Sukh Mangal vs Laxmi Narain Chaturvedi

O.N. Khandelwal, J.—The plaintiffappellant has filed this Appeal under Section 100 of CPC against the judgment and decree dated 25.4.2003 passed by II Additional District Judge, Lucknow in Civil Appeal No.81 of 1984 Laxmi Narain Chaturvedi v. Sukh Magal, whereby reversing the finding of the trial Court, suit of the plaintiffappellant has been dismissed.

Appellant filed a suit for permanent injunction in respect of a three storied house No.134/214, Bashiratganj, Lucknow. According to the plaint allegations, plaintiff''s real brother Raj Bahadur, who was serving in Loko Workshop, Lucknow had purchased this house and was living in it. He died issueless, therefore, his widow Shiv Dasi inherited this property, who too has died. Thus the plaintiff and his sister Smt. Jaitoon being heir of the deceased have now became owner of this property.

It was further alleged that a room with verandah, kitchen and small Courtyard on the ground floor was let out to defendantrespondent by Smt. Shiv Dasi during her life time who now claims himself to be owner of this property on the basis of registered Will allegedly executed by Smt. Shiv Dasi in his favour. Defendant had even filed an injunction suit No.57/1991, which was later on dismissed as not pressed. Therefore, the defendant should be injuncted from causing any interference in the possession of the plaintiff.

The case of the defendantrespondent was that this property originally belonged to Parsadi, who had gifted it away to Raj Bahadur and Shiv Dasi. Raj Bahadur too had transferred his share to Smt. Shiv Dasi and after the death of Raj Bahadur, Smt. Shiv Dasi became sole owner of this property, who executed a Will in favour of the defendant on account of services rendered by him to Shiv Dasi as such he is owner of this property and also in possession except two rooms, which have been locked by the local police.

Necessary issues were framed by the trial Court. Since the defendant had failed to prove the Will executed in his favour in accordance with law, the plaintiff being legal heir of the deceasedShiv Dasi, was held to be owner and suit was decreed for injunction against defendant.

Aggrieved by the decision of the trial Court, the respondentdefendant filed Civil Appeal No.81/1994 Laxmi Narain Chaturvedi v. Sukh Mangal. With the permission of the Court, evidence under Order 41 Rule 31 (sic27) of CPC was adduced to prove the execution of registered Will made by Smt. Shiv Dasi on 20.4.1982 (four days before her death) in favour of defendantrespondent Laxmi Narain. Though the genuineness and due execution of the Will was challenged by the plaintiffappellant, but the learned Additional District Judge did not agree with the contentions and decided the matter in favour of defendant, who was also found in possession of original documents like Hibba Nama executed by Parsadi, registered Will executed by Raj Bahadur and medical bills relating to treatment of ailing Smt. Shiv Dasi. The plaintiff was unable to prove that he got his Bhabhi Shiv Dasi treated in the hospital or spent any money on her treatment. Several other factors have also been taken into consideration to place reliance on the Will in favour of defendant. Shiv Dasi after the death of her husband in 1974 had been living alone in that house and was therefore capable of taking independent decisions, Will was executed in the Kutcheri, she had appeared before the SubRegistrar and admitted its execution.

In the Appeal, plaintiff''s sister''s son Surya Bux was also produced to state that he used to live with and attend Smt. Shiv Dasi, therefore, she had executed a Will in his favour on 19.4.1982, which was though typed in Kutcheri, but could not be presented before SubRegistrar on the same day and could be registered under Section 40 of Registration Act after the death of Shiv Dasi. But this fact was not pleaded during the period when the trial was pending and was set up by the defendant, during the pendency of appeal. According to the lower appellate Court, Surya Bux Singh got this Will prepared in back date i.e. 19.4.1982 in an attempt to nullify the Will dated 20.4.1982 in favour of the defendant. Thus the plaintiff was not found entitled to any relief particularly in view of the fact that defendant was admittedly in possession over some portion of the property. The appeal was accordingly allowed and suit was dismissed.

The Second Appeal was admitted on the following substantial questions of law:

Whether the lower appellant Court could place reliance on inadmissible evidence when the said documents relied upon by the lower appellant Court were not relied upon by the trial Court since the said documents were not duly proved and did not relate to Smt. Shiv Dasi?

Whether the fact being admitted that the appellant being a natural heir of Smt. Shiv Dasi, the alleged Will set up by the respondent, who is stranger, the said Will will not become suspicious?

Whether the permissive possession of the respondent over some portion of the house will disentitle the plaintiff from getting the decree for permanent injunction?

I have heard the learned counsel for the parties and the law cited before me. This is not disputed that Smt. Shiv Dasi was the sole owner of this property at the time of her death. It is not necessary to enter into the controversy as to whether the house in question was purchased by Raj Bahadur or was gifted to him by one Parsaid. After the death of Shiv Dasi, plaintiff claimed himself to be legal heir of the deceased and, therefore, owner of the property. While the defendant''s case was that this property had been bequeathed to him through a registered Will dated 20.4.1982.

According to the appellant, the lower appellate Court has placed reliance on inadmissible evidence as it was not duly proved. I have gone through the judgment of the lower appellate Court, which has discussed all the relevant circumstances and evidence to accept due execution of Will dated 20.4.1982. Shri Diwakar Nath Tripathi an attesting witness had appeared before the appellante Court to prove its execution. The other attesting witness had died. Nothing has come on record to disbelieve the testimony of attesting witness. Therefore, lower appellate Court was right in relying upon the Will, the execution of which was duly proved under Section 68 of Evidence Act.

The next argument advanced is that the respondent Laxmi Narain Chaturvedi is neither a family member nor any relative of deceased Smt. Shiv Dasi. While the plaintiff is her husband''s brother and a natural heir. Therefore, the Will executed in favour of the stranger creates suspicion and should not be relied upon. Case of Ram Piari v. Bhagwant and Others, AIR 1990 SC 1742 has been referred, according to which if there is disinheritance amongst heir of equal degree and if no reason for exclusion of daughter is disclosed by testator, a father, then finding of fact as to genuineness of Will can be interfered with. But in a recent judgment pronounced by Hon''ble Supreme Court in Gurdev Kaur and Others v. Kaki and Others, (2007) 1 SCC 546: 2007 (25) LCD 399 (SC), it has been observed that where the Will bequeathed the entire inheritance of the testator to only one of several heirs and the Courts below recorded a concurrent finding that the Will was a genuine and valid document, such a finding should not have been set aside in Second Appeal and the High Court can interfere only when substantial questions of law are involved. According to Supreme Court, the Court does not sit in appeal over the right and wrong on the testators'' decision. Court''s role is limited to examine whether the same was or was not executed by the testator and whether it was the product of free and sound disposing mind. The contents of Will are to be appreciated in the context of testator''s circumstances and not vis�vis the rules of intestate succession.

Lastly it was argued that the possession of the defendant was permissive over some portion of the house and, therefore plaintiff cannot be disentitled from getting decree of injunction. But the defendant has been found to be owner of the property on the strength of a registered Will. Therefore, suit was rightly dismissed by the lower appellate Court.

No other point was argued before this Court.

Thus the appeal has no force and is dismissed with costs.

(Appeal Dismissed)