Back
2000 Supreme(MP) 1011
2001 (2) JLJ 408
R.B. Dixit, J.
Vijay Kumar Bhagwat v. Shrikant and another
Second Appeal No. 75 of 1998; against the judgment and decree passed by
II Addl. District Judge, Vidisha, in Civil Appeal No. 60-A of 1996
arising from the judgment and decree passed by the II Civil Judge Class 1,
Vidisha, in Civil Suit No. 165-A of 1994; Decided on 2.11.2000.
M.M. Kaushik and Ku. Sudha Shrivastava for appellant;
K.N. Gupta for respondents.
Headnote:(1) Succession Act, 1925 -- S. 63-- Evidence Act, 1872 -- Ss. 69, 68 and 90 -- Transfer of Property Act, 1882 -- S. 3 -- attesting witnesses of registered Will dead --formal proof not required if testamentary capacity is proved.
When the attesting witnesses are dead, the Will could be proved by bringing on record evidence of a witness who had seen the attestator and the witnesses signing the Will. That formality has duly been. proved by the evidence of Martand Rae in this case. In the circumstances, from the affirmative proof of due attestation is not absolutely necessary and the• Court ought to make a reasonable inference in the facts and circumstances of the case. AIR 1962 SC 507, AIR 1964 SC 529, AIR 1995 SC 1852 and AIR 1990 SC 396 followed. AIR 1993 Patna 129, AIR 1991 Orissa 23, AIR 1994 Kerala 85, AIR 1984 P&H 270, and (1952) 2 Calcutta ILR 56 relied on. [Para 21
(2) Succession Act, 1925 -- S. 63 -- existence of two Wills in respect of same property -- Will in favour of grandson proved -- son not having testamentary capacity to execute any Will in favour of defendants -- defendants are not entitled to claim even permissive possession under alleged Will of son.
Since the house in dispute has been amply proved to be self-acquired property of Krishna Bai and the execution and attestation of Will has been properly proved in favour of the appellant, the father of the appellant subsequently, even after being recorded as owner of the property, was left with no testamentary capacity to execute any Will in respect of the disputed house in favour of the defendants. AIR 1962. SC 507, AIR 1964 SC 529, AIR 1977 SC 63, AIR 1990 SC 396 and AIR 1985 SC 500 followed. AIR 1993 Patna 129 relied on. [Paras 20 & 21
(3) Succession Act, 1925 -- S. 63 -- Will in favour of plaintiff-appellant proved -- Will in favour of defendants not proved -- plaintiff-appellant is entitled to inherit and become sole owner. AIR 1962 SC 507, AIR] 964 SC 529, AIR 1977 SC 63, AIR 1990 SC 396, AIR 1985 SC 500 and AIR 1995 SC 1852 followed. AIR 1993 Patna 129, AIR 1991 Orissa 23, AIR 1994 Kerala 85, AIR 1984 P & H 270 and (1952) 2 Calcutta ILR 56 relied on. [Paras 21 & 20
¼1½ mÙkjkf/kdkj vf/kfu;e] 1925&/kkjk 63&lk{; vf/kfu;e] 1872&/kkjk 69] 68 rFkk 90&laifÙk varj.k vf/kfu;e] 1882&/kkjk 3&jftLVªhÑr foy rkjh[k foys[k dk vuqçek.kd lk{kh e`r&;Fkkjhfr lcwr visf{kr ugha ;fn
olh;rh {kerk lkfcr dj nh tk,A
tc vuqçek.kd lkf{k;ksa dh e`R;q gks xbZ gks] fcy] ,sls lk{kh dk lk{; vfHkys[kxr djds lkfcr fd;k tk ldrk Fkk ftlus olh;rdrkZ rFkk lk{khx.k dks foy ij djrs ns[kk FkkA ;g vkSipkfjdrk bl ekeys esa ekr±M jko ds lk{; }kjk lE;d :i ls lkfcr dh xbZ gSA bu ifjfLFkfr;ksa esa] lE;d~ vuqçek.ku dk ldkjkRed lcwr loZFkk vko‘;d ugha gSa vkSj ekeys ds rF;ksa rFkk ifjfLFkfr;ksa esa U;k;ky; }kjk ;qfDr;qDr vuqeku fd;k tkuk pkfg, FkkA , vkb vkj 1962 ,l lh 507] , vkb vkj 1964 ,l lh 529] , vkb vkj 1995 ,l lh 1852 rFkk , vkb vkj 1990 ,l lh 396 vuqlfjrA , vkb vkj 1993 iVuk 129] , vkb vkj 1991 mM+hlk 23] , vkb vkj 1994 dsjy 85] , vkb vkj 1984 iatkc vkSj gfj;k.kk 270 rFkk ¼1952½ 2 dydÙkk vkb ,y vkSj 56 voyafcrA ¿iSjk 21
¼2½ mÙkjkf/kdkj vf/kfu;e] 1925&/kkjk 63&,d gh laifÙk ds ckjs esa nks foyksa dk vfLrRo & ikS= ds i{k esa foy lkfcr & iq= dks çfroknhx.k ds i{k esa foy fu"ikfnr djus dh olh;rh {kerk ugha&çfroknhx.k] iq= dh vfHkdfFkr foy ds v/khu vuqKs; dCts ds Hkh gdnkj ughaA
D;ksafd fooknxr edku Ñ".kkckbZ dh LokftZr laifÙk gksuk çpqjrk ls lkfcr gks x;k gS rFkk foy dk fu"iknu vkSj vuqçek.ku vihykFkhZ ds i{k esa leqfpr :i ls lkfcr dj fn;k x;k gS] rRi‘pkr~ laifÙk dk Lokeh vfHkfyf[kr gksus ij Hkh vihykFkhZ ds firk dks fooknxzLr ?kj ds ckjs esa çfroknhx.k ds i{k esa dksbZ foy fu"ikfnr djus dh olh;rh {kerk ugha FkhA , vkb vkj 1962 ,l lh 507 , vkb vkj 1964 ,l lh 529] , vkb vkj 1977 ,l lh 63] , vkb vkj 1990 ,l lh 396 rFkk , vkb vkj 1985 ,l lh 500 vuqlfjrA , vkb vkj 1993 iVuk 129 voyafcrA ¿iSjk 20 ,oa 21
¼3½ mÙkjkf/kdkj vf/kfu;e] 1925&/kkjk 63&oknh&vihykFkhZ ds i{k esa foy lkfcr&çfroknhx.k ds i{k esa foy lkfcr ugha&oknh&vihykFkhZ mÙkjkf/kdkj esa çkIr djus vkSj ,dek= Lokeh cuus dk gdnkj gSA , vkb vkj 1962 ,l lh 507] , vkb vkj 1964 ,l lh 529] , vkb vkj 1977 ,l lh 63] , vkb vkj 1990 ,l lh 396] , vkb vkj 1985 ,l lh 500 rFkk , vkb vkj 1995 ,l lh 1852 vuqlfjrA , vkb vkj 1993 iVuk 129] , vkb vkj 1991 mM+hlk 23] , vkb vkj 1994 dsjy 85] , vkb vkj 1984 iatkc vkSj gfj;k.kk 270 rFkk ¼1952½ 2 dydÙkk vkb ,y vkj 56 voyafcrA ¿iSjk 21 ,oa 22
1. This appeal involves a peculiar situation where all the attesting witnesses of a registered Will had expired before they could be examined in the trial Court.
2. The facts in brief shorn of details and necessary for the disposal of this appeal lie in a narrow compass.
The appellant-plaintiff brought a suit (No. 165-A/ 94) in the Court of Second Civil Judge Class-I, Vidisha, for declaration and possession in respect of suit-house claiming its ownership on the basis of a registered Will dated 29.1.1957 (Ex.D/1) in favour of respondents alleged to have been executed by his father Laxman Rao, as fake and false. He has also claimed mesne profit. It is alleged that respondents had occupied a portion of the suit-house as a tenant of his father and, therefore, also claims mesne profit at the rate of 150/- per month.
3. The respondents-defendants had contested the suit on the ground that the house belonged to father of the appellant. However, since appellant never resided with his father and was carrying on business independently elsewhere while the respondents were living with the father of the appellant and had served him throughout his life and, therefore,' he had bequeathed the suit-property in their favour by a registered Will dated 31.3.1983 and since then they are occupying the house in their capacity as a full owner.
4. The learned trial Court, vide judgment dated 17.9.1996, found the Will executed (Ex.P/7) in favour of the plaintiff well proved. However, disbelieved the Will (Ex.D/1) in favour of the respondents and decreed the suit in favour of the plaintiff-appellant against which respondents filed first appeal before the Second Additional Judge to District Judge, Vidisha, and the learned first appellate Court allowed the appeal holding that the Will in favour of appellant was not at all proved. It is as against the judgment and decree of the first appellate Court, the second appeal has been admitted on the following substantial questions of law:
(1) "Whether the Will (Ex.P/7) in favour of the plaintiff-appellant is not required to be proved formally when attesting witnesses are dead?
(2) Whether even after Will (Ex.P/7) is not proved and where the alleged Will (Ex.D/1) in favour of the defendants is also not proved, the defendants-respondents are entitled to claim permissive possession as against the real owner of the property?
(3) Whether plaintiff-appellant became sole owner of the disputed property after the death of his father Laxman Rao ?"
5. It has been contended by the learned counsel of the appellant that since both the Courts below had come to a definite finding that the suit-house is a self-acquired property of deceased Krishna Bai, grandmother of the appellant, she was within her right to dispose of her property by way of Will in favour of the appellant-plaintiff excluding her son Laxman Rao. It is further to be seen that where all the attesting witnesses by a registered Will are .dead and particularly when the defendant-respondents had not raised any plea causing suspicion on the execution of the Will, the learned first appellate Court erred in law, holding that the Will in favour of appellant was not duly proved.
6. In a larger Bench decision of the Apex Court in case of Rani Purnima Debi and another v. Kumar Khagendra Narayan reported in AIR 1962 SC 507, it was observed that if a Will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a Will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought 'home to the testator that the document of which he was admitting execution was a Will disposing of his property and thereafter he admitted its execution and signed
