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HIGH COURT OF MADHYA PRADESH
K. K. Trivedi, J.
Jhariyari and others v. Satya Narayan Kewat and others
Second Appeal No. 2071 of 2005 (Jabalpur); against judgment and decree dated 30.7.2005 passed by Second Additional District Judge, Rewa in Civil Appeal No.142-A/2004;
Decided on 13.1.2015
(2) Evidence Act, 1872 -- S.68 -- Will -- manner of proving -- it can be proved by statement of one attesting witness. [Para 6
(3) Will -- proved by statements of one attesting witness -- if it was not brought to notice at time of mutation -- it would not be germane ground for disbelieving same.
Held : If the Will is proved in terms of section 68 of the Evidence Act it will not become invalid only because it is not brought to the notice of the authorities at the time of mutation proceedings. [Para 6
Thus, from this evidence, the lower appellate Court has rightly held that the Will was proved, but was disbelieved by the trial Court on a flimsy ground that the same was not brought to the notice of the authorities at the time of mutation. As has been discussed, that would not be a germane ground for disbelieving the Will if the same is set out and proved in the manner indicated under the law. 1998 RN 147 (HC) distinguished. [Para 7
(4) Will -- right to -- testator of Will -- owner in possession of property in his self capacity -- recital in Will -- share not given to married daughters -- because sufficient property given to them in their marriage -- testator has right to Will according to his wish. [Para 9
(5) Civil P.C., 1908 -- S.100 -- scope of -- findings of lower appellate Court -- based on appreciation of evidence -- cannot be said to be perverse -- no error of law found -- no substantial question of law arises -- no interference called for. [Para 10
¼1½ mÙkjkf/kdkj vf/kfu;e] 1925 & /kkjk 63 & lk{; vf/kfu;e] 1872 & /kkjk 68 & fcy & lkfcr djus dh jhfr & /kkjk 63 ds mica/kksa ds fuca/kuksa ds vuqlkj lkfcr djuk visf{kr & lkFk gh lkFk lk{; vf/kfu;e] 1872 dh /kkjk 68 ds micaèkksa ds vuqlkjA ¼iSjk 6½ ¼2½ lk{; vf/kfu;e] 1872 & /kkjk 68 & fcy & lkfcr djus dh jhfr & bls ,d vuqizek.kd lk{kh ds dFkuksa }kjk lkfcr fd;k tk ldrk gSA ¼iSjk 6½ ¼3½ fcy & ,d vuqizek.kd lk{kh ds dFkuksa }kjk lkfcr dh xbZ & ;fn bls ukekarj.k ds le; tkudkjh esa ugha yk;k x;k & ;g mls vfo'oluh; ekuus ds fy, leqfpr vk/kkj ugha gksxkA vfHkfu/kkZfjr % ;fn fcy lk{; vf/kfu;e dh /kkjk 68 ds fuca/kuksa esa lkfcr dh xbZ gS] ;g dsoy blfy, vof/k ekU; ugha gksxh D;ksafd bls ukekarj.k dk;Zokfg;ksa ds le; izkf/kdkfj;ksa dh tkudkjh esa ugha yk;k x;k gSA ¼iSjk 6½ bl izdkj] bl lk{; ls] fupys vihy U;k;ky; us lgh gh vfHkfu/kkZfjr fd;k gS fd fcy lkfcr dh xbZ Fkh] fdarq fopkj.k U;k;ky; }kjk bl vk/kkj ij vfo'okl fd;k x;k fd mls ukekarj.k ds le; izkf/kdkfj;ksa dh tkudkjh esa ugha yk;k x;k FkkA tSlh foospuk dh xbZ gS] ;g fcy dks vfo'oluh; ekuus dk leqfpr vk/kkj ugha gksxk ;fn mls fof/k ds v/khu minf'kZr jhfr ls rS;kj rFkk lkfcr fd;k x;k gSA 1998 jk fu 147 ¼mPp U;k-½ izHksfnrA ¼iSjk 7½ ¼4½ fcy & djus dk vf/kdkj & fcy olh;rdrkZ & Lo;a dh gSfl;r esa laifÙk dk dCtk j[kus okyk Lokeh & fcy esa ifjo.kZu & fookfgr iqf=;ksa dks fgLlk ugha fn;k x;k & D;ksafd muds fookg esa mudks i;kZIr laifÙk nh xbZ Fkh & olh;rdrkZ dks viuh bPNkuqlkj fcy djus dk vf/kdkj gSA ¼iSjk 9½ ¼5½ flfoy izfØ;k lafgrk] 1908 & /kkjk 100 & dh O;kfIr & fupys vihy U;k;ky; ds fu"d"kZ & lk{; dh foospuk ij vk/kkfjr & foi;ZLr gksuk ugha dgk tk ldrk & fof/k dh dksbZ =qfV ugha ikbZ xbZ & fof/k dk lkjoku~ iz'u mRiUu ugha gksrk & gLr{ksi visf{kr ughaA ¼iSjk 10½
1. This second appeal by the defendants under section 100 of the Code of Civil Procedure is essentially against the judgment and decree dated 30.7.2005 passed in Regular Civil Appeal No.142-A/2004 of the Court of II Additional District Judge, Rewa arising out of judgment and decree dated 29.10.2004 passed in Civil Suit No.122-A/2004 by the Civil Judge, Class II, Teonthar, district Rewa.
2. The respondents/plaintiffs approached the Civil Court by filing a suit seeking declaration of their title and permanent injunction against the appellants/defendants. It was contended that the land in suit belonged to the respondents/plaintiffs and they have a share to the extent indicated in the plaint. It was contended in the suit that the appellants/defendants had no right over the said property, but they have tried to dispossess the respondents/plaintiffs by making illegal encroachment on the land. The suit was contested by the appellants and in fact a counter claim was filed stating that at no point of time any Will was executed in favour of the respondents/plaintiffs. It was contended that in fact the Will was never set out and, therefore, the respondents were not entitled to any relief. On the other hand, the appellants were entitled to 1/4 share of the land being Survey No.149/1 of Village Baghedi and that no Will was executed in favour of the respondents/plaintiffs by Someshwar. If any such Will was said to be executed, the same be declared null and void.
3. After filing of the written statement and counter claim, the respondents/plaintiffs withdrew their suit. The counter claim was treated to be the plaint in terms of the law of which a written statement was filed by the respondents/plaintiffs. The said claim made by the appellant was denied by the respondents and dismissal of the counter claim was sought for.
4. The trial Court framed the issues, recorded the evidence and decreed the counter claim of the appellants. The Will dated 15.10.1981 was declared to be null and void. The respondents/plaintiffs preferred an appeal against such a judgment and decree, which has been allowed and the judgment and decree granted in favour of the appellants has been set aside. Hence, this appeal.
5. It is vehemently contended by learned counsel for the appellants that there was a justified reason expressed by the learned trial Court for not believing the Will dated 15.10.1981. It is contended that the reason assigned by the trial Court for not believing the Will was that the same was never brought to the notice of anybody and was not even utilized for the purposes of getting the name mutated. Having not disclosed the Will for such a long period, it is contended by the learned counsel for the appellants, that the same was not to be believed. For the said purpose, reliance is placed by the learned counsel for the appellants in the case of Fekulal Trivedi v. Smt. Ramabai-1998 Revenue Nirnay. 147 . It is thus contended that if the Will is not proved, the claim made by the appellants was to be treated as rightly decreed by the trial Court. However, only because some of the witnesses have been examined by the respondents/plaintiffs in proof of the Will, the said Will was said to be proved and right accrued to the appellants has been denied by allowing the appeal of the respondents/plaintiffs.
6. Such a contention raised by the learned counsel for the appellants is tested. Undisputedly a Will is required to be proved in terms of the provisions of section 63 of the Indian Succession Act, 1925, if so made in accordance to the provisions of section 68 of the Indian Evidence Act. If one of the attesting witness is available and is examined, the Will is said to be proved. Whether the Will was brought to the notice of others or not, would be relevant only for the purposes of examining whether the said Will was made basis for mutation of the names in the revenue record as has been held by this Court in the case of Fekulal (supra). If the Will is proved in
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