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Rajasthan High Court, Jaipur Bench
Honble A.C. GOYAL, J.
Jai Raj Singh & Another - Appellant
Versus
Shanti Kishan Singh & Another - Respondents
S.B. Civil First Appeal No. 344 of 1999
Decided On : February 13, 2004
Family arrangement can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties is to be founded. It is generally prepared as a record of what had been agreed upon. Per contra, learned counsel for the respondents contended that a bare reading of this document Ex.A-2 shows that it is partition in presenti and not a memorandum of partition made in the past and thus it is clearly a deed of partition. Hence, it was rightly held inadmissible in evidence in absence of its registration. (Para 19)
The mode of proving a will does not ordinarily differ from that of proving any other document except to the special requirement of attestation. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Even where circumstances give rise the doubts, it is for the propounder to satisfy the conscience of the Court. (Para 29)
(2). On 22.2.1992, the plaintiff Smt. Shanti filed a Civil Suit against her elder son and his wife for possession and permanent injunction with the averments that Plot No. 93, situated in Dhuleshwar Garden, Jaipur, was purchased by her vide registered sale-deed dated 26.12.1958 (correct year is 1957) from Maharawal Shri Sangram Singh. Constructions on ground floor were raised during the period of 1959 to 1961 and the first floor was got constructed by her in the year 1984, with her own income and loan advanced by the bank and thus it is her self acquired property.
(3). That the plaintiff is residing in Jaipur since 1959 and in this plot since 1961. Her elder son defendant No. 1 was married to defendant No. 2 in the year 1974. Thereafter both the defendants started residing at Kota in a house which was constructed with the income of joint family.
(4). That in the months of May, June 1990, the defendant No. 1 expressed his willingness to shift his family at Jaipur. She allowed the defendants to reside on the ground floor and also permitted them to use furniture and other house-hold articles. She also continued to reside in remaining portion of the ground floor while Smt. Shobha Singh wife of her younger son Prithvi Raj Singh was already residing on the first floor with her children and her younger son Prithviraj Singh was serving in a tea-garden at Assam.
(5). That litigation with regard to ancestral properties of her husband and his brothers was going on and for that Prithviraj Singh and her daughter Smt. Jaishree had given power of attorney to the defendant No. 1 in the year 1982. The plaintiff on account of her illness had gone to Assam in November 1990 and returned to Jaipur in May 1991. At that time she also signed some blank stamp papers and other papers on pursuance of the defendant No. 1 for execution of power of attorney with regard to litigation of ancestral property and thereafter she came to know that some document was prepared on 28.5.1999 by the defendant No. 1 claiming himself to be the owner of this property.
(6). That she again left Jaipur in June 1991 and came back to Jaipur in September 1991 and at that time the defendants did not allow her to reside on the ground floor and she was beaten by them. Thereafter she asked the defendants to vacate and hand-over the vacant possession of the ground floor to the plaintiff but they declined to do so hence the suit.
(7). The defendants in their written statement filed on 23.11.1994, denied all the averments/allegations made in the plaint with a plea that this plot was purchased by Shri Kishan Singh, father of the defendant No. 1 and only on account of the sale deed being in the name of the plaintiff, she is not the owner of this plot. She was having no source of income to pay the price of the plot as well as to incur any expenditure in construction of the house. The ground floor was got constructed by Kishan Singh with his own income and the first floor was constructed with the income of the defendant No. 1 and thus this is joint family property.
(8). That late Shri Kishan Singh was posted as Dy. Supdt. of Police at Jaipur from 1959 to 1963 and thereafter he remained posted at Bombay, Dhoulpur and Kota upto 1970 and the plaintiff used to reside with Shri Kishan Singh and thus it is not correct to say that she was residing at Jaipur since 1959. While admitting the facts relating to giving power of attorney to the defendant No. 1 to lookafter the litigation with regard to ancestral properties, it was pleaded that vide family partition, document dated 28th May 1991, the properties at Jaipur and Kota were divided between the plaintiff, the defendant No. 1 and his younger brother Prithvi Raj Singh and thus the defendants
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