Mahila Parwati vs Brijlal And Ors

The present appeal under Section 100 of CPC has been preferred by the appellant against the judgment and decree dated 14.12.2018 passed by 2nd Additional District Judge, Karera, District Shivpuri in Civil Appeal No. 17-A/2017, setting aside the Judgment and decree dated 29.04.2017 passed by I Civil Judge, Class-II Karera, Dist. Shivpuri in Civil Suit No. 33-A/2013.

It is alleged by learned counsel for the appellant that Brijlal and Dwarika have filed a civil suit before the trial Court for declaration and permanent injunction with respect to half share of the property in question. It is submitted that disputed property was purchased by the father of the appellant and respondents No. 1 to 3 namely Maniram @ Mannulal by way of registered sale deed dated 07.05.1974 for Chheturam, Dayaram S/o Khoobchand Vaishya, therefore, the property was self acquired property of Maniram @ Mannulal. It is submitted that father of the appellant was in possession and title in disputed property in question and they used the land in question and cultivating by Bataidaar. It is submitted that the father has executed the will in favour of both the sons on 01.07.2013 and it was registered before the Sub Registrar and immediately, after registration of will, the same was handed over to the plaintiffs by his father and after death of their father on 12.12.2013, the plaintiffs became owner of the suit land. It is submitted that the plaintiffs have mutated their names in the revenue records in connivance with the Patwari. The aforesaid aspect for the first time came to knowledge of plaintiff when he has obtained the copy of Khasra entries from Kiosk on 30.05.2014 and immediately, thereafter civil suit was filed for declaration of title and permanent injunction in respect of Survey No. 1897 ad measuring area 3.34 hectare.

Written statement was filed by the appellant/defendant No.1 denying all the plaint averments. It is submitted that name of defendant No. 1 has already mutated in the Revenue Record in the capacity of daughter of Maniram @ Mannulal. It is submitted that on the basis of will, defendant/appellant has digged up a well in the land along with her husband and name of defendant No. 1 has already mutated in the revenue records. The will in question dated 01.07.1913 was not found to be proved by the learned trial Court. On the basis of pleadings advanced by the parties, learned trial Court has framed four issues and after due consideration of entire oral and documentary evidence available on record and after hearing of the parties has finally decided the civil suit holding that will is not proved beyond any reasonable doubt, therefore, the civil suit was dismissed vide judgment and decreed dated 29.04.2017. An appeal was preferred against the aforesaid judgment and decree and learned First Appellate Court has found that the will dated 01.07.2013 has been rightly executed and the same is proved by leading cogent evidence and considering the aforesaid aspect has reversed the judgment and decree passed by the learned trial Court.

Learned counsel for appellant has drawn attention of this Court to the statement of attesting witness H.L. Raje who has categorically stated that at the time of execution of will, mental status of Maniram was not stable owing to the old age and looking to the age of Maniram @ Mannulal he was not knowing what he was doing and the said witness has never stated that the will has been read over to him, therefore, the appellate Court has wrongly placed reliance upon the statement of witness-H.L. Raje. It is further submitted that there is no any reason assigned by Maniram in his will as to why he is depriving the other legal heirs from getting the share in his property. It is further submitted that plaintiffs have not been examined by the will writer who has drafted the will, therefore, the will cannot be said to be proved in absence of examination of such vital witness. In such circumstances, he has prayed for setting aside the judgment passed by the first appellate Court.

It is argued by learned counsel for respondent that the learned trial Court has not appreciated the evidence available on record as will was duly proved by the attesting witness-H.L. Raje (PW/3) who has categorically stated that the will was drafted by one Babulal Bandil was read over to Maniram @ Mannulal and he has categorically stated that thumb impression of Maniram @ Mannulal was to be proved owing to the fact that he was 103 years of age and there was some certain vibration in his hands owing to the old age. However, he has admitted the fact that he knows to read and write. The factum of name of drafter was told by him and it was further submitted that the will in question was read over to him. Thus, once the will in question is proved by cogent reasons, nothing survives in the present case.

It is further submitted that the will (Ex. P/1) is a registered document even stamping of Sub Registrar office. The learned trial Court has committed an error in not considering the evidence available on record, whereas, on appeal, the appellate Court minutely considered the aforesaid aspect holding that the will in question was proved by cogent reasons and by virtue of law, the plaintiffs were entitled half share of property in question. It is further contended that all the grounds which have been raised by the appellant have been considered by the learned appellate Court and answered properly. He has relied upon the judgments rendered by Hon'ble Supreme Court in the case of Hazara Bradri and other Vs. Lokesh Datta Multani, reported in (2005) 13 SCC 278 as well as Daulat Ram and others Vs. Sodha and Others reported in (2005) 1 SCC 40, wherein the Hon'ble Supreme Court has considered the aspect that even if will in question has been proved by one attesting witnesses, then, the same stood proved. It is submitted that no substantial question of law involved in the present case and prays for dismissal of the second appeal.

Heard learned counsel for the parties and perused the record.

From perusal of the record, it is seen that initially a civil suit was filed by the plaintiff and the will in question was duly proved by the witness-Babulal Bandil (PW-3). Though, the learned trial Court has found that the will was suspicious, but has failed to consider the aspect that the will was duly proved by leading cogent evidence. The argument advanced by learned counsel for the appellant that Maniram @ Mannulal, who has got executed the will in favour of the plaintiffs, was an educated person and knows to read and write and then also, he has not signed the will, whereas he has put thumb impression. The aforesaid aspect is considered by the learned appellate court and has relied upon the statement of attesting witness (PW-3) who has categorically deposed that Maniram @ Mannulal was 103 years of age at the time when the will was executed and owing to old age there are certain vibrations in his hand, therefore, he has not signed on the will and put his thumb impression on the will. The reason for not putting the signature was duly explained.

It is settled proposition of law that the burden held by the Hon'ble Court that the burden is on the person claiming rights to be by virtue of will as has been held by the Court in the case of Smt. Suraj Bai w/o Late Kaluji Vs. Shanti Lal and others, reported in 2012 (4) MPHT 428 (DB), wherein it has held as under :-

"11. Section 68 of the Evidence Act, 1872 and Section 63 of the Indian Succession Act, 1925 would be relevant for deciding the controversy, which is arising in this appeal. The Supreme Court in the case of Daulatram and others Vs. Sodha and others (supra), has held that for a Will to be valid it should be attested by two or more witnesses in the matter provided under Section 63 of the Succession Act and propounder should examine at least one attesting witness to prove the Will. The propounder of the Will has to show that the Will was signed by the testator; that he was at the relevant time in sound disposing state of mind; that he understood the nature and effect of disposition and had put his signatures to the testament of his own free Will and that he had signed it in the presence of the two witnesses who attested in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. In cases of execution of Will being surrounded by suspicious circumstances, it must be satisfactorily explained by the propounder of the Will by leading appropriate evidence. No doubt that the burden to prove that the Will is forged or that it was obtained under undue influence or coercion or by playing fraud is on the person who alleges it to be so. In Yumnam Ongbi Tampha Ibemma Devi Vs. Yumnam Joykumar Singh and others (supra), the Supreme Court has held that as per provisions of Section 63 of the Succession Act, for the due execution of a Will (1) the testator should sign or affix his mark to the Will; (2) the signature or the mark of the testator should be so placed that it should appear that it was intended thereby to give effect to the writing as a Will; (3) the Will should be attested by two or more witnesses and (4) each of the said witnesses must have been the testator sinning of affixing his mark to the Will and each of them should sign the Will in presence of the testator. The attestation of the Will is not an empty formality. It means signing a document for the purpose of testifying of the signatures of the executant. Since a Will is required by law to be attested, execution has to be proved in the manner laid down in section and 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 Section 68 of the Evidence Act and Section 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.(Emphasis supplied)

In the present case, the Will was executed in favour of defendant No.1 from whom the defendant No.2 had purchased the suit land. Thus, the defendant No.2 had stepped into the shoes of the defendant No.1 and therefore, defendant No.2 is also propounder of Will and therefore, was legally obliged to have proved the Will by examining at least one attesting witness. However, the defendant No.2 made no efforts to prove the Will in accordance with Section 68 of the Evidence Act. In the circumstances, when the defendant No.2 had failed to prove the Will on the strength of which she had purchased the land from the defendant No.1 who was ex parte it was not necessary for the plaintiff to have led evidence to prove her allegation that the said Will was a forged and fabricated document. In our considered view, the Trial Court has mis-directed itself in wrongly placing the burden to prove that the Will is forged and fabricated on the plaintiff when the initial burden of proving the Will was not discharged by the defendants. In the circumstances, the finding recorded by the Trial Court in this regard is set aside."

After going through the record available on record and taking into consideration the evidence available on record, this Court finds that no substantial question of law is involved in the present case.

Thus, the petition sans merits and accordingly, dismissed. No order as to costs.