Devkaran vs Rameshwar and Others

Abhay M. Naik, J.—This second appeal has been preferred against dismissal of plaintiffs suit by Courts below in concurrent manner.

Short facts leading to this appeal are that the suit property was owned and possessed by Balmnukund, who happened to be brother of Keshav Ram, the original plaintiff. Basantibai, the original defendant No. 1, got her name mutated on the suit property, after the death of Balmukund in a road accident on 19.12.1984, on the strength of will dated 03.12.1984 (Ex.D/1) and further sold it to defendants No.2 to 4 vide registered sale-deed dated 15.01.1985. Plaintiff challenged the will as forged one and prayed for declaration of title and restoration of possession on account of succession by natural inheritance.

Defendants No.2 to 4 submitted a joint written statement stating therein that Keshav Ram had gone in adoption to Kalu Ram, and therefore, the plaintiff did not succeed to Balmukund''s property. Moreover, Balmukund and Keshav Ram were not the members of joint family and resided separately throughout after adoption. Balmukund, during his life time, executed a will dated 03.12.1984 in village Barlai, Tahsil Sanver, District Indore in sound condition of mind in due manner in favour of Basantibai. After the death of Balmukund, last rites were performed by Basantibai''s son, namely, Devilal. Mutation was also made on the strength of the said will on 09.01.1985. Thereafter, registered sale-deed was duly executed by Basantibai in favour of defendants No.2 to 4 on 15.12.1985. Basantibai was not a stranger but was daughter of sister of Balmukund''s father. Wife of Balmukund had predeceased and thereafter Balmukund, having no issue, executed the will in favour of Basantibai, in due manner. Thus, the suit is liable to dismissal.

Learned trial Judge, after recording the evidence, held that the will was duly executed by Balmukund in favour of Basantibai. He further found that Keshav Ram was given in adoption by his father to Kalu Ram, and therefore, he did not acquire any right, title or interest in the suit property. Accordingly, suit was dismissed vide judgment and decree dated 19.02.1996. It is not out of place to mention here that original plaintiff Keshav Ram died during the trial and his widow Sitabai and his son, namely, Devkaran, were brought on record. Sitabai also died during the trial and her name was deleted.

Aggrieved by the aforesaid, Devkaran alone submitted Civil Appeal No.24-A/1997, which having been dismissed vide impugned judgment and decree dated 23.07.1997, second appeal has been preferred, which has been heard on the following substantial questions of law: -

Whether the finding as to the execution of the Will Ex.D/1 is perverse?

Whether the finding as to the execution of the Will has vitiated because of the non-considention of attending circumstances?

Whether the finding as to the valid attestation of the will is perverse?

Shri M.L. Agrawal, learned senior advocate appearing for the appellant and Shri H. Y. Mehta, learned counsel appearing for respondents made their respective submissions, which have been considered in the light of material on record.

Bare perusal of all the three substantial questions of law makes it clear that they pertain to the evidence relating to execution of the will and the attending circumstances.

In order to establish a will in Court of law, same is required to be proved in accordance with Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, which read as under: -

Succession Act

Execution of unprivileged Wills.- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:-

(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.

(c) The Will shall 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 acknowledgment 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.

Evidence Act

Proof of execution of document required by law to be attested.- If a document is required by law to be attested, it shall not be used 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:

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.

Shri M.L. Agrawal, learned senior advocate contended that the scribe Devilal is none else than the son of the beneficiary herself. Accordingly, it is argued that the will is suspicious.

It has been already held proved that Basantibai was not a stranger to Balmukund. She was daughter of sister of testator''s father. Thus, obviously, she was a close relative. If her son was a professional scribe, this Court does not find it strange if will is drafted by her son. Moreover, it has also been held proved that Keshav Ram had gone in adoption in Kalu Ram''s family and ceased to be a member of Balmukund''s family. This being so, the will in question does not become suspicious, merely because it was scribed by Basantibai''s son.

Will has been proved by scribe Devilal (PW-3) and attesting witnesses Ambaram (DW-1) and Hariram (DW-2). DW-3 has stated that Balmukund had no son and his wife had predeceased, therefore, he resided with Basantibai before his death for 40-45 years. He has further stated that Balmukund was looked after by Basantibai. This scribe has clearly stated that the will was prepared by Balmukund in a voluntary manner. It has been further argued by Shri M.L. Agrawal, learned senior advocate that the attesting witnesses have not stated that the signatories in attestation of the will acted in presence of the testator. On perusal, it is found that the attesting witness Ambaram (DW-1) has stated in paragraph 6 that after complete drafting of the will, it was signed by Balmukund. He further stated that he and another attesting witness Hariram put their signatures, after reading the same. This version of the attesting witness is to be read in continuity with the earlier version that Balmukund put his signatures after the will was prepared completely. It would obviously mean that after the signatures were put by Balmukund, attesting witnesses in his presence read the same and put their signatures in attestation of the will. It has been further contended that will was not read over Or explained to Balmukund. DW-2 has clearly stated in paragraph 2 that the will was dictated by Balmukund in voluntary manner. DW-1 stated in paragraph 2 of his statement that Balmukund had prepared the will that the property left by him was being bequeathed to Basantibai. Plaintiff in cross-examination failed to make out any such fact or circumstance that the will Ex.D/1 was not prepared, according to the wishes of the testator or was prepared contrary to the wishes of the testator. On perusal of Ex.D/1, it is clearly found that there is specific allegation by Balmukund that Keshav Ram (i.e. plaintiff) had gone into adoption to Kalu Ram Sharma of village Sirolia and that the testator was residing in village Barlai for 35 years.

It has been further argued that the will Ex.D/1 does not bear signatures of Balmukund, the testator, but has been prepared in a forged manner.

Suffice it to say that signatures of Balmukund on EX.D/1 has been proved in due manner by the scribe as well as both the attesting witnesses. Additionally, the same has been got examined by the handwriting expert (Shri N. G. Deshpande). His report is on record as Ex.D/6. Expert (DW-8) has stated on oath that signatures on Ex.D/1 tallies with the standard signatures contained in the registered sale-deed dated 26.08.1980 and the signatures contained in the register maintained by the Office of Registrar. Tremors in the signatures are stated to be outcome of the aging process. Learned senior advocate for the appellant has failed to demonstrate any other significant deviation in the signatures of the testator on will in question Ex.D/1.

Learned senior advocate on behalf of the appellant further argued that the death of Balmukund occurred on 19.12.1984 whereas mutation was applied within 30 days from the death. Thereafter, the suit property was sold to defendants on 15.01.1985. According to him, it is a major circumstance which creates doubt about the genuineness of the will.

Suffice it to say that death of Balmukund was not a case of young death. He was 75 years old. Prospective purchasers might have come forward with acceptable offer. Therefore, in such a situation, if application for mutation is made within 30 days after the death of testator, this by itself is not sufficient to discard the will, which has been duly proved by the scribe and attesting witnesses. On the other hand, it may be seen that the plaintiff has suppressed the factum that he had gone in adoption to Kalu Ram. He has mentioned name of his natural father Badrilal in the cause title, suppressing the fact that he had gone in adoption to Kalu Ram Sharma. Ex.D/3 is KISTBANDI KHATAUNI wherein name of Kalu Ram has been shown as father of the plaintiff Keshav Ram. Similarly, certificate marked as Ex. D/4 has been issued by Gram Panchayat, Sirolia that in the Panchayat record name of Kalu Ram is entered as father of Keshav Ram, plaintiff. Ex.D/5 is the voter list of the year 1975 of Hatpipliya Assembly seat, wherein Keshav Ram s/o Kalu Ram has been shown at Serial No. 501. Thus, finding of the Courts below that Keshav Ram had gone into adoption to Kalu Ram Sharma is found to have been recorded after correct appreciation of the evidence on record. Plaintiff has suppressed this important factor deliberately while making effort to challenge the will Ex.D/1. In the facts and circumstances, the will in favour of Basantibai to the exclusion of Keshav Ram cannot be considered with undue sensitivity, in view of the fact firstly that Keshav Ram, despite being real brother of Balmukund, had gone into adoption long back to Kalu Ram Sharma and secondly, that Balmukund was being looked after for 30-35 years before his death by Basantibai, who was daughter of sister of Balmukund''s father.

Shri M.L. Agrawal, learned senior advocate placed reliance on Bharpur Singh and Others Vs. Shamsher Singh, (Murarilal v. State of MP), Smt. Jaswant Kaur Vs. Smt. Amrit Kaur and Others, , Ku. Chandan and Others Vs. Longa Bai and Another, to contend that will is to be duly proved in accordance with Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. All the attending circumstances creating doubt must be made clear so as to satisfy conscience of the Court that the will was duly executed by the testator.

On perusal and the appreciation of the evidence rightly made by the Courts below and on further perusal of evidence by this Court itself, this Court is of the considered view that in view of the evidence on record there is no such suspicious circumstance, which may have the effect of vitiating the will in question. Accordingly, it is observed that the law relied upon by the learned senior advocate for the appellant does not render any assistance to him, in the facts and circumstances of the present case.

Accordingly, all the three substantial questions of law are answered against the appellant.

Resultantly, this Court does not find any force in the appeal. The same is hereby dismissed, however, without any order as to costs.

C.c. as per rules.