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RAJASTHAN HIGH COURT
Arun Bhansali, J.
Shanti Lal —Appellant
versus
Shantilal —Respondent
S.B. Civil First Appeal No.212 of 2002
Decided on 27.4.2021
Code of Civil Procedure, 1908 – Suit filed by the plaintiff for possession of the suit property and mesne profit on grounds that his maternal uncle executed a Will in his favour - Trial court decreed the suit and directed handing over of vacant possession of the house to the plaintiff alongwith mesne profit – Hence, the appeal by defendant now an appellant. (Paras 2 & 19)
Code of Civil Procedure, 1908 – Section 96 – Succession Act, 1925 – Section 2(h) – Transfer of Property Act – Section 122 – Will need not be necessarily registered. Mere registration of “will” will not render the document a settlement – Apparent that the document is only a Will and the same cannot be termed as a gift – Determination made by the trial court with regard to nature of the document and its admissibility cannot be faulted – Appellant has failed to make out a case for production of additional evidence – Evidence Act – Section 67 & 68 – It is well settled that the onus to prove a Will is on the propounder – Submissions made regarding the suit being barred by limitation also have no substance – No assertion as to from which point of time the possession become adverse and/or the limitation to claim possession started to run – Plea of adverse possession can only be raised against the true owner. (Paras 16, 52, 53, 61, 62, 77, 79, 88, 89 & 90)
Result: Appeal has no substance and is dismissed.
JUDGMENT
Arun Bhansali, J.—This appeal under Section 96 CPC is directed against judgment and decree dated 07.08.2002 passed by District Judge Pali, whereby, the suit filed by the respondent - plaintiff has been decreed for possession and mesne profit.
2. The suit was filed by the plaintiff on 11.08.1992 for possession of the suit property and mesne profit on the ground that one Hastimal, who was plaintiff’s maternal uncle, executed a will dated 08.11.1976 in his favour, the said Hastimal died on 19.12.1976 and as such all the rights which Hastimal had came to be vested in him qua the immoveable property and since then plaintiff is the owner and in possession of the immovable property.
3. It was further indicated in the plaint that Late Hastimal had a sister named Sukniya Bai, who was residing with him being a widow at a young age and as it was the Will of the testator that she can reside in the suit property till her death and as such, she remained in the house after the death of Hastimal and that Smt. Sukniya Bai died on 12.05.1992.
4. It is claimed that as plaintiff was the only son of his father, for helping him in his cloth business he used to reside with his father and would regularly visit the suit property and that in a room situated on left side at the entrance of the house, plaintiff’s goods were lying under his lock and key.
5. Further averments were made in the plaint that about 15-16 months back Smt. Sukniya Bai sought permission of the plaintiff to keep the defendant in the house to help her as she was quite old, which was permitted by the plaintiff; after the death of Smt. Sukniya Bai, the plaintiff sought the defendant to vacate the premises, who promised to hand over the possession of the house but did not vacate and as such the plaintiff revoked the license of the defendant and gave notice dated 07.07.1992, which was refused by the defendant.
6. Based on the said averments the plaintiff sought relief of possession of the disputed house and claimed mesne profit @ Rs.500/- per month.
7. The appellant - Defendant contested the suit by filing a written statement on 18.02.1994. It was claimed that deceased Hastimal used to treat defendant as his son and he used to live in the house with Hastimal and after death of Hastimal, he has been residing in the house.
8. It was further claimed that even Smt. Sukniya Bai used to treat him as adopted son of Hastimal and as Sukniya Bai was living in the house as the heir of deceased Hastimal, no Will was executed by Hastimal in favour of the plaintiff on 08.11.1976.
9. It was claimed that perusal of the document reveals that the same is not a Will, it was not signed by deceased but was a forged document and as such plaintiff has no right in the suit property, the possession of the plaintiff was denied. The allegations about Sukniya Bai keeping the defendant in the house with the permission of the plaintiff were denied.
10. It was claimed that possession of the defendant on the house was as an owner. In the additional pleas it was stated that Smt. Sukniya Bai remained in possession of the property after death of Hastimal as an owner and she expressed herself to be owner of the property to the knowledge of the plaintiff. Smt. Sukniya Bai executed a Will dated 27.05.1987 in favour of the defendant and got it registered on 01.06.1987.
11. It was also claimed that after the death of Hastimal on 19.12.1976 Smt. Sukniya Bai’s possession was adverse to everyone and particularly the plaintiff to his knowledge. The document dated 08.11.1976 was a gift-deed and was inadmissible in evidence for want of proper stamp duty and registration.
12. It was prayed that the suit be dismissed. The plaintiff filed replication and reasserted the facts stated in the plaint and denied the allegations made by the defendant.
13. Based on the pleadings of the parties, the trial court framed following six issues:—
(Matter in other language)
14. On behalf of the plaintiff three witnesses were examined and three
(1) Appellant has failed to make out a case for production of additional evidence.(2) It is well settled that the onus to prove a Will is on the propounder.(3) No assertion as to from which point of ....
The court established that the validity of a Will requires proof of the testator's intentions and mental capacity, dismissing allegations of undue influence as unfounded.
The validity of a will is undermined when it is executed under suspicious circumstances, necessitating the propounder to dispel these doubts for the document to be accepted legally.
The central legal point established in the judgment is the requirement to prove the execution of a Will, including the testator's sound state of mind, free will, and the absence of suspicious circums....
The appellant failed to establish valid ownership through the Will and related agreements, leading to the dismissal of the appeal.
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