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2009 Supreme(MP) 220
A.K. Shrivastava, J.
Ramautar v. Ram Naresh and others
Second Appeal No. 126 of 1987 (Jabalpur) : against the judgment and
decree of lower appellate Court; Decided on 17.2.2009.
Rakesh Jain for appellant;
L.S. Baghel with G.S. Baghel for respondent No.1-plaintiff.
Headnote:Succession Act, 1925 -- S.63(c) -- Evidence Act, 1872 -- S.68 -Transfer of Property Act, 1882 -- S.3 -- Will -- not proved according to S.63(c) of 1925 Act -- Will not proved.
In his testimony nowhere he has stated that testator put her thumb impression in presence of the attesting witness or acknowledged her thumb impression in presence of attesting witnesses. From his testimony only this much is gathered that testator put her thumb impression on the document of Will, but in specific words this witness is not saying that in his presence or in presence of other attesting witnesses, testator put her thumb impression or acknowledged her thumb impression. Even for the sake of argument, from the evidence of this witness, if inference is drawn that testator put her thumb impression in presence of the attesting witness Indrajeet (PW3), in absence of evidence of this witness that he also put his thumb impression in presence of the testator, according to me, the execution and attestation of the Will is not at all proved. AIR 1995 SCW 4631, AIR 1955 SC 346, (2006)13 SCC 433, AIR 2007 SC 311 and 2003(1) MPWN 130 (SC) followed. 1997(2) Vidhi Bhasvar 199 relied on. [Para 13
mRrjkf/kdkj vf/kfu;e] 1925 && /kkjk 63¼10½ && lk{; vf/kfu;e] 1872 && /kkjk 68 && laifRr varj.k vf/kfu;e] 1882 && /kkjk 3 && foy && 1925 ds vf/kfu;e dh /kkjk 63¼10½ ds vuqlkj lkfcr ugha && foy lkfcr ughaA
vius ifjlk{; esa mlus dgha ugha dgk gS fd olh;r us vaxwBs dk fu‘kku vuqizek.kd lk{kh dh mifLFkfr esa yxk;k ;k vuqizek.kd lkf{k;ksa dh mifLFkfr esa vius vaxwBs dk fu‘kku vfHkLohdkj fd;kA mlds ifjlk{; ls dsoy ;g izdV gksrk gS fd olh;rdrkZ us foy ds nLrkost ij vius v¡xwBs dk fu‘kku yxk;k] ijarq fofufnZ"V ‘‘kCnksa esa ;g lk{kh ugha dg jgk gS fd mldh mifLFkfr esa ;k vU; vuqizek.kd lkf{k;ksa dh mifLFkfr esa olh;rdrkZ us vius vaxwBs dk fu‘kku yxk;k ;k vius vaxwBs dk fu‘kku vfHkLohdkj fd;kA cgl ds fufeRr Hkh] bl lk{kh ds lk{; ls] ;fn ;g vuqeku yxk;k tk, fd olh;rdrkZ us vius vaxwBs dk fu‘kku vuqizek.kd lk{kh banjthr ¼v lk 3½ dh mifLFkfr esa yxk;k] bl lk{kh dks bl lk{; dh vuqifLFkfr esa fd mlus Hkh vius vaxwBs dk fu‘kku olh;rdrkZ dh mifLFkfr esa yxk;k] esjs vuqlkj] foy dk fu"iknu rFkk vuqizek.ku fcYdqy lkfcr ugha gqvkA , vkb vkj 1995 ,l lh MCY;w 4631] , vkb vkj 1955 ,l lh 346] ¼2006½ 13 ,l lh lh 433] , vkb vkj 2007 ,l lh 311] 2003¼1½ ohDyh uksV~l 130b ¼,l lh½ vuqlfjrA 1997¼2½ fof/k HkkLoj 199 voyafcrA ¼iSjk 13
1. This second appeal of defendant was heard and allowed by this Court on 5.7.2007 by dismissing the suit of plaintiff. Against the judgment of this Court, plaintiff (who is respondent No.1 in this second appeal) filed Civil Appeal No.4768 of 2008 before the Supreme Court. The Supreme Court set aside the judgment of this Court dated 5.7.2007 holding that the substantial question of law which was formulated by this Court on 14.7.1987 is not a substantial question of law within the meaning of the provisions of sub-section (4) of section 100 CPC. The substantial question of law which was formulated at that time reads thus:
"Whether the lower appellate Court was justified in law in reversing the judgment and decree of the trial Court?"
The Supreme Court while deciding the above said appeal and remanding the case to this Court further observed that the High Court may formulate such substantial question of law as in its opinion arises in the matter. This Court after having heard learned counsel for the parties formulated the following substantial question of law on 16.2.2009 :
"Whether in absence of the proof of due attestation of the Will EX.P-l in terms of section 63( c) of Indian Succession Act, the learned first appellate Court erred in substantial error of law in decreeing the suit of plaintiff-respondent No.1 ?"
Learned counsel for the parties are heard on the said substantial question of law.
2. The plaintiff-respondent No.1 Ramnaresh has filed the instant suit for declaration and possession in regard to certain agricultural land, the details of which are mentioned in the plaint and which is the subject-matter of the suit on the basis of the Will dated 31.10.1972 said to have been executed by Katrawali (hereinafter referred to as "testator") in his favour. It is not in dispute that the testator was Chachi (aunt) of the plaintiff's grand father, namely, Paramlal. The family tree has been shown in para 2 of the plaint and in the written statement relationship has not been denied. Thus, it is an admitted fact that testator was Chachi (aunt) of plaintiff's grand father.
3. According to the plaintiff, on account of love and affection looking and to the service rendered by plaintiff to the testator, she bequeathed the suit property to him by executing a Will on 31.10.1972. The testator after executing the Will, died after few days. Thus, on the basis of the said Will plaintiff is seeking declaration of his Bhumiswami right with a further relief to deliver possession of the suit property because the suit property was owned by the testator and the same was bequeathed to the plaintiff.
4. The defendants No.1 to 4 (including appellant-defendant Ramautar) filed their joint written statement and challenged the Will. According to the defendants, the Will is a forged document.
5. Learned trial Court framed necessary issues and after recording the evidence of the parties, came to hold in para 22 of its judgment that the Will (Ex.P-l) is a forged document and hence dismissed the suit.
6. An appeal which was preferred by plaintiff before learned first appellate Court against the judgment and decree passed by learned trial Court has been allowed and the suit of plaintiff has been decreed.
7. In this manner, this second appeal has been filed by defendant No.4.
8. After remand from the Supreme Court, this Court on 16.2.2009 formulated following substantial question of law:
"Whether in absence of the proof of due attestation of the Will Ex.P-l in terms of section 63(c) of Indian Succession Act, the learned first appellate Court erred in substantial error of law in decreeing the suit of plaintiff-respondent No.1 ?"
9. The contention of Shri Rakesh Jain, learned counsel for the appellant is that claim of plaintiff is based on the Will (Ex.P-l), but the attestation of the Will has not at all been proved and, therefore, learned first appellate Court erred in substantial error of law in decreeing the suit of plaintiff holding the Will to be p
