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1959 Supreme(MP) 265
High Court Of Madhya Pradesh
Shiv Dayal Shrivastava, J.
TULSIRAM - Appellant
Versus
SHYAMLAL GANPATLAL - Respondents
Second Appeal 122 Of 1959
Decided On : 09/30/1959
A.N.Kak, M.L.GUPTA
The burden of proof lies with the propounder of a will, and suspicious circumstances surrounding the will can make the initial burden heavy.
Headnote:KEYWORD - Will Subject: Disputed will and ownership of property None referenced The plaintiff filed a suit for declaration of title and possession of a property based on a will allegedly executed by the deceased owner. The defendants challenged the genuineness of the will and claimed their own rights to the property. The trial court found the will of 1920 to be valid and passed a decree in favor of the plaintiff. On appeal, the appellate court held that the disputed will of 1950 was proved and dismissed the suit. The second appeal was filed challenging the competency of the appeal before the appellate court and the credibility of the disputed will. The court found that the appeal was competent and analyzed the evidence and circumstances surrounding the disputed will. The court concluded that the defendants failed to remove suspicions about the genuineness of the will and allowed the plaintiff's appeal, restoring the trial court's decision regarding title and possession. The court also ordered an inquiry into mesne profits.
Fact of the Case:
The plaintiff filed a suit for declaration of title and possession of a property based on a will allegedly executed by the deceased owner.Finding of the Court:
The court found that the defendants failed to remove suspicions about the genuineness of the disputed will.Ratio Decidendi:
The burden of proof is on the propounder of a will, and the presence of suspicious circumstances makes the initial onus heavy. The court must cautiously scrutinize the evidence led by the propounder. Final Decision: The court allowed the plaintiff's appeal, restored the trial court's decision regarding title and possession, and ordered an inquiry into mesne profits.( 1 ) THIS second appeal arises out of a decree passed by the Additional District Judge, Gwalior, reversing the decree passed by the Civil Judge, first class, Lashkar, whereby the plaintiff's suit for declaration of title and possession was decided in favour of the plaintiff. Tulsiram instituted this suit on 10-7-1950, on the allegations that Smt. Kapolibai was the owner of the suit property, that she died on 2-4-1950, leaving a will dated 19-5-1920 whereby she bequeathed in his favour the suit house -and other movable property, and that the defendants took wrongful possession, of it. He also complained in the plaint that the defendants had thrown out stone slabs kept in two-rooms and occupied them and. further, that Shyamlal (defendant No. 1) had given notice to the tenants residing in another portion of the house asserting. his own title.
( 2 ) INITIALLY there were two defendants namely (1) Shyam Lal minor son of Ganpatilal and (2) Rewadmal. Later on Ganapatlal was also made a. defendant (No. 3 ). On September 12, 1950, Rewadmal filed his written statement. On 285-1951, a written statement was filed on behalf of Shyamlal and on 18-121951, Ganapatlal's written statement was filed. The three defendants resisted the plaintiffs suit on three different grounds. Rewadmal claimed that the house was bequeathed to him by Kapolibai under a will dated 11-4-1950. That will is marked as Ex. D1 and shall heareafter be called the 'disputed will. ' Shyamlal claimed the title to the house in himself. Ganapatlal did not claim the house either for himself or for Shymlal, but he asserted the title of Rewadmal On a different ground. According to him Rewadmal was the owner of the suit property for 30 years and more. The defendants challenged the will of May 19, 1929 executed by Kapoli Bai in favour of Tulsi Ram plaintiff.
( 3 ) SHYAM Lal defendant No. 1 is the son of Ganpat Lal defendant No. 3. Rewadmal defendant No. 2 was the brother of Ganpatlal defendant No. 3, but it is said that the former was adopted by their uncle, Nathoo Lal and so they became cousins. There is nothing on the record to suggest any relationship between Rewadmal and Kapolibai, but it is said in the disputed will that he had served her for a long time. Tulsi Ram plaintiff is Kapoli Bai's sister's son.
( 4 ) TODAY the will dated May 19, 1920 is not disputed and Shri Kak concedes that it is a valid and operative will, subject to such rights as were conferred on Rewadmal under the disputed will. Shyamlal was a minor when this case was before the courts below and also when this decree was preferred. Now he has attained the age of majority. Shri Kak represents him as also Canpatlal.
( 5 ) REWADMAL died on 12-2-1954. An application was made by the plaintiff on 17-3-1954, praying that Ganpatlal be brought on record as legal representative of Rewadmal and if Shyamlal was found to be the legal representative of the deceased he may be brought on record in that capacity and, further, since both Ganpatlal and Shyamlal were defendants in the suit, the name of Kapoli Bai be struck off. This application was allowed by the trial Judge on March 30, 1954 because neither Ganpatlal nor Shyamlal raised any objection to it. In my opinion this was not proper. The learned trial Judge should have decided which of the two defendants was entitled to re-present Rewadmal in this suit. Obviously, Shyamlal could not be his legal representative because Ganpatlal came first in the order of succession. Any way, that is wholly immaterial for the decision of this appeal. The learned trial Judge found that the will dated May 19, 1920, had been fully proved and thereunder Tulsiram succeeded to the properties bequeathed thereby. As regards the disputed will of 1950 he found that its genuineness was doubtful and that the will had not been proved to the satisfaction of the Court. In the result he passed a decree in favour of the plaintiff as prayed for by him except that the relief of mes
