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2024 DIGILAW 256 (MP)

Rameshwar Prasad Dwivedi v. Rajkumar

2024-03-11

DWARKADHISH BANSAL

body2024
JUDGMENT 1. This second appeal has been preferred by the appellant/defendant challenging judgment and decree dtd. 4.8.1999 passed by Additional District Judge, Umaria to the Court of District Judge, Shahdol in civil appeal No.3-A/1999 affirming the judgment and decree dtd. 12.2.1999 passed by Additional Civil Judge Class-I, Umaria in civil suit No.222-A/1997 whereby respondent 1/plaintiff’s suit for declaration of title and restoration of possession in respect of agricultural land Khasra No.155-159, 433/1, 79/483, 154, 243, 434/1 and 518 total No. 11, total area 1.997 hectare, situated in Village Tendua, Tahsil Bandhavgarh, Distt. Umaria, has been decreed. 2. Facts in short are that a civil suit was filed by respondent 1/plaintiff claiming himself to be owner/bhoomiswami of the land with the allegations that Gyaniram s/o Ram Sewak Brahman was owner of the land in question. After death of his wife, he was alone and suffering from paralysis, therefore, the plaintiff and his mother were taking care of Gyaniram, who died on 26.12.1994. Prior to his death, Gyaniram in his life time executed a Will dtd. 25.12.1994 (Ex.P/1) in favour of the plaintiff. It is also alleged that Gyaniram got opened a bank account also in the joint name of Gyaniram and plaintiff’s mother, in which an amount of Rs.22,000/- was also deposited. On inter alia allegations the suit was filed. 3. The appellant/defendant 1 appeared and by filing written statement denied the claim of plaintiff, and claimed himself to be bhumiswami and in possession of the land being successor of Gyaniram, with the further contention that entire suit land does not belong to Gyaniram because he has already sold some land to different persons. It is also contended that Gyaniram was suffering from paralysis and was not well. The plaintiff has got forged the false Will in question and in fact no Will was executed by Gyaniram in favour of the plaintiff. With these contentions the suit was prayed to be dismissed. 4. Defendant 2/State being proforma, did not file any written statement and was proceeded ex-parte. 5. On the basis of pleadings of the parties, trial court framed as many as seven issues and recorded evidence of the parties. The plaintiff in support of his case examined himself-Rajkumar Tiwari (PW-1), attesting witness-Jaikaran (PW-2), Jhagdu (PW-3) and another attesting witness Sundar Lal Yadav (PW-4) and submitted documentary evidence (Ex.P/1 to P/8). 5. On the basis of pleadings of the parties, trial court framed as many as seven issues and recorded evidence of the parties. The plaintiff in support of his case examined himself-Rajkumar Tiwari (PW-1), attesting witness-Jaikaran (PW-2), Jhagdu (PW-3) and another attesting witness Sundar Lal Yadav (PW-4) and submitted documentary evidence (Ex.P/1 to P/8). In rebuttal, the defendant 1 examined himself-Rameshwar Prasad Dubey (DW-1), Dadanram Dubey (DW-2) and Bodhram Dwivedi (DW-3) and submitted documentary evidence (Ex. D/1 & D/2). 6. After hearing arguments of the parties, trial Court while deciding issue No.1 & 4(a),(b) held that the land in question belonged to Gyaniram Brahman and is in possession of defendant 1 and while deciding issue No.2 it was held 4 that Gyaniram executed a Will in favour of plaintiff which is not a forged document and decreed the suit vide judgment and decree dtd. 12.2.1999. Upon filing civil appeal by defendant 1, first appellate Court affirmed the same, vide impugned judgment and decree dtd.4.8.1999. 7. Against the judgment and decree passed by courts below, instant second appeal has been filed by defendant 1, which vide order dtd. 8.5.2000 was admitted on the following substantial question of law : “Whether in view of the pleading of the defendant in the written statement and the evidence led that the deceased was unconscious for the last seven days and also the fact that the deceased does not seem to have signed the will in question, in the absence of a finding on this material aspect the judgment and decree passed by the Courts below are sustainable in the eye of law ?” 8. Learned counsel for the appellant/defendant 1 submits that the plaintiff has no relation with deceased Gyaniram, and although the defendant 1 is not class-I legal heir of Gyaniram, but belongs to the family of Gyaniram and in absence of any Will, is entitled to succeed the property, who is already in possession of the land and has also been found by courts below since after death of Gyaniram. Learned counsel submits that in fact the Will (Ex.P/1) is a false and fabricated document and got prepared by plaintiff fraudulently with the help of Advocate and Notary-Satish Chand Singhai as well as attesting witnesses namely Sundarlal and Jaikaran Singh. Learned counsel submits that in fact the Will (Ex.P/1) is a false and fabricated document and got prepared by plaintiff fraudulently with the help of Advocate and Notary-Satish Chand Singhai as well as attesting witnesses namely Sundarlal and Jaikaran Singh. In continuation of his submissions, he emphasized that although at two places i.e. on front side of first and second page of the Will, thumb impressions are there, but no thumb impression has been affixed by Gyaniram on the back side of first page of Will, which is kept reserved for two thumb impressions of Gyaniram by writing the words “thumb impression of Gyaniram” and admittedly there is no thumb impression affixed by Gyaniram, because that place is still blank. 9. By pointing out that at the end of back side of first page it is clearly mentioned by Notary that the Will was executed at the house of Gyaniram himself, learned Counsel for the appellant submits that if the Will had been executed by Gyaniram at his house then there was no occasion to keep both the places blank. Learned counsel submits that factum of not affixing the thumb impression shows that in fact the Will was not executed by Gyaniram but it was prepared after death of Gyaniram and even though this fact has been considered by Courts below in their judgment(s), but for the reasons best known to them, no weightage has been given to the said glaring fact. Learned counsel further submits that testimony of both the attesting witnesses is also doubtful and is not sufficient to hold the Will in question to have been executed by Gyaniram and learned Courts below have committed illegality in decreeing the suit. In support of his submissions learned counsel placed reliance on a decision in the case of Ramesh Verma (dead) thr. LRs v. Lajesh Saxena (dead) by LRs and anr. 2017 (2) MPLJ 513 . 10. Learned counsel for the respondent 1/plaintiff supports the impugned judgment and decree passed by Courts below and prays for dismissal of second appeal with the submissions that substantial question of law framed by this Court is in fact a question of fact and concurrent findings recorded by Courts below regarding execution of Will, do not liable to be interfered with in the limited scope of Section 100 CPC. In support of his submissions, learned counsel placed reliance on decisions in the case of Meena Pradhan and Ors. v. Kamla Pradhan and Ors. (2023) 9 SCC 734 (para 10) and Kasinath Patel v. Radha Bai and Ors. 2005(4) ALD 859 (para 50-51). 11. Heard learned counsel for the parties and perused the record. 12. Undisputedly Gyaniram Brahman was owner of the land in question and after death of his wife there was no Class-I legal heir of Gyaniram and as has been admitted in paragraph 6 of his statement by plaintiff-Rajkumar Tiwari (PW-1), the defendant 1/appellant belongs to the family of Gyaniram and in absence of any Will alleged to have been executed in favour of the plaintiff, the defendant 1 is entitled to get/succeed the property of Gyaniram. So, the only question involved in the present case is about due and valid execution of Will by Gyaniram in favour of plaintiff, who had no relation with Gyaniram and never remained in possession of the suit property. 13. Bare perusal of overleaf of first page of Will (Ex.P/1) shows that as per practice prevailing for authentication of a document, notary has kept two places earmarked for thumb impression(s) of Gyaniram. As to why thumb impressions were not affixed by Gyaniram, has not been clarified by the plaintiff or the attesting witnesses namely Jaikaran Singh and Sundar Lal Yadav, whereas both the attesting witnesses have signed at the fixed places of over leaf of first page of the Will. At the end of back side of first page of Will, it has been mentioned by Notary that for execution of Will, he went to house of Gyaniram. As notary himself had gone to the house of Gyaniram and if Gyaniram was present at his house, then there was no reason to not to affix thumb impressions by Gyaniram. 14. It is not the case of plaintiff that Will was got notarized after execution of the Will, but according to the plaintiff and both the attesting witnesses namely Jaikaran and Sundar Lal Yadav, the Will was written by Satish Chandra Singhai alias Jain Advocate and thereafter in presence of both the witnesses it was executed by Gyaniram. In the entire testimony, both the witnesses have clearly stated that the Will was written by Satish Chandra Singhai, whereas it is a typed document. In the entire testimony, both the witnesses have clearly stated that the Will was written by Satish Chandra Singhai, whereas it is a typed document. Upon asking question to the attesting witness Jaikaran (PW-2) about typing of the document/Will, he in para 2 of his cross-examination stated that he did not see as to who had typed the Will. Although, on the overleaf of first page, name of Gyaniram is mentioned regarding purchase of stamp, but the plaintiff in para 8 of his statement, has stated that Gyaniram did not go for purchase of the stamp. However, who brought the stamp, is not clear on record. 15. With a view to understand real dispute/illegality regarding the Will in question, involved in the instant case, relevant overleaf page of Will is hereby made a part of this order, which is as under :- 16. In the case of H.K. TANEJA v. BIPIN GANATRA; KESHAVRAO J.BHOSLE 2009 (2) MhLJ 855, a coordinate Bench of Bombay High Court, has held as under : “5. The procedure relating to notarization under the Notaries Rules, 1956 framed under the Notaries Act, 1952 has not been followed. Under Rule 11(2), the notary is required to maintain a notarial register in prescribed form No.XV. The form shows 11 columns, including the column of the Serial number, Date, Name of the Notarial act, Name of the executant, Content s of document s, Notarial fee, Signatures of the executant and the Notary. The purpose of this rule is to relate each notarized document to the serial number in the notarial register required to be maintained by each notary in the prescribed form. Hence the serial number of the entry must be put on the document to collate the entry with the document. In case of dispute the factum of notarization would have to be separately proved by the Applicant since, unlike registration, there is no presumption of execution of a notarized document. It is seen that in this case the notary has not shown the serial number and the register number in which the entry is made. It would be for the Applicant to prove the notarization in view of the dispute. The Applicant has not got produced the relevant notarial register of the notary, kept in the normal course of his conduct as such notary, to prove the execution of the document before him. It would be for the Applicant to prove the notarization in view of the dispute. The Applicant has not got produced the relevant notarial register of the notary, kept in the normal course of his conduct as such notary, to prove the execution of the document before him. The document being otherwise unregistered and inadmissible in evidence is, therefore, not even prima facie shown to be notarized. 6. In the case of Prataprai Trumbaklal Mehta v. Jayant Nemchand Shah & anr., AIR 1992 Bom. 149 , this Court considered, inter alia, the essence of notarization of document s by persons identified before notary and the prescribed Rules, more specially Rule 11 required to be followed for every notarial act. That was a case of reliance upon a copy of a document certified as true copy by the notary. That notarial act remained unregistered. The mere fact that the document was notarized was held not to lend any authenticity to the document in the absence of seeing the notarial register kept by the notary in the course of his conduct as a notary as per Rule 11 of the Notaries Rules. Evidence was led in that case. The notary was summoned. The relevant notarial register was produced. No entry was found in the notarial register relating to the transaction claimed to have taken place under the copy document notarized as true copy. The notary deposed that the executant was not before him. He had not made any entry in the notarial register as, according to him, that was not required. He was only required to verify the document , compare the document and endorse it as true copy if it was the identical copy of the original. It was observed thus :- "Law takes judicial notice of seal of a notary. In ordinary course, an initial presumption may be made about genuineness of the notarised copy of the document. The underlying idea behind such presumption is that the notary is normally a responsible member of the legal profession and he is expected to take due care to satisfy himself about the identity of the party appearing before him. In ordinary course, an initial presumption may be made about genuineness of the notarised copy of the document. The underlying idea behind such presumption is that the notary is normally a responsible member of the legal profession and he is expected to take due care to satisfy himself about the identity of the party appearing before him. If the party appearing before the notary is not known to the notary, the notary must get the party identified by an Advocate known to him and take signature of both of them in token thereof ." The contents of Rule 11, its purpose and object as well as the consequences of noncompliance of the rules have also been considered in Para- 11 of that judgment. Reference has been made specially to Rule 11(2) of the Rules which provides that every notary shall maintain notarial register in prescribed form No.XV and the register requires entry of every notarial act in the notarial register and taking of signature of the person concerned in the register. It is observed that negligence of the notary in the discharge of his notarial functions may jeopardise the interest of third parties and public interest itself. Upon seeing that the notarial register did not disclose the notarial entry relating to the notarized document produced before the Court, it was held that no evidentiary value whatsoever could be attached to such a document. 7. It may be mentioned that that was a case of only a certification of copy of a document as a true copy. Our case goes much further. It is the case of the execution of the original document itself. The executant is required to be present before the notary. He is required to be identified before the notary. He is required to sign before the notary. The notary is required to witness such an act and register the transaction. Keeping in mind that the document relied upon by the Applicant herein is not registered and hence is inadmissible in evidence, even the factum of the execution of the document is not even prima facie shown by the Applicant upon proving the notarial act. It is for the Applicant to make out his case. Keeping in mind that the document relied upon by the Applicant herein is not registered and hence is inadmissible in evidence, even the factum of the execution of the document is not even prima facie shown by the Applicant upon proving the notarial act. It is for the Applicant to make out his case. The prima facie case of proof of the execution of the document on a given date by the executant before the notary can be evidenced by the production of the true or certified copy of the relevant portion of the notarial register showing that the entry was made on the relevant date in the normal course of the conduct of the notary. The Applicant has undertaken no exercise to substantiate his case of the execution of the document otherwise completely inadmissible in evidence. Since even the notarial act is not shown even a prima facie case cannot be made out.” 17. Aforesaid decision in the case of H.K. TANEJA (supra) has been followed recently by another coordinate Bench of Bombay High Court at Nagpur in the case of Vikky s/o Abhay Nikose v. M/s Navbharat Press, 2022 (4) MhLJ 705 . 18. In view of the aforesaid decision in the case of H.K. TANEJA (supra) and upon perusal of provisions of the Notaries Act, 1952, especially the section 8 of the Act as well as the Notaries Rules, 1956, especially the rule No.11(2) & (8) of the Rules, it is clear that a notarized document is not presumed to be proved without examining the notary and the person concerned must prove the factum of notarization by requiring the production of the relevant notarial register. 19. In my considered opinion, in case of dispute about execution of a notarized document, requirement for examination of the notary is crucial to prevent fraud and ensure the authenticity of the document. The notary’s testimony can provide valuable insights into the circumstances surrounding the execution of the document and the identity of the signatory. It is noteworthy that notarization is not a guarantee of the document’s validity or legality. The notary’s role is limited to attesting the execution of the document and verifying the identity of the signatory. The notary’s testimony can provide valuable insights into the circumstances surrounding the execution of the document and the identity of the signatory. It is noteworthy that notarization is not a guarantee of the document’s validity or legality. The notary’s role is limited to attesting the execution of the document and verifying the identity of the signatory. However, where the notary is not available for examination, the court may consider alternative methods of proving the document’s genuineness, yet the absence of the notary’s testimony may weaken the probative value of the document. 20. It is also pertinent to mention here that disputed Will is said to have been executed on 25.12.1994 and cremation of Gyaniram was done by plaintiff on 26.12.1994 just contrary to Hindu rituals by burying the body of Gyaniram that too in absence of the defendant and when the defendant and his family members came to know about death of Gyaniram, they came in the Village and with the help of police, Gyaniram’s dead body was taken out by digging from the cremation ground and then took the body of Gyaniram to Village Tendua from Village Deora, for performing last rites. All the aforesaid including other circumstances create manifold suspicions about due execution and attestation of the Will and despite the fact that the plaintiff has failed to remove all these suspicions, Courts below have decreed the suit. 21. In view of the aforesaid discussion it is held that the plaintiff has not been able to prove that on the date of execution of Will, the deceased-Gyaniram was fit and of conscious mind to execute the Will and signed the Will or affixed thumb impressions, consequently, the substantial question of law formulated by this Court deserves to be and is hereby decided in favour of the appellant/defendant 1 and against the respondent/plaintiff. 22. Resultantly, the second appeal succeeds and is allowed and by setting aside the impugned judgment and decree passed by courts below, the suit filed by respondent 1/plaintiff stands dismissed. 23. However, no order as to costs. 24. Pending application(s), if any, shall stand disposed off.