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RAJASTHAN HIGH COURT
Ramesh Chandra, J.
Shri Ramesh Chandra —Appellant
versus
Smt. Kamla Devi —Respondent
SB Civil Regular First Appeal No. 2 of 1991
Decided on 17.7.2012
For the Appellant:Amod Kasliwal, Advocate.
For the Respondent:R.K. Agrawal, Sr. Advocate with Alok Chaturvedi, Advocates.
IMPORTANT POINT
If there is nothing unnatural about the transaction and the evidence adduced satisfies the requirement of proving a will, the court would not return a finding of ‘not proved’ merely on account of certain assumed suspicion or supposition.
Headnote:Hindu Succession Act—Section 63 read with Section 68 of the Evidence Act—SUIT FOR possession of suit property—Trial Court decreed the suit of plaintiff –Appeal thereagainst—Plea that testator used to put his signature with his surname only and the signatures on the Will without surname created suspicion as to the genuineness of the said signatures on the Will—Held Sometimes person may put signature with his surname and sometimes without his surname—From the mere comparison of the said signatures appearing on the each page of the will and the signatures on the said document of Pension Payment Order, the court did not find any discrepancy—That apart, from the pleadings and the evidence of the appellant adduced before trial court it appears that neither the execution of the Will nor the signatures of the testator appearing on the Will was seriously challenged by the appellant—Under the circumstances, trial court had rightly held that the respondent—plaintiff had proved by legal and clinching evidence as per the requirement of Section 63 of the Succession Act read with Section 68 of the Evidence Act that the Will Ex.1 was executed by Testator whereas the appellant/defendant had failed to prove that he was adopted son of testator—No illegality or perversity found in the impugned judgment and decree passed by trial court—Appeal dismissed. (Paras 14 to 18)
Result: Appeal dismissed.
Bela M. Tirvedi, J.— The challenge in the instant appeal is to the judgment and decree dated 6.12.1990 passed by the learned Addl. District & Sessions Judge No.2, Jaipur City,’ Jaipur (hereinafter referred to as ‘the trial court’) in Civil Suit No.36/77, whereby the trial court has decreed the suit of the respondent/plaintiff seeking possession of the suit property from the appellant/defendant.
2. The case of the respondent/plaintiff before the trial court was inter alia that late Shri Durga Prasad had two sons, named Shri Devkinandan and Shri Ghasi Lal and one daughter named Narayani Devi. The plaintiff was the daughter of the said Narayani Devi. The said Devkinandan and Ghasi Lal died issueless in the year 1974 and 1934 respectively. One Shri Gaindi Lal and Shri Motilal were the owners of the suit, being three storied house, bearing Municipal No.1368 situated at Gangapole, Jaipur Chowkri (hereinafter referred to as ‘the suit property’). The said owners gifted the said property to the said Shri Devkinandan and Ghasi Lal by executing a registered gift deed dated 18.11.1932. It was further case of the plaintiff that her parents died at a very young age and she was brought up by her maternal uncle Devkinandan. The said Devkinandan therefore, had executed a Will dated 9.11.1974 bequeathing the said property to the plaintiff and he died on 6.12.1974. According to the plaintiff since the said Devkinandan did not have any son, his obsequies ceremonies were performed by the defendant, being a distant male relative, and the defendant therefore stayed in the suit property for some days after the death of Shri Devkinandan. The plaintiff subsequently came to know that the defendant was trying to take possession of the moveable properties and he also tried to open the locker of Devkinandan and that he was also trying to occupy the suit property illegally. According to the plaintiff, she being the sole survivor and being the beneficiary of the Will executed by the said Devkinandan in her favour, was the owner of the suit property. When the defendant refused to vacate the suit property and handover the possession of the same to the plaintiff, the suit for possession was filed by the plaintiff.
3. The appellant-defendant resisted the suit by filing his written contending inter alia that he was taken in adoption by the said Devkinandan on 2.5.1955 after performing rites and rituals as per the Hindu Law, and hence he had become the owner of the suit property after the death of Devkinandan. It was further contended that he had performed all the obsequies as a son would perform after the death of the father and, therefore, was a lawful occupant of the suit property. According to the defendant, the said Devkinandan had not executed any Will as alleged by the plaintiff and even otherwise he was not keeping a good health in his last days. The alleged Will being not free from suspicion, and having been concocted by the plaintiff, the same could not be relied upon. In short, the defendant had urged to dismiss the suit. .
4. The trial court after framing as many as 5 issues and appreciating the evidence on record decreed the suit of the plaintiff vide the impugned judgment and decree as mentioned hereinabove.
5. It has been sought to be submitted by the learned counsel Mr. Amod Kasliwal for the appellant that the trial court had failed to appreciate the evidence on record and decreed the suit in utter disregard of the settled legal position as regards the proof of Will. He submitted that as per the settled principles of law, the burden of proving the attestation and execution of the Will heavily lied on the propounder of the Will i.e. the plaintiff, which she had failed to discharge. According to him the circumstances under which the will was allegedly executed by the said Devkinandan, had created doubt about the genuineness of the execution of the will. He further submitted that the signatures of the testator on the Will were also not genui
