Ramnarayan And Anr vs Geeta Prasad And Ors

This second appeal preferred by the plaintifs was admitted for hearing by formulating the following substantial questions of law:-

“1. Whether the trial Court is justifed in holding that Will dated 15-06-1989 (Ex. D-9) executed by Chintamani Sharma in favour of defendants

No.1 and 2 is proved only on the ground that it has not been questioned by the plaintifs in their plaint?

Whether the frst appellate Court is justifed in affirming the fnding recorded by the trial court after having held that Will has not been proved in

accordance with Section 63 (c) of the Indian Succession Act, 1925 by recording a fnding which is perverse to the record?㲐

(For the sake of convenience, parties would be referred hereinafter as per their status shown and ranking given in the plaint before the trial Court.)

The suit property was originally held by Chintamani Dubey. He and his wife Basanti Devi died issue-less. The plaintifs are sisters’ sons of

Chintamani Dubey. Plaintif No.1 Ramnarayan is Kunti Devi’s son and plaintif No.2 Suraj Prasad Mishra is son of Bhagmen Bai. They fled suit

that they be declared title-holders of the suit land and defendants No.1 & 2 be restrained from interfering with their possession in which the

defendants setup a plea that Will dated 15- 6-1989 (Ex.D-9) has been executed by Chintamani in their favour, therefore they are title-holders.

The trial Court upon appreciation of oral and documentary evidence on record dismissed the suit holding that the plaintifs have not questioned the

unregistered Will Ex.D-9 branding the same to be fabricated or false and therefore the Will remained uncontested and as such, the plaintifs are not

entitled for any decree. The frst appeal fled by the plaintifs sufered same fate in which the frst appellate Court held that since the scribe DW-1 Geeta

Prasad is not the attesting witness and though the Will has not been proved, yet since the defendants have not sought any declaration with regard to

the Will dated 15-6-1989 to be void, therefore, the plaintifs cannot succeed the property and further held that since one Civil Suit No.156A/2001 fled

by Nanka Sharma and two others is pending consideration, the plaintifs herein can join as party and contest the same and thereby dismissed the appeal

against which this second appeal has been preferred by the plaintifs in which two substantial questions of law have been framed which have been set-

out in the opening paragraph of this judgment.

Dr. N.K. Shukla, learned Senior Advocate appearing on behalf of the plaintifs / appellants, would submit that both the Courts below have

concurrently erred in holding that the Will was required to be challenged by making an application for amendment or by fling rejoinder in view of the

provisions contained in Order 8 Rule 9 of the CPC in which the plaintif is required to answer the set-of or counter-claim in view of the provisions

contained in Order 8 Rule 9 of the CPC. As such, the fnding of both the Courts below to that extent deserves to be set-aside. He would further submit

that though the frst appellate Court has held that the Will Ex.D-9 is not proved in accordance with law, as the scribe cannot be the attesting witness in

view of the decision of the Madras High Court in the matter of Chikkanan v. A.R. Perumal and others AIR 2005 NOC 43 (Madras,) yet the frst

appellate Court declined to interfere only on the ground that the Will has not been questioned in the plaint which is contrary to the well settled law in

this behalf including the provisions contained in Order 8 Rule 9 of the CPC. Relying upon the decision of the Andhra Pradesh High Court in the matter

of K. Sajjan Raj v. Gopisetty Chandramouli 2011 SCC OnLine AP 19,8 learned Senior Counsel would also submit that the impugned judgment &

decree be set-aside and the suit be decreed.

Mr. Pawan Kumar Kashyap, Advocate appearing on behalf of Mr. Pushpendra Kumar Patel, learned counsel for respondents No.1 & 2 herein /

defendants No.1 & 2, would support the judgments & decrees of the two Courts below and submit that since the plaintiffs did not question the Will

deed executed by Chintamani Dubey in favour of defendants No.1 & 2, the Will is deemed to have been admitted by the plaintifs and as such, the

judgments & decrees of both the Courts below require to be affirmed and the second appeal preferred by the plaintifs deserves to be dismissed.

I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost

circumspection.

Answer to substantial question of law No.1: -

In a suit fled by the plaintifs claiming the suit property that they have inherited the same being the close relatives of Chintamani Dubey, defendants

No.1 & 2 fled their written statement and setup the defence of an unregistered Will having been executed vide Ex.D- 9 by Chintamani Dubey in their

favour, admittedly, which was not further questioned by the plaintifs either by fling rejoinder / additional return in terms of Order 8 Rule 9 of the CPC

which the trial Court has taken cognizance of, that since additional rejoinder has not been fled, therefore, the Will is deemed to be admitted, and

accordingly dismissed the suit which the frst appellate Court has also partly accepted.

The question is, whether the plaintifs can be compelled to fle rejoinder in respect of some special plea raised by the defendants while fling written

statement?

In order to appreciate the point, it would be appropriate to notice Order 8 Rule 9 of the CPC which states as under: -

R. 9. Subsequent Pleading.â€"No pleading subsequent to the written statement of a defendant other than by way of defence to set-of or counter-

claim shall be presented except by the leave of the Court and upon such terms as the Court thinks ft; but the Court may at any time require

a written statement or additional written statement from any of the parties and fx a time of not more than thirty days for presenting the same.㲐

This Order 8 Rule 9 of the CPC was substituted with efect from 1-7- 2002 by the CPC (Amendment) Act, 2002 (22 of 2002). However, prior to

amendment, earlier, Rule 9 is omitted by the CPC (Amendment) Act, 1999 (not enforced). Prior to its omission, the Rule stood as under: -

“9. No pleading subsequent to the written statement of a defendant other than by way of defence to a set-of (or counter-claim) shall be presented

except by the leave of the court and upon such terms as the court thinks ft, but the court may at any time require a written statement or additional

written statement from any of the parties and fx a time for presenting the same.㲐

The aforesaid rule would show that the rule is in two parts. The frst part enacts a ban on fling of subsequent pleadings after the fling of the written

statement. However, this ban is not applicable to pleadings which are by way of defence to set-of or counter-claim. The use of the word

‘pleading’ shows that the ban imposed by this rule is applicable equally on plaintif as well as defendant because a pleading by way of defence to

set-of or counter-claim can be fled only by the plaintif. But with the leave of the court subsequent pleading can be fled.

As such, Rule 9 of Order 8 of the CPC is directory in nature. The contingency of fling such a rejoinder arises, only where some new plea is

introduced by the defendant in this reply. Moreover, leave of the court is to be obtained. It is meant only for denying or clarifying the fact stated in the

written statement.

Mulla’s CPC, 19th Edition, Volume 2, at page 1988, after reviewing the case laws on the point culled out the principles deductable from which

state as under: -

(i) The plaintif cannot be allowed to introduce new pleas by way of fling rejoinder, so as to alter the basis of his plaint.

(ii) In rejoinder, the plaintif can be permitted to explain the additional facts which have been incorporated in the written statement.

(iii) The plaintif cannot be allowed to come forward with an entirely new case in his rejoinder.

(iv) The plaintif cannot be permitted to raise inconsistent pleas so as to alter his original cause of action.

(v) Application under O 8, r 9 of the Code of Civil Procedure 1908, cannot be treated as one under O 6, r 17 of the Code of Civil Procedure 1908, as

both are contextually diferent.

Similarly, the MP High Court in the matter of Mohsinali Marchant v. Fazalhussain 1991 M.P.L.J. 695 while considering the provisions contained in

Order 8 Rule 9 of the CPC has clearly held that the provisions contained in Order 8, Rule 9, Civil Procedure Code do not compel the plaintif to fle a

rejoinder challenging the allegations made in the written statement. The failure to fle a rejoinder cannot be treated as an admission of the plea in the

written statement. A plaintif cannot be compelled to fle a rejoinder if he does not choose to do so and he can very well lead evidence in rebuttal of the

allegations made in the written statement irrespective of the rejoinder denying the allegations made in the written statement. Further, the MP High

Court while relying on Veerasekhara Varmarayar v. Amirthavalliammal AIR 1975 Mad. 51, Rohanlal Choudhary v. Prem Prakash Gupta AIR 1980

Pat. 59 and Chimawa Rachaya v. Gangawa Gangadharaya AIR 1929 Bom. 413 has held as under: -

“13. I am in respectful agreement with the Madras and Patna views expressed in the aforesaid two judgments in respect of the scope and ambit of

Order 8, Rule 9, Civil Procedure Code. If the defendant in every case adopts the practice of seeking a direction against the plaintif compelling the

plaintif to fle a rejoinder in respect of some special plea raised by the defendant, then this practice will not only unnecessarily delay the proceedings in

the Court, but compelling the plaintif to fle rejoinder would also be against the provisions contained in Order 8, Rule 9, Civil Procedure Code 㲐

As such, in view of the principles of law emanating from Order 8 Rule 9 of the CPC, the principles culled out in this regard and following the

principle of law laid down by the MP High Court in Mohsinali Marchant (supra), it is quite vivid that failure of the plaintifs to fle rejoinder in respect of

the plea of Will setup by the defendants in written statement, it cannot be held that the Will is deemed to have been admitted by the plaintifs and the

defendants are dispensed with proving the execution and attestation of the Will in accordance with Section 63(c) of the Indian Succession Act, 1925

read with Section 68 of the Indian Evidence Act, 1872.

The principles which govern the proving of a Will are well settled. (See H. Venkatachala Iyengar v. B.N. Thimmajamma AIR 1959 SC 443, Rani

Purnima Devi v. Khagendra Narayan Dev AIR 1962 SC 56,7 Inder Bala Bose v. Manindra Chandra Bose AIR 1982 SC 13,3 Smt. Jaswant Kaur v.

Smt Amrit Kaur and others (1977) 1 SCC 369, Surendra Pal and others v. Dr. (Mrs.) Saraswati Arora and another (1974) 2 SCC 600, Yumnam

Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh and others (2009) 4 SCC 780, Jagdish Chand Sharma v. Narain Singh Saini (Dead) through

Legal Representatives and others (2015) 8 SCC 615 and Ramesh Verma (dead) Through Legal Representatives v. Lajesh Saxena (dead) by Legal

Representatives and another (2017) 1 SCC 257.)

17.The mode of proving a Will does not ordinarily difer 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 read with Section 68 of the Indian Evidence Act, 1872.

In H. Venkatachala Iyengar (supra), the Supreme Court has clearly held with regard to proof of Will by observing as under: -

“The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and, in deciding how it is to be

proved, reference must inevitably be made to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act

are relevant for this purpose. Under Sec. 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be

in his handwriting, and for proving such a hand-writing under Secs. 45 and 47 of the Act the opinions of experts and of persons acquainted with the

handwriting of the person concerned are made relevant of Section 68. Evidence Act deals with the proof of the execution of the document required by

law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the

purpose of proving its execution. These provisions prescribed the requirements and the nature of proof which must be satisfed by the party who relies

on a document in a Court of Law. 㲐

As such, the provisions prescribed under Section 63(c) of the Indian Succession Act, 1925 read with Section 68 of the Indian Evidence Act, 1872

are mandatory and unless the prescribed requirement are satisfed, the Will cannot be said to be proved by merely not fling additional pleading in terms

of Order 8 Rule 9 of the CPC.

Their Lordships of the Supreme Court in the matter of S.R. Srinivasa and others v. S. Padmavathamma (2010) 5 SCC 274l aid down the mode

and manner of proof of Will and summarised the legal position thereof and also summarised the legal position with regard to admissions and

evidentiary value thereof and held that mere admission about making of Will does not amount to admission of due execution and genuineness of Will,

and observed as under: -

“48. Examined on the basis of the law stated above we are unable to agree with the High Court that there was no need for independent proof of

the will, in view of the admissions made in OS No. 233 of 1998 and the evidence of PW1. In fact there is no admission except that Puttathayamma

had executed a will bequeathing only the immovable properties belonging to her in favour of Indiramma. The frst appellate court, in our opinion,

correctly observed that the aforesaid admission is only about the making of the will and not the genuineness of the will. …

In view of the above we are of the opinion that the High Court committed an error in setting aside the well- considered fnding of the frst appellate

court. The statements contained in the plaint as well as in the evidence of PW 1 would not amount to admissions with regard to the due execution and

genuineness of the will dated 18-6-1974.“

As such, the two Courts below fell into legal error in holding that since no additional pleading questioning the Will is fled, the Will stands proved

and the defendant is not required to establish due execution and attestation of the Will in accordance with law.

Answer to substantial question of law No.2: -

The frst appellate Court in paragraph 16 of its judgment held that defendants No.1 & 2 have failed to prove the Will in accordance with Section

63(c) of the Indian Succession Act, 1925 read with Section 68 of the Indian Evidence Act, 1872 relying upon the decision of this Court in the matter of

Omkar Prasad (Dead) through L.Rs. v. Bhoodhar Prasad and others AIR 2007 (NOC) 524 (Chh,. )but further held that the plaintifs cannot be

benefted by their own wrong, as the Will is not sought to be declared void. As it has already been held that the plaintifs were not required to fle

additional pleadings while questioning the Will setup in the written statement because, by virtue of Order 8 Rule 9 of the CPC the plaintif is only

required to fle additional pleading against the set-of or counter-claim, therefore, non-questioning of Will cannot be a ground to hold that the Will is

proved. Accordingly, the fnding recorded by the frst appellate Court that the plaintifs have not questioned the Will dated 15-6-1989 to be declared as

null and void, is a fnding perverse to the record and liable to be set-aside for the reasons recorded herein-above and fnding to that efect is hereby set-

aside. The second substantial question of law is answered accordingly.

Now, the question would be, to what relief, the plaintifs are entitled for?

The plaintifs have not proved that they are the only exclusive successors-in-interest of late Chintamani Dubey. They are only held to be the close

relatives of late Chintamani Dubey and that fnding has attained fnality as such, they are not entitled to inherit the property of late Chintamani Dubey,

as they have not been held to be the only sole surviving heirs of late Chintamani Dubey. As such, the appeal though is allowed in part, but judgment &

decree of the frst appellate Court is set-aside, but still the plaintifs’ suit which has been dismissed by the trial Court deserves to be maintained and

it is hereby maintained. Accordingly, the plaintifs’ suit would remain dismissed. No order to cost(s).

Decree be drawn-up accordingly.