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RAJASTHAN HIGH COURT
Sudesh Bansal, J.
Kamla Devi – Appellant
versus
Manoharlal (deceased) through Legal Representatives and Anr. – Respondents
S.B. Civil First Appeal No. 115/1989
Decided on 18.8.2022
(A) Civil Procedure Code, 1908 – Order VI Rule 1 – Pleadings – Civil suit has to be tried on the basis of pleadings of contesting parties which have been placed on record in form of plaint and written statement submitted before trial court – Case of plaintiff and contesting case of defendant be examined as per issues emerges out of pleadings and respective claims of parties. (Para 15)
(B) Indian Succession Act, 1925 – Section 192 – Relief against wrongful possession – Enquiry under Section 192 of Indian Succession Act, 1925 is summary in nature and does not determine rights of parties finally, in relation to properties of deceased – In inquiry under Section 192 of the Indian Succession Act, 1925, defendant No.1 has succeeded prima facie in proving execution of ‘Will’ in question before authority of law – Trial court has committed error of fact and law in deciding against defendant No.1, in relation to ‘Will’ in question and such finding are liable to be set aside and reversed. (Paras 20, 22 and 36.22)
(C) Indian Succession Act, 1925 – Section 63 – Indian Evidence Act, 1872 – Section 68 – Proof of Will – Onus of proving ‘Will’ is always on Propounder – Propounder must prove execution of ‘Will’ by testator and at least one attesting witness is required to be examined for the purpose of proving execution of ‘Will’ – It is required to be shown that ‘Will’ has been signed by testator with his free will and that at relevant time testator was in sound disposal state of mind and understood nature and effect of his/her disposition – It is also required to be established that he has signed ‘Will’ in presence of two witnesses who attested his signatures in his presence or in presence of each other – If there exists some suspicious circumstances, onus would be on Propounder to explain them to satisfaction of Court – Conscience of Court has to be satisfied by Propounder of ‘Will’. (Para 34)
(D) Indian Evidence Act, 1872 – Section 45 – Expert opinion – Evidence of handwriting expert is only an opinion and such opinion cannot over weigh direct evidence – Evidence of expert cannot outweigh direct evidence – Evidential value of handwriting expert opinion is not a substantive one but corroborative one. (Para 36.4)
(E) Civil Procedure Code, 1908 – Section 9 – Civil case – Burden of proof in civil cases is that of “balance of probability” and not that of “beyond reasonable doubt” – Minor consistencies in evidence are not relevant in civil cases, in considering question of discharge of burden – When statements of witnesses are recorded after expiry of a long period of time from date of execution of document, some contradictions and discrepancies in their statements are natural, which can be brushed aside unless they do not impeach fundamental and basic evidence. (Paras 36.1 and 36.18)
Result: Appeal allowed.
JUDGMENT
Appellant-Defendant No.1-Smt. Kamla Devi filed this first appeal under Section 96 of Civil Procedure Code feeling aggrieved by the judgment and decree dated 08.09.1989 passed in Civil Suit No.36/1984 by the Court of Additional District Judge No.1, Jaipur City, Jaipur whereby and whereunder civil suit for declaration, possession and permanent injunction filed by the respondent No.1-plaintiff in relation to the movable and immovable properties of late Smt. Sahodara Devi has been decreed in his favour and against the appellant-defendant No.1 in following manner:—
2. Heard learned counsel for both parties at length and perused the impugned judgment as also scanned the material on record.
3. The principal point emerges for consideration in the present case is that who would succeed the suit properties left by Smt. Sahodara Devi? From the record, it is indisputed that Smt. Sahodar Devi died issue-less on 04.03.1977 and her husband, father and mother pre-deceased her. Appellant-Defendant No.1-Smt. Kamla Devi who happens to be daughter of her sister, has succeeded in legal proceedings initiated by her under Section 192 of the Indian Succession Act, 1925 on the basis of ‘Will’ of Smt. Sahodara Devi dated 09.10.1976. Learned District Judge, Jaipur City, in such summary proceedings under Section 192, after recording evidence of parties and after according opportunity of hearing to the respondent No.1-Plaintiff, passed order dated 03.05.1980 and has accepted the ‘Will’ of Smt. Sahodar Devi as genuine and valid, and further inquriy has been concluded in favour of appellant and directions have been issued to deliver the possession of her properties to applicant Smt. Kamla Devi (appellant herein) until order is impeached by the competent court of law in regular suit in accordance with law. But thereafter respondent No.1-Plaintiff instituted the present civil suit on 23.07.1980, challenging the ‘Will’ of Smt. Sahodar Devi as forged and fabricated as also alleging the order dated 03.05.1980 and prayed to quash the ‘Will’ and the order dated 03.05.1980. Respondent No.1 is claiming his right, title and interest in the suit property of Smt. Sahodara Devi and has prayed for possession of suit property, claiming himself to be natural successor of late Smt. Sahodara Devi. Respondent No.1-Plaintiff happened to be son of sister of husband of late Smt. Sahodara Devi. The respondent -defendant No.2 Smt. Pushpa Devi happens to be tenant of Smt. Sahodara Devi in a portion of suit property and agreeable to pay rent to the person, declared to be owner and successor of the suit property of Smt. Sahodara Devi as per direction of the Hon’ble Court. Thus, appellant is alleging herself to be successor on the basis of testamentary document of ‘Will’ of Smt. Sahodara Devi. Per contra, respondent No.1 is claiming his right, title and interest in the suit property of Smt. Sahodara Devi by non-testamentary succession and has challenged the ‘Will’ of Sahodara Devi executed in favour of appellant and has prayed for possession of the suit property.
4. At the outset and before considering facts and evidence of both parties in detail and to discuss issues involved in the present matter, it may be clarified that the dispute between parties is in relation to the suit property of Smt. Sahodara devi, movable and immovable, as described in para No.3 of the plaint situated at Haveli Municipal No.1177 in Sakari Gali of Nataniyon Ka Rasta, Chokri Modikhana, Jaipur for which Smt. Sahodara Devi made her ‘Will’ on 09.10.1976 in favour of appellant Smt. Kamla Devi but there is no dispute about the adjoining portion to the suit property, which is also part of the same haveli and was belonging to Smt. Sahodara Devi and for which Smt. Sahodara Devi had already executed a gift deed dated 03.10.1975 in favour of appellant-Kamla Devi. It is not disputed between parties that appellant-defendant Kamla Devi is seized and in possession of that northern side of portion of the haveli, wh
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