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2020 Supreme(MP) 472
(HIGH COURT)
G. S. Ahluwalia, J.
Hanuman (Minor) and others v. Ramlakhan and another
Second Appeal No. 359 of 2011 (Gwalior): against the judgment and decree dated 16.3.2011 passed by the District Judge, Sheopur in Civil Appeal No. 16-A/2010; Decided 0n 4.3.2020.
Pradeep Kumar Shrivastava for appellants.
Headnote:
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(1) Will -- burden and manner of proof -- barden of proof is on propounder of Will -- all suspicious circumstances should be removed -- reasonable doubts attached to Will should be explained -- Will should be proved as per S. 63 of Succession Act and S. 68 of Evidence Act. [Para 13
(2) Succession Act, 1925 -- S. 63(C) -- manner of proving Will -- attesting witnesses stated that they put their signature of Will -- testator put her thumb impression on Will -- but no evidence that who had prepared Will -- whether Will was read over to testator -- plaintiff failed to prove that testator was in fit state of mind at time of execution -- testator expired within one month from execution of Will -- Courts below rightly held that plaintiff failed to prove Will. (2010)5 SCC 274, 1959 Supp. (1) SCR 426 and (2006) 13 SCC 433 followed. [Paras 14 to 18
(3) Civil P.C., 1908 -- S. 100 -- scope -- concurrent findings of facts of both Courts below that Will not proved -- based on appreciation of evidence -- no perversity pointed out in findings of facts -- no interference called for. (2016)3 SCC 78, (2001)9 SCC 521, (2007)1 SCC 546 and (2010)13 SCC 216 followed. [Paras 19 to 22
JUDGMENT
1. Heard on the question of admission.
2. This Second Appeal under section 100 CPC has been filed against the judgment and decree dated 16.3.2011 passed by District Judge, Sheopur in R.C.A. No. 16-A/2010 arising out of judgment and decree dated 21.12.2009 passed by 3rd Civil Judge, Class II, Sheopur in Civil Suit No. 89-A/2008.
3. The necessary facts for disposal of the present appeal in short are that the plaintiffs/appellants filed a civil suit for declaration of title and permanent injunction. The share of Ramkanwaribai in Survey No. 86 area 14 Bigha 6 Biswa, and Survey No. 126 area 12 Bigha and 10 Biswa situated in village Kanapur Tahsil and Distt. Sheopur is the disputed property. It is the case of the plaintiffs/appellants that Survey Nos. 86 and 126 were jointly owned by Ramkanwari (mother of Plaintiff No. 2 Ramprasad), Plaintiff No. 3 Bajranga (Died during the pendency of the Civil Suit) and Plaintiff No. 4 Kasturibai. Ramkanwari bai expired on 30.1.2004. She had executed a "Will" dated 1.1.2004 in favor of plaintiff No.1 Hanuman and bequeathed her share. After the death of Ramkanwaribai, it is pleaded that Ramvilas (father of Plaintiff No.1 Hanuman), Kasturibai and Bajranga are in cultivating possession of equal share in the property. It was pleaded that on 1.3.2004, the plaintiff No.1 filed an application for mutation of his name, which is still pending. It was further pleaded that the plaintiffs have come to know that the name of Ramlakhan/Defendant No.1 has been wrongly mutated in the revenue records, which is null and void. It was further pleaded that the defendant No.1, Ramlakhan is trying to illegally take possession of the land in dispute and thus, the suit was filed for declaration of title and permanent injunction.
4. The defendants filed their written statement and pleaded that in place of Ramkanwaribai, the name of the defendant No.1 has been recorded in the revenue records. It was further pleaded that no "Will" was ever executed by Ramkanwaribai in favor of plaintiff No.1. It was further pleaded that defendants are in possession of the disputed property.
5. The trial Court framed issues and after recording the evidence of the parties, dismissed the suit by holding that the plaintiffs have failed to prove the execution of "Will".
6. Being aggrieved by the Judgment and Decree passed by the trial Court, the appellants filed an appeal, which too has been dismissed by the impugned Judgment and Decree.
7. The appellants have filed the present appeal on the following proposed Substantial Questions of Law :
iii) Whether in facts and circumstances of the case, the Gram Panchayat was competent to mutate the name of the plaintiff/appellant No.1-Hanuman in place of Ramkuanri Bai?
ii) Whether refusal of the Naib Tahsildar to accept the will executed in favour of Ramlakhan goes adverse to the respondents/defendants?
iii) Whether the appellate Court was justified to mechanically confirmed the judgment of the trial Court without marshalling the evidence?
8. It is submitted by the Counsel for the appellants, that they have proved the execution of "Will" beyond reasonable doubt, and the Courts below have wrongly disbelieved the "Will" executed by Ramkunwaribai.
9. Heard the learned Counsel for the appellants.
10. Section 63 of Succession Act, 1925 reads as under :
63. Execution of unprivileged Wills.- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 1[or an airman so employed or engaged,] or a mariner at sea, shall execute his will according to the following rules:-
(a) The testator shall sign or shall affix his marks to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more w
