Raghuveer Singh Yadav vs Atar Bai and Others

Rohit Arya, J.—This appeal by defendant under Section 100 of CPC is directed against the judgment and decree dated 3/3/2005 passed by Third Additional District Judge, Shivpuri in Civil Appeal No. 3-A/2005 reversing the judgment and decree dated 22/11/2014 passed by Civil Judge, Class-II, Kolaras, District Shivpuri in Civil Suit No. 140-A/2004. Plaintiffs'' suit for declaration and permanent injunction has been dismissed by trial Court.

Relevant facts necessary for disposal of this appeal are to the effect that plaintiffs are daughters of Late Kalyan Singh and defendant No. 1 is the son of Kalyan Singh. Kalyan Singh has died on 23/12/2001. Suit property; agricultural lands, detailed and described in para 2-(b) of the appellate order were ancestral properties of Late Shri Kalyan Singh. Plaintiffs filed a suit on 7/10/2003 inter alia contending that consequent upon death of Kalyan Singh, suit properties shall devolve upon his son and daughters in terms of Hindu Succession Act, 1956 and each one shall have 1/3 equal share out of entire suit property. As defendant No. 1 refused to give share of plaintiffs and sold a part of ancestral property ad measuring 1.23 hectare falling in survey No. 1284/2; for a consideration of Rs. 1,23,000/- to defendant No. 2, under such circumstances, instant suit was filed.

Defendant No. 1 filed written statement denying the plaint averments. It is contended that Late Kalyan Singh before his death had executed a Will on 27/7/1998 in favour of defendant No. 1 bequeathing entire suit property in his favour to the exclusion of plaintiffs as both daughters were given sufficient amount at the time of their marriage and late Kalyan Singh did not intend to give any further assets to them. It is submitted that facts are well explained in the Will. Besides, Will has been signed by two attesting witnesses and was registered. The sale effected in respect of aforesaid land is since of his ownership, therefore, no illegality can be said to have committed in transfer of suit land in favour of defendant No. 2. Entire suit land is mutated in name of defendant No. 1 in revenue records. With aforesaid pleadings, it was prayed that suit be dismissed.

On such pleadings, trial Court framed issues namely:-

(i) whether, plaintiffs are entitled for partition and for 1/3 share of the suit property ? (ii) whether, plaintiffs are entitled for permanent injunction against defendants ?; (iii) cost and expenses.

Trial Court after allowing the parties to lead evidence and proper appreciation of the same, dismissed the suit. Trial Court held that in the light of the registered Will executed by Kalyan Singh in favour of defendant No. 1, entire suit property shall devolve upon him, therefore, plaintiffs are not entitled for 1/3 share each. Consequently, they are also not held entitled for permanent injunction against defendant No. 2 not to interfere in joint possession over the suit property.

On appeal, the first appellate Court has threadbare discussed the entire evidence on record. First appellate Court addressed on the question whether plaintiffs are entitled for 1/3 share of the suit property after death of Kalyan Singh and the Will said to be executed in favour of defendant No. 1 shall have no bearing on their rights. The first appellate Court has found that though the Will is registered but defendant No. 1 did not examined the attesting witnesses to the Will namely Ramsewak and Amar Singh. Even the scribe of the Will, Advocate Rishab Chandra Saraf has not been examined. Instead one of the attesting witness Ramsewak was examined by the plaintiffs. Ramsewak has denied that Kalyan Singh had executed the Will. He stated that Kalyan Singh had only signed on Stamp papers. He was cross-examined but nothing has come in his cross-examination dislodging the statement made by him in his examination-in-chief. The aforesaid aspect is well discussed by first appellate Court in para 10 of the impugned judgment. Law is well settled that even if the Will is registered, the same is required to be proved in the same manner as any other Will by examining the attesting witnesses to prove the factum of execution of Will and to remove the doubts to substantiate the fact that Will was executed in a disposing state of mind, free from any fear, coercion or threat. However, the trial Court did not laid emphasis on the aforesaid facts and did not record it''s satisfaction as regards factum of execution of Will by critically examining the evidence of PW/2-Ramsewak. Besides, the first appellate Court has also discussed the fact that the age of Kalyan Singh was about 75 years at the time of execution of alleged Will. With the aforesaid reasonings, it has been found that the Will was not proved in terms of provisions as contained in Section 63 of the Indian Succession Act, 1925. Accordingly, the first appellate Court has set aside the judgment and decree passed by the trial Court and by reversing the judgment and decree of trial Court held plaintiffs and defendant No. 1 entitled for 1/3 share each of the suit property. The mutation recorded in the name of defendant No. 1 based upon the aforesaid Will has also been found to be without jurisdiction and not binding upon the plaintiffs. First appellate Court has also held that the land sold by defendant No. 1 in favour of defendant No. 2 was of the joint ownership of defendant No. 1 and plaintiffs, therefore, defendant No. 1 had no authority to transfer the same on his own, therefore, same shall have no bearing on the rights of plaintiffs.

The only question of law for consideration in this appeal is as to whether on facts and circumstances of the case, first appellate Court was justified reversing the findings of the trial Court having held that Will (Ex. D/1) was not proved as required under Section 63 of the Indian Succession Act, 1925 ?

Having perused the judgment passed by the first appellate Court, this Court is of the view that the reasonings assigned by the first appellate Court for discarding the Will is absolutely in accordance with the provisions as contained under Section 63 of the Indian Succession Act, 1925 and the law laid down by Hon. Apex Court in catena of judgments viz. H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, , Ram Piari Vs. Bhagwant and others, , Meenakshiammal (Dead) through LRs. and Others Vs. Chandrasekaran and Another, and Sridevi and Others Vs. Jayaraja Shetty and Others, , as regards requirement of proving the Will.

In all aforesaid above referred cases, the settled position of law is laid down to the effect that mode of proving the Will does not differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Indian Succession Act, 1925. The onus to prove the Will in on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and proof of the signature of the testator, as required by law, need be sufficient to discharge the onus. Failing which will cannot be accepted as onus again be on the propounder to explain them to the satisfaction of the Court. Proof in either case cannot be mathematically precise and certain and should be one of satisfaction of a prudent mind in such matters. Besides the attesting witnesses must depose that testator had signed the Will before them and thereafter, they have put their signatures as attesting witnesses. For want of aforesaid evidence on record, Will cannot be said to be properly executed by testator in terms of Section 63 of the Indian Succession Act, 1925.

In the instant case, the propounder/defendant No. 1 has not led evidence of attesting witnesses. One attesting witness PW/2-Ramsewak was examined by plaintiffs who deposed that Late Kalyan Singh had not executed the Will and had only singed the stamp papers. Other attesting witness was not examined. These facts do suggest that the Will is surrounded by suspicious circumstances and the defendant No. 1 failed to discharge his burden of proving that the Will executed by the testator was free from such doubts and suspicions. Trial Court has not appreciated the requirement of law as aforesaid bearing in mind the statutory requirement of proving the Will as contemplated under Section 63 of the Indian Succession Act, 1925.

The first appellate Court, under such circumstances has rightly applied the law to the facts in hand and was fully justified in reversing the judgment and decree of the trial Court. Accordingly, the question of law is answered in affirmative and in favour of plaintiffs. Entire gamut of the matter is in the realm of facts. Appeal being bereft of merits, is hereby dismissed.