Smt. Seema Devi and Another vs Anil Mishra and Others

Hon''ble Sibghat Ullah Khan, J.—Heard Learned Counsel for the appellants and Sri Rajeev Tiwari, Learned Counsel, who has appeared for respondent no. 1 through caveat at the admission stage.

This is plaintiffs'' second appeal arising out of O.S. No. 50 of 2000 which was filed by Smt. Suman Siya-respondent no. 3, Smt. Seema Devi and Rajesh Babu appellants against Anil Mishra and Ram Babu respondent nos. 1 and 2. The suit was filed for cancellation of sale deed dated 05.02.2000 executed by defendant no. 2 Ram Babu in favour of defendant no. 1-Anil Mishra of 1/3rd share in the agricultural land. The following pedigree is relevant to appreciate the controversy:-

The case of the plaintiffs was that firstly Ram Sewak had sold his half property to plaintiff no. 1/respondent no. 2 Smt. Suman Siya on 17.05.1991 and secondly Ram Sewak on 15.01.2000 (two days before his death) had executed an unregistered will of remaining land in favour of plaintiff-respondent nos. 2 and 3. The defendants-respondents denied both the deeds.

The trial court/ Additional Civil Judge (Junior Division) Chhibramau, District Kannauj decreed the entire suit holding that the sale deed dated 17.05.1991 and will dated 15.01.2000 were quite valid. The suit was decreed on 24.07.2010 and sale deed dated 05.02.2000 was cancelled in its entirety. Against the decree passed by the trial court, Anil Mishra-defendant no. 1 in whose favour disputed sale deed dated 05.02.2000 had been executed filed Civil Appeal No. 41 of 2010.

The appeal was allowed in part by Additional District Judge, Court No. 1, Kannauj on 07.12.2011. Impugned sale deed was cancelled only to the extent of 50% share sold through that (1/6th of the entire land) and judgment and decree passed by the trial Court was varied to that extent. Lower Appellate Court held that sale deed dated 17.05.1991 executed by Ram Sewak in favour of plaintiff no. 1 was perfectly valid, however, it was held that the will dated 15.01.2000 had not been proved. Accordingly, it was held that defendant no. 2 Ram Babu one of the three sons of Ram Sewak had 1/6th share in the property of Ram Sewak and not 1/3rd as half property had already been sold by Ram Sewak to plaintiff no. 1 on 17.05.1991.

During arguments, the Court enquired from Learned Counsel for the respondent no. 1 as to whether respondent no. 1 also intended to file second appeal against the judgment and decree passed by the lower appellate court. Learned Counsel for the respondent no. 1 filed an affidavit of respondent no. 1 dated 28.02.2012 stating therein that respondent no. 1 did not intend to challenge the judgment and decree passed by the Lower Appellate Court and he was satisfied by the same and was willing to take half property under the sale deed dated 05.02.2000.

The only question to be decided in this second appeal is as to whether the view of the Lower Appellate Court that Ram Sewak had not executed the will dated 15.01.2000 is correct or not. In this regard Lower Appellate Court has given various reasons. I agree with the Learned Counsel for the appellants that some of the reasons given by the Lower Appellate Court for holding the will to be surrounded by suspicious circumstances are not correct as discussed below:

Lower Appellate Court wrongly held that the witnesses of the will had not proved the original will which had been filed in another case and the file of the said case (revenue case pertaining to mutation) had been summoned. The witnesses referred to the original Will which was available in the summoned file.

Lower Appellate Court wrongly held that statements of witnesses had not proved formal execution and attestation of the Will.

However, in my opinion, the following three circumstances taken into consideration by the Lower Appellate Court for holding that the Will was not genuine are sufficient by themselves to hold the Will to be not genuine.

i. The witnesses of the plaintiffs stated that Ram Sewak himself purchased the stamp paper and gave to the scribe to write the Will on the same day on which the Will was written. However, the stamp paper over which Will was written was shown to have been purchased on 04.01.2000. This is a very vital circumstance to hold that the witnesses of the plaintiffs were not telling the truth regarding the execution of the Will.

ii. In the Will, age of Ram Sewak is mentioned as 84 years, however, one of the witnesses of the plaintiffs P.W. 2 Munish Kumar stated that age of Ram Sewak was 75 years.

iii. Rajesh Babu one of the three sons of Ram Sewak and one of the two legatees under the Will examined himself as P.W. 1 and stated that the other two sons of his father Ram Sewak i.e. Ram Babu as well as Shayam Babu often beat Ram Sewak and once Ram Sewak had to be admitted in hospital due to the beating and F.I.R. had also been lodged. He also stated that Ram Babu, Shayam Babu and their families did not participate in the rites and rituals connected with the death of Ram Sewak. Lower Appellate Court held that in view of this it was inconceivable that Ram Sewak would execute the Will in favour of Seema Devi wife of Shyam Babu also. In the Will it was mentioned that legatees i.e. Rajesh Babu and Seema Devi wife of Shyam Babu took good care of the executant Ram Sewak.

It was admitted by the plaintiffs that Shyam Babu and his wife were residing together and there was absolutely no difference or dispute between the two.

Accordingly, even though, it is held that some of the circumstances mentioned by the Lower Appellate Court for holding the Will to be suspicious are irrelevant but the above mentioned three circumstances were rightly taken by the Lower Appellate Court to be extremely suspicious. The finding regarding the Will to be not proved is, therefore, legally correct.

Learned Counsel for the appellants has cited two authorities of Supreme Court one is reported in Sridevi and Others Vs. Jayaraja Shetty and Others, and Vidya Wanti and another Vs. Durga Das (2008) 7 SCC 216. These authorities do not advance the case of the appellants.

Accordingly, I do not find any error in the findings of the Lower Appellate Court that the Will said to have been executed by Ram Sewak two days before his death was in fact not executed.

Second Appeal is, therefore, dismissed under Order 41 Rule 11 CPC.