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Madhya Pradesh High Court · body

2023 DIGILAW 405 (MP)

Deepak Sharma v. Saroj Bala Tiwari

2023-03-23

SUNITA YADAV

body2023
JUDGMENT 1. Present first appeal under Sec. 96 of C.P.C. has been filed against the judgment and decree dtd. 27/8/1998 passed by Fifth Additional District Judge Gwalior, District Gwalior (M.P.) in Civil Suit No.13A/1994 whereby, the civil suit filed by the respondent-plaintiff for declaration, partition and permanent injunction has been decreed. 2. For the sake of convenience, hereinafter, the respondent no.1 will be referred to as the plaintiff, respondent no.2- as defendant no.1 and respondents no. 3 to 14 as defendants no.2 to 13. 3. The relevant facts to decide the appeal are that the plaintiff filed a suit for declaration, partition and permanent injunction in respect to suit house bearing no.25/433 situated at Loko-shed, Tansen Road, Gwalior (M.P.) against the appellant, and other defendants on the allegations. It is alleged in the plaint that deceased Shyamlal was the owner of the suit house. Deceased Shyamlal's daughters are plaintiff and defendant no.1. Shyamlal died on 30/10/1993, therefore, plaintiff- Smt. Sarojbala Tiwari and defendant no.1- Sushila Sharma being the daughter of deceased became successors. Plaintiff - Smt. Sarojbala Tiwari and defendant no.1- Sushila Sharma have equal share i.e. 1/2 each. Deceased Shyamlal did not execute any Will or sale-deed in respect to the suit house. Appellant/defendant no.14 has been receiving the rent from the tenants unlawfully and making obstructions in use of the house. The rent of total accommodation is near about Rs.3490.00 per month. When the plaintiff told the defendant no.1 for partition, she refused for it. In these circumstances, the plaint has been filed for partition and permanent injunction. 4. The defendant no.1 and defendant no.14 filed their separate written statements. The defendant no.14 denied the claim of plaintiff in his written statement and alleged that he was brought up by deceased Shyamlal who had love and affection with him like a son. Deceased Shyamlal in his life time, executed a Will dtd. 27/07/1993 by which 1/3rd share in the house was given to the defendant no.14 on the basis of Will. After the death of Shyamlal, defendant no.14 became co-owner with the plaintiff and defendant no.1 have 1/3rd share in the suit house. It is further pleaded in the written statement that the names of tenants those have been arrayed as defendants no.2 to 13 are not tenants and only eight tenants are in the suit house. The figure of rent as mentioned in the plaint is wrong. It is further pleaded in the written statement that the names of tenants those have been arrayed as defendants no.2 to 13 are not tenants and only eight tenants are in the suit house. The figure of rent as mentioned in the plaint is wrong. The plaintiff suit being false and frivolous deserves to be dismissed with cost. 5. The defendant no.1- Sushila Sharma in her written statement admitted that the suit house was owned by late Shyamlal who was the father of plaintiff and herself. She has further admitted in her plaint that she alongwith plaintiff have equal share i.e. 1/2 each in the suit house. However, she denied having received the rent from the tenants. The defendant no.1- Smt. Sushila has also pleaded that the defendant no.14 is unnecessary party in the suit. 6. The learned trial Court on the pleadings of the parties framed six issues which reads as under; (i) Whether, the suit house is of the coownership of plaintiff and defendant no.1? (ii) Whether, tenants defendants no.2 to 13 are tenant in the suit house from whom defendant no.1 has been receiving rent to the tune of Rs.3490.00 per month as such plaintiff is entitled to get half share of the rent from the defendant no.1? (iii) Whether, the plaintiff is entitled to get house in dispute partitioned half share i.e. 1/2 by mets and bounds? (iv) Whether, deceased Shyamlal in his life time executed Will on 27/7/1993 to the extent of 1/3 share in favour of Appellant/Defendant no.14? (v) Whether, Suit has been filed with the collusion of plaintiff and defendant no.1 therefore is not maintainable? (vi) Relief and cost? 7. After recording of evidence of the parties and hearing them, the learned trial Court decreed the suit by the impugned judgment and decree. 8. Learned counsel for the appellant argued that the impugned judgment and decree passed by learned trial Court is against the law. The learned trial Court committed serious error of law in holding that plaintiff having 1/2 share in the suit house, therefore, entitle to get partition of the suit house to extend of her share. It is further argued that the findings of the learned trial Court on these issue are perverse, illegal and contrary to evidence on record. The execution of Will dtd. It is further argued that the findings of the learned trial Court on these issue are perverse, illegal and contrary to evidence on record. The execution of Will dtd. 27/7/1993 has been duly proved and it has also been duly established beyond any doubt and suspicion. There is no rebuttal on the part of the plaintiff. Thus, the trial Court ought to be have held that the Will is genuine deed. Further argument is that all the reasons cited by learned trial Court for disbelieving the Will are perverse and against the evidence on record. The findings given on issue no.1 and other issues are perverse, illegal and against the evidence, therefore, the appeal be allowed and the impugned judgment and decree be set aside and appellant be granted 1/3rd share in the suit house. 9. Learned counsel for the appellant cited the case law of Swarnalatha and Ors. Vs. Kalavathy and Ors. [ 2023 (1) RN 81 ] & M. Chinnasamy Vs. K.C. Palanisamy, [ 2004(6) SCC 341 ] to buttress his arguments. 10. On the other hand, learned counsel for respondents opposed the appeal and argued that the impugned judgment and decree passed by learned trial Court is in accordance to law and present appeal deserves to be dismissed. 11. Heard learned counsel for the rival parties and perused the available record. 12. On perusal of record reveals that the plaintiff examined herself as PW-1 and Girijabai as PW-2, so also, produced the documents i.e. notice for mutation Exh. P/1, house tax receipt Exh. P/2, death certificate of Shyamlal Exh.P/3, copy of complaint filed against defendant no.14 Exh.P/4. On the other hand, defendant no.14 examined himself as DW-1 Ghasiram as DW/2 and Ved Prakash Sharma as DW/3 and produced typed copy of Will Exh. D/2, Map Exh.D/3. 13. It is not disputed between the parties that the suit house was the property of deceased Shyamlal. It is also not in dispute that plaintiff - Smt. Sarojbala Tiwari and defendant no.1 - Smt. Sushila are the real sisters and daughters of Shyamlal and defendant no.14 - Deepak is the son of defendant no.1 - Sushila and plaintiff - Smt. Sarojbala is his aunt (Mausi). 14. The case of the plaintiff as well as defendants no.1 and 14 is that deceased Shyamlal was the sole owner of the disputed house. 14. The case of the plaintiff as well as defendants no.1 and 14 is that deceased Shyamlal was the sole owner of the disputed house. In view of the above, after the death of Shyamlal, plaintiff - Smt. Sarojbala and defendant no.1- Smt. Sushila being his daughters would have 1/2 share each in the house; unless, it is proved that deceased Shyamlal executed any Will in favour of defendant no.14 - Deepak. 15. The defendant no.14 in his Court statement stated that deceased Shyamlal was the owner of the suit house. It was his self acquired property. He was brought up by deceased Shyamlal who had love and affection with him like a son. Deceased Shyamlal in his life time, executed a Will dtd. 27/07/1993 (Exh. D-2) which is annexed with the map (Exh. D-3). By the said Will, 1/3rd share in the house was given to him. His share is shown in Red portion, Sushila Sharma, his mother got Green portion and Sarojbala was given Yellow portion. At para 6 of his statement, he said that Shyamlal got the Will typed. After signing by the Shyamlal, the Will was signed by his father Kashi Prasad, Ghasiram, Ved Prakash Sharma and Naveen Sharma. 16. Since a Will is required by law to be attested, execution has to be proved in the manner laid down in Sec. 63 of the Succession Act and the Sec. 68 of the Evidence Act which requires that at least one attesting witness has to be examined for the purpose of proving the execution of such a document. Therefore, having regards to the provisions of Sec. 68 of the Evidence Act and Sec. 63 of the Succession Act, a Will to be valid should be attested by two or more witnesses in the manner provided therein and the propounder thereof should examine one attesting witness to prove the Will. The attesting witness should speak not only about the testator's signature or affixing his mark to the Will but also that each of the witnesses had signed the will in the presence of the testator. 17. The Apex Court in the case of H. Venkatachala Iyengar Vs. The attesting witness should speak not only about the testator's signature or affixing his mark to the Will but also that each of the witnesses had signed the will in the presence of the testator. 17. The Apex Court in the case of H. Venkatachala Iyengar Vs. B.N. T Thimmajamma [ AIR 1959 SC 443 ]; opined the fact that the propounder took interest in execution of the Will is one of the factors which should be taken into consideration for determination of due execution of the Will. It was also held that one of the important features which distinguishes Will from other documents is that the Will speaks from the date of death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and testament of the departed testator. 18. It was also held that the propounder of Will must prove: (i) that the Will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free will, and (ii) when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of propounder, and (iii) If a Will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion. 19. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated therein. 20. The above principle was followed in the cases of Bharpur Singh and others Vs. Shamsher Singh [( (2009) 3 SCC 687 ], Yumnam Ongbi Tampha Ibema Devi Vs. Yumnam Joykumar Singh and Ors. [ 2009 (4) SCC 780 ]. 21. 20. The above principle was followed in the cases of Bharpur Singh and others Vs. Shamsher Singh [( (2009) 3 SCC 687 ], Yumnam Ongbi Tampha Ibema Devi Vs. Yumnam Joykumar Singh and Ors. [ 2009 (4) SCC 780 ]. 21. In view of the above settled principle of law, it has to be seen whether the defendant no.14 has discharged the initial burden to prove the Will as the propounder of the Will ? As per the statement of defendant no.- 14, three years back from the death of his grandfather - Shyamlal was not keeping well and due to which, he (defendant no.14) was making recovery of the rent and receipt was being signed by his grandfather Shyamlal. At para 26 of his cross-examination, defendant no.14 has denied the that Shyamlal never put his thumb impression on rent receipt. At para 11 of his statement, he said that one month before of death, his grandfather started putting thumb impression on the rent receipt. A the bare perusal of Exh.D/2 reveals that the Will is showing the signature as Shyamlal in place of thumb impression. However, according to the statement of appellant/defendant no.14, deceased Shyamlal put his thumb impression on rent receipt one month before from his death. This circumstance makes the claim of defendant no.14 suspicious that the Will was executed and signed by Shyamlal before him and other witnesses. 22. At para 6 of his statement defendant no. 14 said that Shyamlal got the Will typed; however at para 12, he said that he has no knowledge who got the Will typed. This contradiction also raises suspicion in respect to execution of Will. 23. In his statement, defendant no.14 has stated that one year back from the execution of Will, deceased - Shyamlal had been living with his nephew in a separate house situated at Rajendra Prasad Colony. The nephew of the deceased was taking care of Shyamlal because he (defendant no.14) did not have enough time to take care of the deceased. As per the statement of defendant no. 14, on the day when the Will was executed i.e. 27/7/1993, he went to Rajendra Prasad Colony to take Shyamlal. At paragraph 18 & 19, he has also stated that the final rites of Shyamlal were performed by the nephew of deceased Shyamlal in nephew's house not in the disputed house. As per the statement of defendant no. 14, on the day when the Will was executed i.e. 27/7/1993, he went to Rajendra Prasad Colony to take Shyamlal. At paragraph 18 & 19, he has also stated that the final rites of Shyamlal were performed by the nephew of deceased Shyamlal in nephew's house not in the disputed house. The deceased Shyamlal permanently stopped coming to the disputed house one month before from his death. He has also stated that the Will was already typed and was kept in a box. Deceased - Shyamlal took out the already typed Will from the box. He expressed his ignorance when the Will was typed and who got it typed. 24. The above statement of defendant no.-14 creates serious doubts over the execution of the Will because as per his statement, the Will was executed in the disputed house and deceased Shyamlal had permanently stopped coming to the disputed house one month back from his death. Furthermore, the defendant no.14 was not taking care of his maternal grandfather Shyamlal who was residing with his nephew and it was the nephew of Shyamlal who was taking care of him in his last days of life, so also, performed the last rites of Shyamlal in his house. 25. As per the case of appellant, (DW-2) Ghasiram and (DW-3) Ved Prakash Sharma are the attesting witnesses before whom the alleged Will (Exh.D/2) was executed. The perusal of statements of (DW-2) Ghasiram and (DW-3) Ved Prakash Sharma reveals that there are material contradictions and variations in their statements with each other and with the statement of defendant no.14 in respect to the execution of the Will. As per the statements of (DW-2) Ghasiram, he accidentally arrived at the disputed house between 11 to 12 p.m. where he signed the Will (Exh.D/2). In his examination-in-chief at para-3, he stated that deceased Shyamlal had already signed the Will (Exh.D/2) and this witness signed afterwards. At para-3 of his statement, this witness Ghasiram specifically mentioned that he did not know the signatures of Shyamlal and other persons/witnesses. He also did not know the persons who were sitting there. 26. In view of the above statement of this witness, the attestation of Exh.D/2 is not found to be proved because he can not identify the signature of Shyamlal who had already signed the Will. He also did not know the persons who were sitting there. 26. In view of the above statement of this witness, the attestation of Exh.D/2 is not found to be proved because he can not identify the signature of Shyamlal who had already signed the Will. At para-5 of his statement, (DW-2) Ghasiram, contradicting the statement of defendant no.- 14 stated that the Will was executed only in favour of defendant no.14- Deepak. The statement of this witness reveals that neither the deceased Shyamlal nor other witnesses had signed before him. This witness even did not know and identify the signature of deceased Shyamlal or other witnesses. Therefore, execution of Will by this attesting witness is not proved. 27. The second attesting witness (DW-3) Ved Prakash Sharma stated that in the month of July, 1993 he went to the house of deceased Shyamlal where four to five persons were already sitting. Among them were Kashi Prasad, Navneet and Praveen. Shyamlal took out the Will from the box and read it over, thereafter, signed it and they all signed after Shyamlal. However, (DW-2) Ghasiram as discussed above, has not supported that deceased Shyamlal or any other witnesses signed the Will when they were all sitting in the house of deceased Shyamlal. 28. The statements of (DW-2) Ghasiram and (DW-3) Ved Prakash Sharma have other material contradictions also in respect to the execution of Will. (DW-2) Ghasiram has stated at para-2 that the Will was being read by him before signing it. However, as per the statements of (DW-3) Ved Prakash Sharma at para-4, the Will was read over by Shyamlal, thereafter, all the witnesses made their sign on it. At para-4 (DW-3) Ved Prakash Sharma made two different versions. Earlier this witness stated that the Will was read over by Shyamlal and in the same para changing his earlier version, he said that the Will was read over by Kashi Prasad who is the father of defendant no.14- Deepak. (DW-3) Ved Prakash Sharma at para-5 of his statements, could not answer that after Shyamlal and Kashi Prasad, who signed the Will. 29. In view of the above material contradictions and variations between the statements of defendant no.14 and attesting witnesses (DW-2) Ghasiram & (DW-3) Ved Prakash Sharma, the execution of Will is not found to be proved. 30. (DW-3) Ved Prakash Sharma at para-5 of his statements, could not answer that after Shyamlal and Kashi Prasad, who signed the Will. 29. In view of the above material contradictions and variations between the statements of defendant no.14 and attesting witnesses (DW-2) Ghasiram & (DW-3) Ved Prakash Sharma, the execution of Will is not found to be proved. 30. Plaintiff/respondent no.1 - Smt. Sarojbala Tiwari has been examined as (PW-1) and Girjabai has been examined as (PW-2) who have supported the case of plaintiff and corroborated that the sole owner of the suit house was deceased Shyamlal who never executed any Will in favour of anyone. (PW-2) Girjabai who is the sister of deceased Shyamlal has specifically corroborated the fact in her statement that the final rites of Shyamlal were performed by Shyamlal's nephew. This witness has further stated that the relationship between the father of defendant no.14 and Shyamlal was not good. 31. The father of defendant no.-14, Kashi Prasad and mother defendant no.-1 Sushila did not choose to enter into the witness box to support the contentions of his son about the execution of the Will whereas, the Will allegedly signed by Kashi Prasad. This fact also makes the execution of Will suspicious. The defendant no.1 did not even cross-examine (PW-1) Sarojbala and (PW-2) Girijabai. 32. It is well settled that the propounder has to show that the Will was signed by the testator in a sound disposing state of mind and he understood the nature and effect of the dispositions. In this case, defendant no.-14, the propounder of Will himself stated at para-4 that Shyam lal was not keeping well for three to four years back from his death. Nowhere in the statement of defendant no.-14 stated that the Will was signed by the testator Shyamlal in a sound disposing state of mind and he understood the nature and effect of the dispositions. In view of the fact that Shyamlal was not keeping well for three to four years back from his death, it was the duty of defendant no.14 to prove that Shyamlal was in a sound disposing state of mind. 33. The above discussion proves that the execution of the Will (Exh D/2) is surrounded by suspicious circumstances and evidence adduced by the defendant no.-14 did not succeed in removing the legitimate doubt as to the mental capacity of the testator. 33. The above discussion proves that the execution of the Will (Exh D/2) is surrounded by suspicious circumstances and evidence adduced by the defendant no.-14 did not succeed in removing the legitimate doubt as to the mental capacity of the testator. The dispositions made to prove the Will are also appear to be unnatural and improbable. The appellant/defendant no.-14 failed to remove all legitimate suspicions to prove that Exh. D/2 is the Will of the testator Shyamlal. The appellant failed to satisfactorily discharge the initial onus, and, therefore, learned trial court has rightly held that Exh.D/2 is not a genuine document and was not executed by deceased Shyamlal. 34. The facts and circumstances of the cases of M. Chinnasamy (Supra) & Swarnalatha and Ors. (Supra) cited by learned counsel for the appellant are totally different from the present case, therefore, it do not support the case of appellant. 35. So far as the Issue no.-2 is concerned, as per the case of plaintiff, defendants no.2 to 13 are tenants in the suit house from which the defendant no.1 had been receiving rent to the tune Rs.3, 490.00 per month and as such plaintiff is entitled to get half share of the rent from the defendant. However, the plaintiff failed to prove the above facts by adducing any cogent evidence as no tenant has been examined as a witness. The figures of the rent mentioned in plaint are on the basis of assumption. No documentary evidence has been filed by plaintiff in support of her case, therefore, in the considered opinion of this Court, the learned trial Court has wrongly held while deciding the Issue No.2 that defendant no.14 shall pay the rent to the tune of Rs.5, 235.00 to plaintiff from December, 1993 till to the date of recovery of possession. 36. In view of above discussions, this appeal is partly allowed and the findings in respect to Issue No.2 is hereby quashed. The judgment and decree in respect to rest of the findings is hereby affirmed. 37. Parties shall bear their own cost. 38. Let the decree be drawn up accordingly.