Smt. Bhagwanti vs Smt. Sita Devi and others

J.V. Gupta, J.—This is defender''s second appeal against whom the suit for declaration was dismissed by the trial Court, but has been decreed in appeal.

One Kidar Nath was the owner of the house in dispute. He died issueless in the year 1963. The plaintiff respondent Shrimati Sita Devi claimed herself to be the brother''s daughter of Kidar Nath and thus, claimed the property left behind by him. In the written statement filed on behalf of Smt. Bhagwanti, defendant-appellant a registered will executed by Kidar Nath dated 9th January, 1961 was set up. By virtue of that will, Smt. Kamla Devi defendant No. 1 was given the right of residence till her life time and after her death, Smt. Bhagwanti defendant-appellant was to be the absolute owner of the suit property. It may be mentioned here that Smt. Kamla Devi defendant admitted the claim of the plaintiff and did not contest the suit. On the pleadings of the parties, the trial Court framed the following issues:--

Whether Kidar Math had executed a will on 9/1/1961 as alleged by Bhagwanti defendant in her written statement? OPP

If issue No. 1 is not proved, whether the plaintiff if the heir of Kidar Nath? OPP

Relief.

Under issue No 1, the trial Court came to the conclusion that Kidar Nath had executed the will dated January 9, 1961, as alleged by Smt. Bhagwanti in her written statement. Issue No. 2 was decided in favour of the plaintiff and it was held that she is the only legal heir of Kidar Nath (deceased). In view of the findings under issue No. 1, plaintiff''s suit was dismissed. In appeal, the learned Additional District Judge, Sonepat reversed the findings of the trial Court under issue No. 1 and he came to the conclusion that the defendant Smt. Bhagwanti had failed to prove the execution of the will Ex. D2 in her favour by Kidar Nath. Consequently, the decree of the trial Court was set aside and the plaintiff''s suit was decreed. Dissatisfied with the same, the defendant has come up in second appeal in this Court.

The learned counsel for the appellant contended that no objection to the mode of proof of the will Ex. D2 could be allowed to be taken in appeal when no such objection was taken by the plaintiff in the trial Court. In support of his contention, he referred to Bhagwan Dass and Another Vs. Khem Chand and Others, and Jet Ram etc. v. Harkesh major etc ( 1973 Cri L.J. 373)

It was next contended that the will, certified copy of which is Ex. D2 on the record, was duly proved by producing the scribe Mam Chand (DW3) and one of the attesting witnesses Sardari Lal (DW4). The approach of the trial Court in this respect was correct, but the lower appellate Court has reversed that finding illegally on surmises and conjectures and against the evidence on record. In support of this contention, reliance was placed on Rameshwar v. Smt. Nand Kaur etc 1981 C.L.J. 395.

On the other hand, learned counsel for the respondents submitted that even if no objection as to the mode of proof of the will was available to the plaintiff respondent, the will was not duly proved, as required u/s 63 of the Indian Succession Act. According to the learned counsel, it was not a lis between the parties and it was for the defendants who set up the will in their favour to prove the same to the satisfaction of the Courts below. In this connection, a reference was made to Ramchandra Rambux Vs. Champabai and Others, and Smt. Jaswant Kaur Vs. Smt. Amrit Kaur and Others,

I have heard the learned counsel for the parties and have also gone through the pleadings and the record. The will set up by Smt. Bhagwanti in her written statement and in the replication filed thereto, the plaintiff only pleaded ignorance. The execution of the will was never denied as such. The defendant, in order to prove the will, produced its acribe Mam Chand (DW3). He has categorically stated that Kidar Nath signed the will in his presence. He has further stated that Sardari Lal and Shiba were the marginal witnesses of the will and Sardari Lal''s also Lamberdar. Kidar Nath was in his senses at the time of the execution of the will. Surprisingly, no question of any kind with respect to the will was put in his cross-examination. Sardari Lal, one of the marginal witnesses, appeared as DW4. He has stated in his examination-in chief that Mam Chand had scribed the will at the instance of Kidar Nath who was in his senses at that time He has further stated that he also signed the same. There is absolutely no cross-examination of this witness. The only question put to him was as to how Smt. Sita Devi plaintiff was related to Kidar Nath. Smt Kamla Devi defendant, who, though admitted the claim of the plaintiff, was also produced as DW5. She admitted in her examination-in chief that she had ejected one Mukandi Lal from the house in dispute on the basis of the will Ex. D2 in her favour. No question was put to her either in her cross-examination with respect to the will. From this evidence, it could not be successfully contended on behalf of the plaintiff-respondent that the will was not duly proved in accordance with the provisions of section 63 of the Indian Succession Act. Since the witnesses were not cross-examined on the question of attestation, it can properly be inferred that there was due attestation. A reference in this respect is made to Rameshwar v. Smt. Nand Kaur etc 1981 C.L.J. 395.

It may be mentioned that the defendant appellant Smt. Bhagwanti was not a stranger to the testator Kidar Nath. Mukandi Lal husband of Smt. Bhagwanti appeared as DW1. He has stated in his examination in-chief that Smt. Bhagwanti defendant (his wife) was related to Kidar Nath through his wife Smt. Chand and that he has been serving the deceased during his life time. The said statement was never challenged by the plaintiff in his cross-examination. Under these circumstances, the approach of the lower appellate Court is mis conceived and against the evidence on the record. The approach of the trial Court in this respect is more convincing and logical.

As a result of the above discussion, this appeal succeeds. The judgment and decree of the learned lower appellate Court are set aside and those of the learned trial Court are restored with costs.