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1993 Supreme(MP) 462
High Court Of Madhya Pradesh
A. R. TIWARI
BHERULAL - Appellant
Versus
RAMKUNWARBAI - Respondents
First Appeal 63 Of 1976
Decided On : 08/12/1993
N.K.SANGHI, S.D.SANGHI
A will must be duly executed and authenticated, and the propounder must remove any legitimate doubts surrounding its validity. Disinheritance of a son without any apparent reason is a suspicious circumstance that requires explanation.
Headnote:
WILL - EXECUTION AND VALIDITY - PROOF - BURDEN OF PROOF - SUSPICIOUS CIRCUMSTANCES - DISINHERITANCE OF SON - NATURAL SUCCESSION.
Fact of the Case:
The appellant, Bherulal, filed a suit for partition and separate possession of two houses, claiming to be the natural son of Motilal, the deceased owner. The respondents, including Motilal's second wife, Ramkunwarbai, and their children, resisted the claim, relying on a will executed by Motilal bequeathing his entire rights to Ramkunwarbai. The trial court dismissed the suit, holding that the will was valid and that Bherulal had no right or interest in the properties.
Finding of the Court:
The High Court reversed the trial court's decision, holding that the propounder of the will had failed to prove its due execution and authenticity by sufficient and legal evidence. The court found that the attesting witness's testimony was unreliable and that there was no evidence to show that the testator was in a sound and disposing state of mind when he executed the will. The court also noted that the will contained suspicious circumstances, such as the disinheritance of the appellant, and that these circumstances were not dispelled by the propounder.
Issues: 1. Whether the will executed by Motilal was valid and enforceable. 2. Whether the appellant, as the natural son of Motilal, was entitled to a share in the properties.
Ratio Decidendi: 1. The burden of proving the due execution and authenticity of a will lies on the propounder. 2. Where a will is surrounded by suspicious circumstances, the propounder must remove all legitimate doubts in the matter. 3. Disinheritance of a son without any apparent reason is a suspicious circumstance that requires explanation. 4. In the absence of sufficient and satisfactory evidence to prove the validity of the will, the court will not uphold it.
Final Decision: The High Court allowed the appeal, set aside the trial court's judgment and decree, and decreed the suit in favor of the appellant. The court declared that the appellant was entitled to a 3/10th share in the suit properties, while the respondents were entitled to the remaining shares in the proportions specified in the judgment.
( 1 ) THIS first appeal, filed under Section 96 of the Code of Civil Procedure (for short 'the Code') is directed against the judgment and decree dated 19-1-1976 rendered by the 1st Addl. Judge to the Court of District Judge, Ratlam in Civil Suit No. 2-A/75 thereby dismissing the appellant's suit for partition and separate possession of the suit-houses.
( 2 ) THE factual matrix in brief is that the deceased Motilal and Gendalal were two real brothers. The elder brother Gendalal was unmarried and died issueless, on 24-10-54. The appellant-plaintiff Bherulal was born to Motilal from first wife. The two daughters (Chamelibai and Shantibai) and one son (Rajendra Kumar), respondents Nos. 2 to 4 were born to Motilal from his second wife, Ramkunwarbai (respondent No. 1 ). Motilal also died in 1969. The house situated in Kothari was, Ratlam stood in the name of the brothers Gendalal and Motilal whereas the other house situated as Station Road stood in the name of Gendalal alone. Bherulal came with a case that he was an adopted son of Gendalal (this plea is given up in this appeal ). On refusal of the demand of partition of these two houses, the appellant filed the civil suit as above and claimed the damages at the rate of Rs. 200/- per month for wrongful use and occupation. The respondents resisted the claim and contended that one house belonged to the deceased Motilal whereas the another house was acquired by both the brothers, although in the name of Gendalal. The adoption was also disputed. It was pleaded that on death of Gendalal Motilal became the sole owner of both the houses and that in his lifetime Motilal executed a will on 15-6-59 (Ex. D/1) bequeathing his entire rights to his wife Ramkunwarbai respondent No. 1. On this linchpin, it was averred that the appellant possessed no right, title or interest. Certain other objections were also raised. On evaluation of the evidence the trial Court held that the alleged adoption was not proved, that Ramkunwarbai became the exclusive owner of the suit houses after the death of her husband Motilal and acquired exclusive rights on the basis of the will (Ex. D/1 ). On the basis of this conclusion the suit of the appellant was dismissed. Aggrieved by this judgment and decree, the appellant has preferred this first appeal
( 3 ) I have heard Shri S. D. Sanghi, learned Senior counsel with Shri N. K. Sanghi for the appellant and Shri Vyas with Shri Apte, learned counsel for the respondents and have perused the record.
( 4 ) THE fate of the case hinges on the will dated 15-6-59, marked in this case as Ex. D/1. It is this document on the linchpin of which the trial Court negatived the claim of the appellant-plaintiff and concluded that the respondent-defendant No. 1, Ramkunwarbai, became the sole owner of the disputed two houses. The relevant issues are Nos. 3 and 4 (a) (b ). The discussion is contained in paras 14 to 19 of the impugned judgment. This part has been vehemently oppugned.
( 5 ) SHRI S. D. Sanghi, learned Senior Counsel for the appellant, has criticised the approach and eventual conclusion and urged that it deserves to be subverted. The question posed before me is whether the appellant, natural son of Motilal, Predecessor-in-interest, was liable to be so excluded from natural succession and was rightly divested of his right?
( 6 ) SHRI Sanghi, in his inimitable style, strenuously submitted that suit was not liable to fail in its entirety in any case and that even, on validity of will, the appellant was not without the right and remedy. He urged that- (a) In case of validity of will, the appellant shall get 3/4 x 1/3=1/4 share as only 3/4 would be available for devolution, 1/4 going to the legatee. (b) In case of invalidity of will, on notional partition 1/4 each will go to Motilal, Rajendra Bherulal and Ramkunwarbai and on death of Motilal, his 1/4 share will go to widow, 2 sons and 2 daughters, i. e. each one getting 1/20. Thus, the appellant will get 1 / 4 + l/20=3/1
