action for plaintiff to file the present suit? (iii) Whether the Will in question is valid in law, by which the plaintiff asserted his right over the suit scheduled property? (iv) Whether defendant no.4 is not the adopted son of late Gobinda and Rajamani Mohapatra as alleged by the plaintiff? (v) Whether the settlement ROR in favour of the defendants to the suit schedule properties are not valid and liable to be concealed? (vi) Whether the alienations by the defendants along with late Rajamani Mohapatra are illegal and void? (vii) Whether the defendants are required to be permanently restrained not to interfere in the peaceful possession and enjoyment of the suit schedule properties by the plaintiff? (viii) Whether the suit is bad for non-joinder of parties? and (ix) To what relief?' 7. First of all, taking up issue no.(i) as to the Will projected by the Plaintiff to be the document by which he claims to have the title over the properties involved in the suit, the evidence let in by the parties have been gone through. and (ix) To what relief?' 7. First of all, taking up issue no.(i) as to the Will projected by the Plaintiff to be the document by which he claims to have the title over the properties involved in the suit, the evidence let in by the parties have been gone through. On discussion of the evidence and their evaluation, ultimately, the finding has been returned against the Plaintiff in saying that the Will has not been duly proved in accordance with law. Then, coming to issue no.(iv), which is in respect of the adoption of Defendant No.4 by Gobinda and Rajamani, again on assessment of evidence, it has been said that the Plaintiff, being a stranger to the family, has no say over the said question of adoption as projected by the Defendant Nos.l to 4. That is mainly based on the finding that when the Will projected by him has been refused to be given effect to, that puts him nowhere in the scenario. The issue relating to the validity of the settlement record of right has accordingly been decided against the Plaintiff and the other issue regarding the alienation has also been answered in the same light. 8. The Plaintiff thus being non-suited, having carried the First Appeal, the First Appellate Court, on independent appreciation of evidence at its level, has affirmed all the above findings returned by the Trial court. The First Appeal has accordingly been dismissed. Hence, the instant Second Appeal is at the instance of the Plaintiff, who has been non-suited by the Courts below. 9. The Second Appeal has been admitted to answer the following substantial question of law:- 'Whether the courts below have erred by ignoring the registered Will executed by Rajamani Mohapatra in favour of Plaintiff (Ext.X.) holding that the beneficiary under the Will has failed to prove its due execution in further concluding that the Will being surrounded by suspicious circumstances does not call for acceptance in the eye of law so as to be given due account as those suspicious circumstances have not been removed through clear, cogent and acceptable evidence being so let in by the Beneficiary?' 10. Mr. Mr. S.P. Mishra, learned Senior Counsel for the Appellant (Plaintiff) submitted that the Courts below while rendering the finding against due execution of the Will (Ext.X) by Rajamani and its attestation as required under law have been oblivious of the overwhelming evidence let in by the Plaintiff, who is the beneficiary under the so-called Will. He submitted that when admittedly one attesting witness was dead and the other one who was living did not turn up despite summon and thereafter died during the suit, the evidence of the scribe of the Will, P.W.4, which is free from any such infirmity ought to have been accepted as enough to prove due execution and valid attestation as required under section 63 of the Indian Succession Act read with section 68 of the Evidence Act. He further submitted that the circumstances taken into account by the Courts below to be suspicious circumstances surrounding the Will are not at all such, and, therefore, the Plaintiff having not provided any the explanation by leading evidence to remove such suspicion ought not to have been said to be standing to adversely view the Will (Ext.X), its execution and attestation, moreso when the Will (Ext.X) is a registered one. He, therefore, submitted that the Courts below ought to have decreed the suit of the Plaintiff declaring his right, title and interest over the suit property and confirm his possession over the same being the rightful owner on the strength of the Will dated 19.01.1993. 11. Mr. S. Mohanty, learned counsel for the Respondent Nos.1, 2 and 4 (Defendant No.1, 2 and 4) submitted all in favour of the findings returned by the Courts below. According to him, the concurrent finding of fact by the Courts below when are based on sound appreciation of evidence let in by the parties and testing those in the touchstone of the settled position of law and as there surfaces no perversity therein; it would not be permissible for this Court in seisin of the Second Appeal to tinker with the same. Inviting the attention of the Court to the discussion of evidence as has been made by the Trial Court as well as the First Appellate, he placed as to how those are well founded. 12. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. Inviting the attention of the Court to the discussion of evidence as has been made by the Trial Court as well as the First Appellate, he placed as to how those are well founded. 12. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also perused the plaint, written statement and have gone through the evidence, both oral and documentary, let in by the parties. 13. The Plaintiff's claim of declaration of right, title and interest over the suit land and confirmation of his possession derives its foundation from the Will (Ext.X) purported to have been executed by Rajamani. The Will is said to have been executed by Rajamani on 30.01.1993. 14. It is the settled position of law that the mode of proving a Will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in case of a Will by Section 63 of the Indian Succession Act read with section 68 of the Evidence Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of Will, proof of testamentary capacity and the signature of the testator/testatrix, as required by law is sufficient to discharge the onus. However, when there surfaces the suspicious circumstances surrounding the Will, the onus is on the propounder to explain those to the satisfaction of the court for acceptance of the Will as genuine. Even where circumstances giving rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to the genuineness of the signature of the testators/testatrix, the condition of the mind of the testator/testatrix, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the Will so as to say that the mind of the testator/testatrix was not free. In such a case the Court would naturally expect that all legitimate suspicions should be completely removed before the Will is accepted as the last one of the testator/testatrix. In such a case the Court would naturally expect that all legitimate suspicions should be completely removed before the Will is accepted as the last one of the testator/testatrix. If the propounder himself takes a prominent part in execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account and the propounder is required to remove the doubts by clear and satisfactory evidence. Only when the propounder succeeds in removing the suspicious circumstances, the court would accept the Will even if the Will might be unnatural and might cut off wholly or in part, the near relations. While proving the attestation of the Will as mandatorily required under the law, the propounder is to tender the evidence in support of the same by examining at least one of the two attesting witnesses. But where the attesting witnesses are dead, that part of the evidence could be made good of by tendering the evidence of the scribe of the Will or any other associated in the process of making of the Will although the evidence of the scribe would not have been or is not the substitute of evidence of the attesting witnesses if anyone of them is alive to depose on the factum of attestation. In the present case one of the two attesting witnesses was dead before the suit and the other one died during the suit. The said surviving attesting witness had not appeared on being noticed. But the fact remains that the Plaintiff had not taken any further step in securing the presence of that attesting witness who was alive resorting to the provisions contained in Order 16 Rule 10 of the Code, although his evidence is primary evidence as to the factum of attestation. When the party is ordained under the law to prove the factum of attestation by leading clear, cogent and satisfactory evidence, it is not enough to be relieved of such obligation when that attesting witness being once noticed fails to appear to depose in saying that the legal requirements thereby stand satisfied. When the party is ordained under the law to prove the factum of attestation by leading clear, cogent and satisfactory evidence, it is not enough to be relieved of such obligation when that attesting witness being once noticed fails to appear to depose in saying that the legal requirements thereby stand satisfied. The law does not relieve the party of the said obligation by simply making a statement that the said attesting witness is not turning up to his call which rather, in my considered view, calls for drawal of an adverse inference that had that attesting witness come to the witness box, he would not have supported the factum of attestation which was not true and which had not happened but stage managed with mere paper work. This is evident from the fact that the surviving attesting witness once being sent with the notice, it was not seriously further pursued as per law. In such a situation, the evidence of the scribe would not be the substitute of proof of the factum attestandi which is mandatorily required to be shown through primary evidence. Therefore, in the present case, it has to be held that the attestation of the Will has not been proved as mandatorily required under law and the Plaintiff cannot be relieved of the said legal obligation by tendering the evidence of the scribe (P.W.5). Even after having said as above, when the evidence of the scribe of the Will (P.W.5) is gone through, it is seen that he has stated that he had scribed the Will on 19.01.1993 as per the instruction of Rajamani in presence of two attesting witnesses, namely, Braja Sundar Mohapatra and Satrughan Mohanty. Son of Braja Sundar Mohapatra has been examined as P.W.4 who has proved the signature of Braja Sundar on the Will (Ext.X). It has been stated by P.W.5 that he prepared the Will read over and explained the contents to the Will to Rajamani who admitted the same as correct and then put LTI and thereafter, the two attesting witnesses signed. He is silent as to how Braja Sundar and Satrughan had arrived there. It is not stated whether they had gone with Rajamani or were called by Rajamani later or were sitting with P.W.5. He is silent as to how Braja Sundar and Satrughan had arrived there. It is not stated whether they had gone with Rajamani or were called by Rajamani later or were sitting with P.W.5. While stating that he had been read over and explained the contents of the Will to the executant who admitted the same to be correct and then put LTI, he is not specific in saying that when he was explaining the contents to the executant, the attesting witnesses were present and in their presence Rajamani admitted the contents to have been truly and correctly written as per her instruction. When the fact remains that the Will is said to have been executed on 19.01.1993, it has been registered on 01.02.1993. The scribe (P.W.4) when is saying that the Will was duly registered is, however, is not saying as to in whose custody that Will remained from 19.01.1993 to 01.02.1993. He, however states as under:- 'That after registration of the above document, thereafter after few dues after getting the said registered Will, I handed over the said registered Willnama to Smt. Rajamani, the executant.' This P.W.4 is also not stating as to where he scribed the Will; whether it was in the house of the executant or in his work place or somewhere else. When he states that that after registration of the Will, the Will was obtained by him and he kept it with him for some days till its delivery to Rajamani, he is not stating as to for what reason the registration was not done on 19.01.1993 and what happened that it was registered on 01.02.1993. He is also silent as regards the events which took place on 01.02.1993 and most importantly, whether on 01.02.1993 Rajamani came and handed over the Will requesting him to get it registered, it is not stated by P.W.4 who also does not state as to whether on 01.02.1993 the attesting witnesses had come with Rajamani or were present before or arrived later when he, however, states that the attesting witnesses, Rajamani and the Plaintiff (beneficiary of the Will) were present at the SubRegistrar's Office at the time of registration of the Will. All these certainly appear to be suspicious circumstances surrounding the Will. All these certainly appear to be suspicious circumstances surrounding the Will. That apart the evidence of P.W.4 as tendered in view of all these above is not in support of due execution and attestation of the Will. The other circumstance is that Rajamani by the said Will excluded her own daughters and deprive them of their property. That itself even though is not suspicious but with the above narrated circumstances which appear to be suspicious, the said circumstance certainly get up to stand as a suspicious circumstance. For the all the aforesaid, the substantial question of law stands answered against the Plaintiff, which results in confirming the judgments and decrees passed by the Courts below. 15. In the result, the Appeal stands dismissed. There shall, however, be no order as to cost.