Smt. Mobina Begum vs Narendra Kumar

Pradeep Kumar Singh Baghel, J.—This is defendant''s second appeal under section 100,C.P.C.

The plaintiff filed a suit for cancellation of will dated 31.10.1995 which his father has executed in favour of defendant no. 1 in respect of his entire property. The plaintiff is the only son of late Murari Lal. The trial court dismissed the suit on the ground that the will was a registered document and on the same day an agreement to sell was also executed by late Murari Lal, father of the plaintiff.

Plaintiff''s case was that he is the only son of late Murari Lal and he has three sisters also who are married. Father of the plaintiff was living with him and plot no. 176, khasra no. 787, area 0.191 hectare, was leased in his favour by Gaon Sabha. Both father and the plaintiff were in possession over the said agricultural plot. His father died on 22.11.2008 and his mother also died on 31.3.2009 and thereafter the plaintiff continued to be in possession over the suit property. However, later the plaintiff came to know that defendant no. 1 got a registered will executed in her favour. Relationship of plaintiff with his father was very cordial and affectionate and his father has no relationship with defendant no. 1. The defendant no. 1 and one of the property dealer-Abid Ali who was also attesting witness of the will and Pradhan of the village, hatched a conspiracy and sometime in 1995 near Dushhara festival they had taken plaintiff''s father to the court on pretext of making him a surety of bail. His father was an illiterate and simple person and taking advantage of his simplicity, the defendants have got the registered will executed by his father by playing fraud, hence the plaintiff sought relief for cancellation of the said will.

The defendant contested the suit by filing written statement. The stand taken by them was that father of the plaintiff has executed a registered agreement to sell the land, plot no. 176, khasra no. 787, area 0.191 hectare for total amount of Rs. 48,000/-. It was stated that out of the said amount, Rs. 47,500/- was paid as advance and balance of Rs. 500/- was to be paid at the time of execution of the sale deed. However, on the same day, he executed registered will also in favour of defendant no. 1. It was also stated that since there was legal requirement of no objection certificate from the Urban Ceiling authority, hence the sale deed was not executed. The trial court dismissed the suit holding that will was executed by father of the plaintiff and he could not prove that the will was obtained by fraud. The plaintiff preferred regular first appeal before learned Additional District Judge, who has allowed the appeal.

Learned counsel for the appellant submits that appellate court has erred in decreeing the suit without reversing finding of the trial court regarding validity of the will. According to the learned counsel, finding of the appellate court regarding validity of the will is perverse as without considering the basic ingredients of fraud, the said finding has been recorded.

I have heard learned counsel for the appellant and perused the record.

The plaintiff''s simple case was that his father had not executed the will in favour of defendant no. 1 who is an outsider and not a member of his family. His father was living with him and relations between the father and plaintiff were cordial and affectionate and the respondents by playing fraud has got the will executed. It is well settled that if a will is executed in favour of an outsider of the family, then there is cloud of suspicion and in that event burden of proof is always on the person who is recipient of the property or beneficiary of the will. Therefore, in the present case, a heavy burden was on the defendant to prove that the will was genuine as she was not a member of the family of late Murari Lal. In fact she was totally a stranger to the family. The defendant no. 1 as rightly pointed out by the appellate court, has not discharged her burden of proof by dispelling suspicious conditions about execution of the will regard being had to the fact that both witnesses of the will are also not family members of the plaintiff rather they are close to defendant no. 1 and one of them is a property dealer, who in his statement, could not categorically state that he is not aware of any law regarding no objection certificate required under provisions of Urban Ceiling Act. Thus, in my view, the finding of the appellate court that burden has not been discharged by defendant to dispel suspicious conditions clouding the will, does not suffer from any infirmity in the facts and circumstances of the case. The appellate court has also found that on the same day, another document i.e. agreement to sell has been executed in respect of the same property. If agreement to sell was registered in favour of defendant no. 1, she had remedy to file a suit for specific performance but she has taken recourse of getting the will executed in her favour which itself creates serious doubts regarding execution of the will itself. Both the agreement to sell and the will are registered and have been executed on the same day, hence it is clear that doubt expressed by the appellate court regarding validity of the will is justified and based on evidence on the record.

As regards the submission of learned counsel for appellant that appellate court has not reversed finding of the trial court, I find that the submission has no force. Perusal of the impugned judgment indicates that the appellate court has considered all material and evidence on record which the trial court has failed to do.

It is trite that High Court under section 100, C.P.C. has very limited jurisdiction. It can entertain second appeal under section 100 only if a substantial question of law arises. The Court under section 100, C.P.C. cannot re-appreciate evidence on record. The Supreme Court as well as High Courts have already settled law in respect of will deed, hence findings of the appellate court does not warrant for any interference in the facts and circumstances of the case.

The Supreme Court in long line of decisions has settled as to what is substantial question of law. Any question of law which affects the final decision of the case is substantial question of law. A question which has been settled by the Supreme Court or High Court will not be a substantial question of law. The Court cannot re-appreciate evidence under section 100, C.P.C. unless issue as raised has not been decided by the Supreme Court or High Court. In this connection, relevant extract of the decision of the Supreme Court in State Bank of India and others v. S.N. Goyal, (AIR 2008 SC 2594) which has consistently been followed, wherein it has considered as to what is a substantial question of law, is quoted herein under :

"9.1) Second appeals would lie in cases which involve substantial questions of law. The word ''substantial'' prefixed to ''question of law'' does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. ''Substantial questions of law'' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties. In the context of section 100 CPC, any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing in the final outcome, will not be a substantial question of law. Where there is a clear and settled enunciation on a question of law, by this Court or by the High Court concerned, it cannot be said that the case involves a substantial question of law. It is said that a substantial question of law arises when a question of law, which is not finally settled by this court (or by the concerned High Court so far as the State is concerned), arises for consideration in the case. But this statement has to be understood in the correct perspective. Where there is a clear enunciation of law and the lower court has followed or rightly applied such clear enunciation of law, obviously the case will not be considered as giving rise to a substantial question of law, even if the question of law may be one of general importance. On the other hand, if there is a clear enunciation of law by this Court (or by the concerned High Court), but the lower court had ignored or misinterpreted or misapplied the same, and correct application of the law as declared or enunciated by this Court (or the concerned High Court) would have led to a different decision, the appeal would involve a substantial question of law as between the parties. Even where there is an enunciation of law by this court (or the concerned High Court) and the same has been followed by the lower court, if the appellant is able to persuade the High Court that the enunciated legal position needs reconsideration, alteration, modification or clarification or that there is a need to resolve an apparent conflict between two view points, it can be said that a substantial question of law arises for consideration. There cannot, therefore, be a strait-jacket definition as to when a substantial question of law arises in a case."

After hearing learned counsel for the appellant and on perusal of record, in the considered opinion of this Court, no substantial question of law arises in the facts and circumstances of the case.

In the result, the appeal fails and is accordingly dismissed.