Maganbhai Somabai Baria vs Shankarbhai Naginbhai Baria

Gujarat High Court

Maganbhai Somabai Baria vs Shankarbhai Naginbhai Baria on 5 February, 2025

                                                                                                                NEUTRAL CITATION




                             C/SA/278/2024                                      ORDER DATED: 05/02/2025

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                                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                             R/SECOND APPEAL NO. 278 of 2024

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                                                 MAGANBHAI SOMABAI BARIA
                                                         Versus
                                               SHANKARBHAI NAGINBHAI BARIA
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                      Appearance:
                      MR RAINISH S SIKLIGAR(11442) for the Appellant(s) No. 1
                      ==========================================================

                        CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER

                                                          Date : 05/02/2025

                                                            ORAL ORDER

1. Being aggrieved by the judgment and decree dated 21.10.2023 passed by the Additional District Judge, Narmada at Rajpipla in Regular Civil Appeal No.7 of 2013 the present Second Appeal has been filed.

2. For the brevity and convenience, the parties are referred to as plaintiff and defendant.

3. The brief facts arising out of the present appeal are as under.

4. The plaintiff filed Regular Civil Suit no.86 of 2001 which was renumbered as Regular Civil Suit no.402 of 2006 before the Principle Senior Civil Judge, Narmada and by Page 1 of 16 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:40:45 IST 2025 NEUTRAL CITATION C/SA/278/2024 ORDER DATED: 05/02/2025 undefined an order dated 30.03.2013, the civil Suit filed by the plaintiff has been dismissed. In the said suit, one Kamlaben Jethabhai Bariya was also joined as defendant no.2 but as she expired and as she did not have any children her name was deleted.

5. In the said suit, the contention that was raised by the plaintiff was that the uncle of the plaintiff-Jethabhai Govindbhai did not have any children and the plaintiff was taking care of his uncle late Jethabhai Govindbhai till he expired and during the lifetime of late Jethabhai Govindbhai on 25.02.1985 in presence of witness a will has been executed by late Jethabhai Govindbhai with respect to the property situated at Survey no 251.

6. It has been also stated that late Jethabhai Govindbhai expired on 25.03.1985 and the property situated at Survey no.251 was a self acquired property of late Jethabhai Govindbhai and as per will of late Jethabhai Govindbhai the said property has been bequeath to the plaintiff. It has also been alleged that on 14.07.2001 the defendants threatened the plaintiff that the defendant shall take possession of the property and shall restrain the plaintiffs from entering the property.

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7. In the suit that has been filed by the plaintiff, the plaintiff is claiming right in the suit property by way of Will executed by late Jethabhai Govindbhai on 25.02.1985, in the said suit the defendant had filed his appearance and had filed a written statement and has denied the fact that any will has been executed by late Jethabhai Govindbhai and the Trial Court had framed issues vide Exhibit-28 and following issues were framed:

"1. Whether the plaintiff proves that he is owner of suit land by virtue of Will dated 25/02/1985 executed by Jethabhai Govindbhai?

2. Whether the plaintiff proves that he is in actual possession of the suit property?

3. Whether the defendants proves that the alleged Will dated 25/02/1985 is false and concocted?

4. Whether the plaintiff proves that the suit land is ancestral property and not self acquired property of Jethabhai Govindbhai?

5. Whether the plaintiff is entitled to get possession of the Suit land alongwith means profit of the suit land as prayed for?

6. What order and decree?"

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8. After considering oral evidence and after going through the documentary evidence, the Trial Court by order dated 30.03.2013 dismissed the suit and thereafter Regular Civil Appeal No.7 of 2013 was filed and on 19.09.2014 the said appeal was allowed and the judgment and decree passed on 30.03.2013 was quashed and set aside. Thereafter, the defendant filed Second Appeal no.228 of 2014 in which by an order dated 14.10.2022, the order passed by the Additional District Judge on 19.09.2014 was quashed and set aside and the matter was remanded back to the First Appellate Court to decide afresh in accordance with law and on merits formulating the point of determination and after re-appreciating the evidence the First Appellate Court by an order dated 21.10.2023 dismissed the Regular Civil Appeal no.7 of 2013 and confirmed the judgment and decree passed by Principal Senior Civil Judge, Narmada at Rajpipla dated 30.03.2013, hence the present Second Appeal.

9. Learned advocate for the plaintiff Mr.Rainish S.Sikligar has mainly argued that the will that has been executed by Jethabhai is dated 25.02.1985 and the plaintiff has also proved that both the attesting witnesses of the will had Page 4 of 16 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:40:45 IST 2025 NEUTRAL CITATION C/SA/278/2024 ORDER DATED: 05/02/2025 undefined expired and the death certificate to that effect is also produced vide Exhibit 96 and 97 and therefore as there were no attesting witnesses present the said will according to the plaintiff is proved by way of leading oral evidence of the scribe of the Will who was examined vide Exhibit 134 and in view of the Section 69 of the Indian Evidence Act, 1872, it is the case of the plaintiff that the said Will has been proved.

10. It has been argued by the learned advocate for the plaintiff that the Will executed by late Jethabhai Govindbhai had been proved to be duly executed by the deceased and the Trial Court and the First Appellate Court have not taken into consideration the provisions of Section 69 of the Evidence Act, 1872 that as per the said provision, the plaintiff has proved execution of the Will and therefore has stated that there are substantial questions of law which have been formulated in the memo of the appeal and therefore the present appeal is required to be admitted.

11. Learned advocate for the plaintiff has relied on the judgment in case of Mohd. Yusuf V/s. Board of Revenue U.P. at Allahabad reported in 2005 (1) Indian Law Reports, Allahabad Series 141.

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12. Learned advocate for the plaintiff also relied upon the Judgment of High Court of Punjab and Haryana at Chandigard, in case of Pooja Rani versus Devender Singh and others vide order dated 30.11.2018 reported in RSA-1732-2017.

13. Having heard learned advocate for the plaintiff, the fact remains that at the time when the suit was filed, the attesting witnesses had died and the death certificate were produced vide Exhibits 96 and 97. The fact also remains that the scribe of the said Will was examined vide Exhibit 134, who has stated that since 1993 he is working as a stamp vendor and that there were police complaints filed against him with respect to the dispute arising out of a Will which is not connected with the present matter. On perusal of the judgment and decree of the Trial Court as well as the First Appellate Court the following are admitted facts:

-Late Jethabhai died on 25.03.1985.

-Vide Exhibit 94, the plaintiff has admitted that after the death of late Jethabhai, the name of his wife Kamlaben was mutated.

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-It is also admitted that the suit property is in possession of the defendant.

-It is also admitted vide Exhibit 94 that after the death of Jethabhai Govindbhai the absolute administration was carried out by his wife Kamlaben and she is making necessary arrangement of the suit property.

-It is also admitted that during the lifetime of late Kamlaben, she has parted the suit property to the the present defendant.

-It is also admitted that after death of late Jethabhai his wife Kamlaben was taking crop from the suit property.

14. The fact remains that after the death of a attesting witnesses, the plaintiff will have to prove the Will as per provision of Section 69 of the Indian Evidence Act, 1872 which reads as under:

"69. Proof where no attesting witness found.--If Page 7 of 16 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:40:45 IST 2025 NEUTRAL CITATION C/SA/278/2024 ORDER DATED: 05/02/2025 undefined no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the hand writing of that person."

15. Now, in this background, it is the plaintiff's case that the witness Bhaskar Bipinchandra Shah, who has been examined vide Exhibit 134 is the person who has written the said Will but if the oral evidence of said Bhaskar Bipinchandra Shah is properly examined, the said witness said that he is working as a stamp vendor. He further admitted that he had not supplied any stamp or has not given any stamp for writing dated 25.02.1985. It is also admitted that at that point of time, he was not a stamp vendor. One of the important factors to be considered is that the said witness himself has stated that he has not verified any identification proof of the person, who has come for preparing writing and therefore there is no proof that late Jethabhai Govindbhai had gone to prepare the Will nor are there any proof to state that the attesting witnesss i.e. Dhirajlal Lalubhai and Govindbhai Page 8 of 16 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:40:45 IST 2025 NEUTRAL CITATION C/SA/278/2024 ORDER DATED: 05/02/2025 undefined Madhabhai, had gone as witnesses of the said Will. The glaring fact that will also have to be looked into is, that though no stamp paper is required for executing a Will but in the present case a stamp paper which stated to have been of 22.12.1978 has been used for preparing documents exhibit-95 which is stated to be a Will of late Jethabhai. The factual aspect is also dealt with by the Appellate Court and the Trial Court that signature of the stamp vendor with regard to the stamp paper is in blue ink while the name and purchaser of the stamp late Jethabhai and his signature as well as writing of the Will is made in black ink. Moreover, the attesting witnesses signature is in blue ink, so therefore, all the said fact including the fact that the stamp used for writing the Will was a seven year old stamp paper, on the factual aspect, the same creates doubt and suspicion regarding the existence of the so called Will. On the factual aspect also, in the said document exhibit-95, there is neither an initial made by the witness examined at Exhibit-134 that there are no initial put by the said witness acknowledging his handwriting and there is no proof given by the said witness that the said Will is in his handwriting. The Trial Court and the Appellate Court has also come to the conclusion that the plaintiff is not in possession of the property and the said facts are also on the factual aspect of Page 9 of 16 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:40:45 IST 2025 NEUTRAL CITATION C/SA/278/2024 ORDER DATED: 05/02/2025 undefined the matter. The fact remains that as per Section 67 of the Evidence Act, which reads as under:

"67. Proof of signature and handwriting of person alleged to have signed or written document produced. -- If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting."

16. In the present case, both the attesting witnesses are dead, the witness Exhibit 134 does not state that he is well acquainted with the signature of the testator and or the attesting witnesses. On the contrary, the witness Exhibit 134 has stated that he has not taken any proof of identification of the testator and or the attesting witnesses. It is also not the case that the witness Exhibit 134 knew that the testator, and therefore the fact stated by witness examined vide exhibit-134 cannot be believed and the plaintiff cannot be said to have proved the execution of the Will, as the said document Exhibit 95 is stated to have been signed by late Jethabhai and attesting witnesses and Page 10 of 16 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:40:45 IST 2025 NEUTRAL CITATION C/SA/278/2024 ORDER DATED: 05/02/2025 undefined that the signatures of the deceased and the attesting witnesses have not been proved by the plaintiff therefore unless the signatures of the testator and the attesting witnesses are proved, the execution of the said Will cannot be said to have been proved by the plaintiff.

17. In the present case, the witness Exhibit-134 has stated that the said Will has been written in his handwriting, but the fact remains that under the provisions of Section 67 of the Evidence Act, 1872 where the document is written by one person and signed by the other, the handwriting and signature have both to be proved in view of Section 67 of the Evidence Act, 1872 and in the present case, the plaintiff has not proved the signature of the testator late Jethabhai Govindbhai and or the attesting witness and has only produced evidence of stamp vendor Exhibit 134 who states that he did not take the identification proof. Nor it is the case that he knew the testator and the attesting witnesses since very long time.

18. In case of Mohd. Yusuf V/s. Board of Revenue U.P. at Allahabad reported in 2005 (1) Indian Law Reports, Allahabad Series 141, the facts of the said case and the present case are different. In the said case, the Page 11 of 16 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:40:45 IST 2025 NEUTRAL CITATION C/SA/278/2024 ORDER DATED: 05/02/2025 undefined Court held that the scribe can be said to be attesting witnesses and it has to be proved that the said scribe should have put the signature for the purpose of attesting and he has seen, executed and signed and received from him a personal acknowledgment at the time of registration and in the present case, the witness Exhibit-134 has neither signed the said document Exhibit-95 nor has he taken any identification from the said witness.

19. In case of Pooja Rani versus Devender Singh and others vide order dated 30.11.2018 reported in RSA- 1732-2017. The facts of the said case and the present case are also different. In the said case, the Court, the witness identified the signature on the Will and in the present case there is no proof of any of the witness that he knew that the signature of the testator and or witnesses and therefore also the said judgment will not apply to the facts of the present case.

20. In view of the said fact, there are no substantial questions of law involved in the present Second Appeal. Moreover, in the Second Appeal, the evidence on the factual aspect cannot be re-appreciated and the factual Page 12 of 16 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:40:45 IST 2025 NEUTRAL CITATION C/SA/278/2024 ORDER DATED: 05/02/2025 undefined aspect has been dealt by the Trial Court and the Appellate Court and while hearing the Second Appeal under Section 100 of the Code of Civil Procedure, 1908, there cannot be a rowing inquiry into facts by examining the portion of evidence afresh to upset the well considering finding of the fact rendered by the Trial Court and the Appellate Cour. In the present case, the Trial Court and the Appellate Court has after appreciating the oral and documentary evidence have given finding on all the issues and after examining the entire evidence both oral and documentary, the Trial Court and the Appellate Court has passed the judgment and decree and in the Second Appeal, the Court cannot exceed its jurisdiction in reassessing, appreciating and making a rowing inquiry by entering into the factual arena of the case and in the present case the Trial Court and the Appellate Court have fairly appreciated the evidence and arrived at the conclusion, it is not required to substitute the finding on the factual aspect. The findings that have been arrived at or not erroneous or contrary to the mandatory provisions of law and the said findings arrived at by the Trial Court and the Appellate Court are on the basis of reasonings, more particularly the fact that the plaintiff is not able to prove the execution of the Will Exhibit 95.

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21. In the present case, the conclusion which has been reached by both the Trial Court and the Appellate Court cannot be interfered as the judgment and decree of the Court below are not perverse, arbitrary so as to warrant interference. Moreover, as per the well settled decisions of this Court as well as the Hon'ble Apex Court, the Court ordinary will not interfere with concurrent findings of fact except in exceptional cases where the findings are such that it shocks the conscious of the Court or may disrespect to the forms of legal process or some violation or some principle of natural justice or otherwise substantial and great injustice has been done.

22. It is required to be noted that in Second Appeal, the scope is very limited and the Court cannot re-appreciate the evidence. In the case of Navaneethammal v. Arjuna Chetty reported in 1996 (6) SCC 177, the Hon'ble Apex Court has observed as under:-

"11. This Court, time without number, pointed out that interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is Page 14 of 16 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:40:45 IST 2025 NEUTRAL CITATION C/SA/278/2024 ORDER DATED: 05/02/2025 undefined not expected to reappreciate the evidence just to replace the findings of the lower courts."

23. In the case of Jaichand (Dead) through Lrs and Other v. Sahnulal and Another reported in 2024 SCC OnLine SC 3864, the Hon'ble Apex Court has observed as under:-

"28. It is thus clear that under Section 100 CPC, the High Court cannot interfere with the findings of fact arrived at by the first Appellate Court which is the final Court of facts except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence."

24. Both the Trial Court and the First Appellate Court had in no uncertain terms come to the conclusion that the plaintiffs have failed to prove the execution of Will Exhibit-95 and the possession of the plaintiff in the disputed property and the said conclusion is not perverse nor is based on no evidence. The Trial Court as well as the First Appellate Court have discussed the evidence on record and then come to the conclusion that the plaintiff Page 15 of 16 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:40:45 IST 2025 NEUTRAL CITATION C/SA/278/2024 ORDER DATED: 05/02/2025 undefined has failed to prove execution of Will Exhibit-95 and the burden of proof was on the plaintiff and the plaintiff has not produced any evidence to prove execution of the said Will.

25. Under the circumstances, this Second Appeal is devoid of any substantial question of law. Both the learned Trial Court and first appellate Court have rightly decided the issue between the parties in the right perspective and as stated above no substantial question of law arises in the present appeal. The appellants have failed to prove their case before the learned trial Court as well as before the first appellate Court. This Court does not find any substance in the present Second Appeal as the same is devoid of any merit both on facts and law and the same is dismissed at admission stage.

(SANJEEV J.THAKER,J) URIL RANA Page 16 of 16 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Wed Feb 05 2025 Downloaded on : Wed Feb 05 22:40:45 IST 2025