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2025 DIGILAW 9 (RAJ)

Abhay Kumar v. Dhanraj

2025-01-03

BIRENDRA KUMAR

body2025
JUDGMENT : BIRENDRA KUMAR, J. 1. The sole plaintiff/respondent Dhanraj brought Civil Suit No. 201/2005 seeking partition of 1/2 share in the suit property as well as a decree of permanent injunction against the defendant/appellant restraining the defendant from changing the physical feature of the suit property or alienating the same in any way till partition by meets and bounds. 2. The suit property is a house situated at Indra Chowk, Nai Lain, Ganga Shahar in the District of Bikaner, details whereof is mentioned in the plaint. By the impugned judgment and decree dated 20.08.2009, the Learned Fast Track Court No. 3, Bikaner decreed the suit. 3. It is not controverted that great grand father of the plaintiff and sole defendant namely Late Sardarmal Sethiya had purchased the suit property through sale deed dated 19.12.1929. In the year 1950, Sardarmal Sethiya died leaving behind two sons Ramlal and Kesari Chand. On 23.08.1975, Ram Lal and Kesari Chand divided their share in the suit property whereunder northern portion was allotted to Ram Lal, the document of division was registered on8.9.1975 (Ex.1). Ram Lal had two sons Surendra Kumar and Shikhar Chandra, plaintiff Dhanraj is son of Surendra Kumar and defendant/appellant Abhay Kumar is son of Shikhar Chandra. 4. The case of the plaintiff is that Ram Lal the grand father of the plaintiff and the denfedant had executed a Will dated 30.6.1992, which was registered on 3.7.1992. As per Will, suit property was bequeathed to Bala Devi W/o Ram Lal till her life, and if, Bala Devi does not dispose of the said property during her lifetime then to the plaintiff and the defendant equally. Bala Devi died on 16.1.1998 without making against disposition of property. Hence, the plaintiff and the defendant equally got 1/2 share in the suit property. 5. The case of the defendant / appellant is that in fact Ram Lal had not executed any Will on 30.6.1992, if any such document is there, it is a forged document. Even if, Ram Lal had executed ignorantly any Will that was revoked by the subsequent Will dated15.06.2002. As per the subsequent Will of Ram Lal, entire share of Ram Lal in the house at Bikaner was given to the defendant/appellant and the rented premise in the City of the Kolkata was given to the plaintiff/respondent. Even if, Ram Lal had executed ignorantly any Will that was revoked by the subsequent Will dated15.06.2002. As per the subsequent Will of Ram Lal, entire share of Ram Lal in the house at Bikaner was given to the defendant/appellant and the rented premise in the City of the Kolkata was given to the plaintiff/respondent. The defendant further asserted that possession of the plaintiff in suit house was permissive one initially and later on became unlawful after Will of Late Ram Lal dated 15.06.2002. 6. The Learned trial Judge framed following issues for adjudication:- (i) Whether the suit property mentioned in para 1 of the plaint was bequeathed by Late Ram Lal Ji Sethiya through Will dated 30.06.1992 registered on03.07.1992 whereunder the plaintiff got 1/2 undivided share? (ii)Whether Will dated 30.6.1992 is a forged and showyd document? (iii) Whether Will dated 15.6.2002 was executed by Ram Lal and after death of Ram Lal, the defendant got the suit property as absolute owner thereof? All the issues were of conjointly decided and it was held that Will of the year 1992 was a valid Will and was duly proved. Unregistered Will of 2002 was not valid as such 1 st Will stood as it is. 7. Mr. Abhay Kumar, the appellant appearing in person contends that the plaintiff never brought the registered Will of 1992 before death of Ram Lal nor the defendant had knowledge about the said Will. Though, in the State of Rajasthan probate of the Will is not requirement of law to give effect to the Will of testator but the Will requires to be proved as per the law which has not been done in the present case. Moreover, the law is clear that the testator can revoked the Will in other mode prescribed under the law including by execution of a subsequent Will. In the case on hand, there is subsequent Will of Ram Lal vide Ex.A-1, therefore, Will of the year 1992, even if, it was there was revoked by the testator, therefore, the plaintiff suit was fit to be dismissed. The learned trial Judge has conjointly decided all the three issues without considering the facts and law correctly. 8. On the other hand, Mr. Sanjeet Purhoit assisted by Mr. Rahul Vyas learned counsel for the respondent contends that the Will of the year 1992 (Ex.2) was a registered Will. The learned trial Judge has conjointly decided all the three issues without considering the facts and law correctly. 8. On the other hand, Mr. Sanjeet Purhoit assisted by Mr. Rahul Vyas learned counsel for the respondent contends that the Will of the year 1992 (Ex.2) was a registered Will. The father of the plaintiff as well as the defendant where appointed as executor of the Will that is why the defendant’s father though examined as DW.2 has evasively expressed ignorance about the earlier Will. Learned counsel submits that the subsequent Will vide Ex.A-1 would itself show that the Will was not executed voluntarily and in sound disposing state of mind by Late Ram Lal, rather, it was created by the collusive act of the defendant’s witnesses. 9. The point for consideration is whether the Will of the year 1992 vide Ex.2 was a valid and genuine Will of Late Ram Lal. Whether Ram Lal really revoked the earlier Will of the year 1992 by the subsequent Will dated 15.06.2002 vide Ex.A-1. 10. PW.1 Dhanraj has categorically supported what is pleaded in the plaint and has denied that Ram Lal had any property at Kolkata, rather, the business of Kolkata is exclusive and self business of the plaintiff. PW.2 Gulab Chand is son in law of Ram Lal, he has proved the due execution of the Will of the year 1992. The witness specifically denied signature of Ram Lal on the second Will of the year 2002. According to PW.2, his father in law Late Ram Lal had executed a Will in respect of the house at Bikaner, whereunder initially the property was given to Bala Devi W/o Ram Lal and after her death, to two grand sons, who are plaintiff and defendant herein. Late Ram Lal called this witness to his house and reported that he is going to execute a Will and asked PW.2 Gulab Chand and PW.3 Pradeep Kumar Sharma to attest the Will. PW.2 further deposed that Ram Lal Ji put his signature in presence of this witness and witness Pradeep Kumar Sharma as well as Mr. Poonam Chand Khatol, Advocate, after Poonam Chand Khatol read over and explained the Will to him. The witnesses also signed, in presence of the testator and the Advocate Poonam Chand Khatol, on each of the two pages of the Will on the request of the testator. Poonam Chand Khatol, Advocate, after Poonam Chand Khatol read over and explained the Will to him. The witnesses also signed, in presence of the testator and the Advocate Poonam Chand Khatol, on each of the two pages of the Will on the request of the testator. On 3.7.1992, the Will was taken for registration where also Ram lal Ji and these witnesses as well as Advocate Poonam Chand signed on the register of the Sub Registrar. 11. DW.2 is wholly reliable witness as he has stood the test of cross-examination. The witness was close relative and having interest in the property bequeathed. If the Will would not have been executed, the wife of this witness was also a sharer in the property of Late Ram Lal Ji, therefore, trustworthiness of this witness cannot be doubted. Another attesting witness PW.3 Pradeep Kumar Sharma filed affidavit in support of due execution and attestation of the Will, however, he did not appear for cross- examination, therefore, his evidence was not considered by the trial Judge. PW.2 is specific that at the time of execution of Will, Ram Lal Ji was mentally and physically fit and was aware of the contents of the Will. Moreover, these facts cannot be challenged by the defendants for the reason that the defendant has also pleaded a case of subsequent Will by Late Ram Lal Ji, therefore, the defendant cannot deny the sound disposing mind of Ram Lal Ji at the time of execution of Will of 1992. It is case of the plaintiff that original Will was with the defendant as defendant was also a beneficiary and his father was executor of the Will but taking advantage of the absence of the plaintiff they develop greed and suppressed the Original Will, thereafter, the plaintiff obtained certified copy of the registered Will and produced the same before the Court. 12. Therefore, it is held that the first Will of Late Ram Lal dated 30.6.1992 was a duly executed Will and has validly been proved as per requirement of law. Therefore, this point is decided against the appellant. 13. 12. Therefore, it is held that the first Will of Late Ram Lal dated 30.6.1992 was a duly executed Will and has validly been proved as per requirement of law. Therefore, this point is decided against the appellant. 13. Section 63(c) of the Indian Succession Act, 1925 requires a Will 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, or has received from the testator a personal acknowledge of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. 14. Section 68 of the Evidence Act deals with proof of execution of document required by law to be attested, the said provision reads as follows:- “If a document is required by law to be attested, it shall not be used as evidence as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.” In the case on hand, both the attesting witnesses on the Will of 2002, namely Sumati (DW.3) and Mahaveer Prasad Sharma (DW.4) were produced in the Court since Mahaveer Prasad Sharma did not appear for cross-examination, his evidence was not considered. 15. DW.1 Abhay Kumar, the party/defendant has deposed that by Will dated 15.6.2002 the grand father cancelled the earlier Will of 1992, the Will was written at the Court premise in presence of Advocate Mahaveer Prasad. Mahaveer Prasad had dictated the Will to the typist. Thereafter, it was taken to the house where Ram Lal Ji was there as he was unable to move in the age of 82 years. In the room of Ram Lal Ji other exercise of signing on the Will after getting it read over to him was done, the witnesses also signed on the Will there at the house. The Will was typed at the seat of Notary, Mahaveer Prasad in the Court premise itself. In the room of Ram Lal Ji other exercise of signing on the Will after getting it read over to him was done, the witnesses also signed on the Will there at the house. The Will was typed at the seat of Notary, Mahaveer Prasad in the Court premise itself. The witness admitted that infact there is no reference of the earlier Will of 1992, in the Will of 2002 vide Ex.A-1. 16. The defendant failed to discharge its burden that Kolkata property was of Ram Lal at any point of time and hence, bequeath of the Kolkata Property in favour of the plaintiff in the subsequent Will itself creates doubt on the genuineness of the Will coupled with other suspicious circumstances what the testator had said to Mahaveer Prasad was not pen down even in shorthand nor the dictation to the typist was made in presence of Ram Lal Ji. 17. DW.2 Shikhar Chandra is father of DW.1, he has admitted that DW.3 Sumati, a witness on the Will of the year 2002 was his sala. The plaintiff was in permissive possession of the house. In the case on hand, admittedly there was a Will by the same testator which was registered one and if the testator wanted to revoke the same he should have clearly disclosed his mind with reference to the particular Will which was already registered one in the absence of clear and acceptable evidence on the point, it cannot be accepted that the Will of 1992 was revoked by testator Ram Lal Ji. 18. DW.3 Sumati could not prove due attestation of the Will, he has deposed that his saw the typed copy of the Will, first Ram Lal Ji read it thereafter, Advocate Mahaveer Prasad got it read over to him then Ram Lal Ji signed on each page of the Will but the witness did not sign on each page of the Will. The attestation requires that every signature on the Will by the testator should be in presence of the witnesses and the witnesses should also sign attesting the signature of the testator. In absence of clear and unambiguous evidence on the point it cannot be said that the Will was duly proved. 19. The attestation requires that every signature on the Will by the testator should be in presence of the witnesses and the witnesses should also sign attesting the signature of the testator. In absence of clear and unambiguous evidence on the point it cannot be said that the Will was duly proved. 19. DW.4 Mahaveer Prasad, who had drafted the Will had deposed that on 2.6.2002, Ram Lal Ji had asked to draft a Will and on 15.6.2002, the execution was notrified. In the cross-examined the witness has admitted that Late Ram Lal Ji had not come to the Court for drafting of the Will rather Will was drafted and typed at the Court premises at the dictation of Mahaveer Prasad Ji. Though, Mahaveer Prasad deposed that he had dictated as per instruction of the testator but he could not remember what the testator had dictated to him. Evidently, there is lack of evidence that the Will produced by the defendant was the last Will duly executed by Late Ram Lal Ji. The defendant/appellant failed to prove that the Will of the year 2002 was a duly executed Will of Late Ram Lal Ji revoking the earlier registered Will in absence of specific stipulation in the subsequent Will regarding revocation of that particular Will. The defendant further failed to prove that the property at Kolkata was property of Ram Lal Ji which he could have bequeathed to anyone. Therefore, subsequent Will of the year 2002 Ex.A-1 was not a genuine and effective Will. 20. To sum up the preponderance of probability is in faovur of the plaintiff/respondent case and against the case of the defendant/appellant for following doubtful and suspicious circumstances:- A. Though, registration of a Will is not the requirement of law, however, once a Will is registered it inspires confidence regarding genuineness because registration is performed in presence of a competent public authority. In the case on hand, the defendant claims that registered Will was revoked by a subsequent unregistered Will of the year 2002. The subsequent Will does not specifically say that earlier registered Will has been revoked. B. Though, a testator can revoke the first Will by a subsequent Will or any other instrument during his lifetime but in the case on hand, the revocation is doubtful. The subsequent Will does not specifically say that earlier registered Will has been revoked. B. Though, a testator can revoke the first Will by a subsequent Will or any other instrument during his lifetime but in the case on hand, the revocation is doubtful. The defendant failed to prove its pleading that there was any property of the testator in Kolkata much less capable of being bequeathed. The plaintiff specifically denied that the testator had any property in Kolkata. The defendant also pleaded that testator had a rented premise at Kolkata, which was bequeathed to the plaintiff/respondent. No one can transfer title which he himself does not possess. A tenant cannot transfer the rented premise, ownership whereof lies in some other person. Thus, bequeathing a property not owned by testator by the Will of the year 2002 is doubtful circumstance regarding genuineness of the Will of the year 2002. C. At the time of execution of the Will of 2002 admittedly, the testator was aged about 82 years and unable to move, the last Will of the testator was not pen down by Mr. Mahaveer Prasad, even in short form, to whom testator allegedly made statement of desire to execute a fresh Will revoking the earlier Will. Mahaveer Prasad had admitted that Will was dictated by him in the Court premise behind the back of the testator and the typist typed accordingly. For the act aforesaid, the advocate has charged fee which was not paid by the testator, the typed copy was brought before testator at the house on which he put his signature. None of the defendant witnesses have deposed that at the time of execution of the Will, the testator was in sound disposing state of mind. Evidently, there is lack of proof of execution of free Will with sound disposing state of mind in the year 2002 by the testator. To conclude, the defendant/appellant failed to prove the case pleaded, rather, the case pleaded by the defendant and nature of evidence brought probablizes the preponderance of probability in favour of the plaintiff/respondent case. 21. In the result, this Court does not find any infirmity with the trial Court judgment and decree. Accordingly, this appeal stands dismissed with cost of Rs.5000/- (Rs. Five Thousand).