Allahabad High Court

Satya Prakash vs Smt. Sheela Devi & Others on 30 March, 2011

Bench: Shishir Kumar




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 19
 

 
Case :- SECOND APPEAL No. - 108 of 2011
 

 
Petitioner :- Satya Prakash
 
Respondent :- Smt. Sheela Devi & Others
 
Petitioner Counsel :- Ramendra Asthana
 

 
Hon'ble Shishir Kumar,J.

Heard learned counsel for the appellant.

This is the plaintiff's second appeal arising out of suit for cancellation of will deed executed by one Sher Gir in favour of his daughter Smt. Sheela Devi. The Suit No. 42 of 1992, has been dismissed vide judgment and decree dated 03.04.2007 and the appeal filed by the plaintiff / appellant has also been dismissed vide judgment and order dated 16.11.2010. Hence, the present second appeal.

The brief facts, as stated in the plaint, are that parties are descendant of one Phool Gir. It appears that Sher Gir, who was the son of Phool Gir, has executed a will in favour of his daughter, as he was having no son. The plaintiff / appellant claimed that during his life time the executor of the will was living with him and the property was being maintained by the family members. The appellant was looking after his welfare and he has not executed any will deed in his life time. Legally, according to Section 171 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, the appellant is the legal heir and he can only inherit the property. After marriage, defendant No.1 went with her husband and she has got no concern with the property in dispute. It was in the month of March 1991, he came to know that a will was executed on 18.01.1989. Legally, Sher Gir was not having any right to execute said will, therefore, it may be treated to be a forged document. He has never visited the registration office and in case any will is there that cannot be said to be executed on his own free will. It was also pleaded in the plaint that the appellant is in possession of the property in dispute and, therefore, the defendants may be restrained from interfering in the possession of the property in question.

The defendants filed written statement denying the claim of the plaintiff / appellant stating therein that she was the only daughter of the deceased Sher Gir, a will deed was executed which was registered in his life time. Further, the property in question was partitioned during his life time. After execution of the will deed, she is in possession of the property in dispute, as such the appellant has no concern with the said property.

Upon the pleadings of the parties, various issues have been framed and one of the main issue was whether the will dated 18.01.1989 is liable to be cancelled and whether plaintiff / appellant is the owner in possession of the property in dispute.

The document 9Ga-1, which is an attested true copy of the will, 10Ga-1 Khatauni as well as Khasra, relating to the property mentioned in the will has been filed on behalf of the plaintiff. On behalf of the defendants / respondents a document 52Ga-1 the will deed in original as well as other documents and statements of witnesses Ved Prakash, Brajesh Gir and Malkhan was filed. The trial court examined PW-1 Kali Charan Gir, who has stated in his statement that she is the heir of Sher Gir. Further, he has gone through the will and witnesses to the will were Sohan Gir and Brajesh Gir and at the time of the execution of the will, there were some differences between them. During pendency of the suit, Smt. Sheela Devi has sold the property in favour of Mahendra Gir. Shiv Raj. PW-2 in his statement has said that Sohan Singh has given the statement in favour of Smt. Sheela Devi after taking certain amount and he has heard that the will, which has been executed in favour of Smt. Sheela Devi, is a forged one. DW-1-Mahendra Gir has given a statement before the Court that partition of the property between the brothers has taken place prior to the date of execution of the registered will. The defendant no.1 appeared as DW-2 and made a statement that she being the alone daughter of her father on the day of execution of the will deed she was called and the stamp papers were purchased by her father and then the will was executed.

The trial court on issue no.1 on the basis of statement has recorded a finding that burden regarding proving the will dated 18.01.1989 is upon the plaintiff. In case the stamp papers were not purchased or the executor has not went to the registration office or has not put his signature on the will in question, the burden was upon the plaintiff / appellant to prove the same. Though, the plaintiff has denied this allegation that defendants were living with the executor of the will, and will has been registered and the stamp papers were purchased by Sher Gir himself.

On the basis of argument raised on behalf of plaintiff / appellant, trial court held that provisions of Section 33 of the Indian Evidence Act, 1872, will not be applicable being the fact that main attesting witness has not been produced and the will has not been proved, therefore, it was the duty of the court below to call upon the witness, who was alive, to give statement before the court in view of Section 68 of the Indian Evidence Act, 1872. There will be no applicability of Section 33 of the Act. Placing reliance upon the said statement, an application dated 12.07.2006, was filed on behalf of defendants to the effect that the marginal witness of the will who was one of the witness in the list submitted by the defendants has been maneuvered by plaintiff / appellant, therefore, he has not been produced, but at the time of proceeding pending before the court itself in a mutation proceeding he has given a statement and his statement has been brought on record. Taking into consideration all this facts, the trial court has recorded a finding that the plaintiff has failed to prove that will executed in favour of the defendants is a forged document and as regards the owner in possession of the property in dispute the burden was upon the plaintiff to prove the same, but on behalf of DW-3 it has been said that he is in possession of the property in dispute and from the record also it is clear that he is not in possession and defendants have proved their possession over the property in dispute.

After recording such finding, the suit was dismissed. An appeal was filed on behalf of the plaintiff / appellant that too has been dismissed confirming the findings recorded by the trial court holding therein that plaintiffs have failed to prove that the registered will executed in favour of the defendant is a forged document and it is hit by Section 68 of the Indian Evidence Act, 1872.

Sri Ramendra Asthana, learned counsel for the appellant has placed reliance upon Section 68 of the Indian Evidence Act, 1872, which is being quoted below:-

68. Proof of execution of document required by law to be attested.- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:

[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908 ), unless its execution by the person by whom it purports to have been executed is specifically denied.]

Placing reliance upon the aforesaid provision, learned counsel for the appellant has submitted that if a document is required by law to be attested, it shall not be used as evidence until one of the attesting witnesses to the document is called for the purpose of proving its execution, in case the attesting witness is alive. In such circumstances, the court below placing reliance upon the provisions of Section 33 of the Indian Evidence Act, 1872, has committed an error apparent on the face of the record. Section 33 of the Indian Evidence Act, 1872, is being quoted below:-

33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.- Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable;

Provided--

that the proceeding was between the same parties or their representatives in interest;

that the adverse party in the first proceeding had the right and opportunity to cross- examine;

that the questions in issue were substantially the same in the first as in the second proceeding.

Explanation.-- A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.

He has further submitted that Section 33 of the Act will not be relevant for the purpose of present controversy in view of the fact that in case any evidence given in a judicial proceeding or before any person authorized by law will be relevant only when the witness is dead or cannot be found or is incapable of giving evidence. Admittedly, one of the witness was available and his name was in the list of the witnesses, given by the defendants, therefore, in view of Section 68 of the Indian Evidence Act, it was necessary to call him and to take his statement to prove the will. In view of Section 154 of the Indian Evidence Act, 1872, the Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party. He has further placed reliance upon two judgments-one of this Court and another of the apex court. In 2005 (99) RD 513; Pooran Singh vs. Naraini and others, it has been held that in case the attesting witnesses are alive, but not examined to prove the will execution, then it cannot be said that execution of the will is proved. He has placed reliance upon paras 9 and 15 of the said judgment, which are being reproduced below:-

"9. All the Courts below have recorded a finding that execution of will in favour of plaintiff was not proved by examining attesting witnesses. From the record also it transpires that execution and attestation of will in question was not proved and suit was rightly dismissed by the Courts below. It is also clear from the record that attesting witnesses were alive, but defendant did not summon to examine them in the Trial Court. Finding recored by the Courts below that execution of will relied upon by the plaintiff was not proved does not suffer from any error of law. No material was brought to the notice of the Court also to show any perversity or infirmity in the finding.

15. As attestation and execution of will was not proved by the plaintiff-petitioner, suit was rightly dismissed by all the Courts below. There is no perversity or error of law in any of the impugned judgments of the Courts below. No other point was pressed before the Court by the learned Counsel for the petitioner."

Another judgment relied upon by learned counsel for the appellant is (2009) 7 Supreme Court Cases 412; State of Orissa versus Prasanna Kumar Mohanty, para 10 of which is being reproduced below:-

"10. Section 33 of the Evidence Act 1872 reads as under:

Provided--

that the proceeding was between the same parties or their representatives in interest;

that the adverse party in the first proceeding had the right and opportunity to cross- examine;

that the questions in issue were substantially the same in the first as in the second proceeding."

The said provision therefore, will be applicable inter alia in a case where either the witness who has been examined-in-chief is incapable of giving evidence or is absent without any amount of delay or expense which the court considers unreasonable. A criminal trial or inquiry shall be deemed to be a proceeding in terms of the Explanation appended to Section 33 between the prosecutor and the accused."

Placing reliance upon the aforesaid judgments, learned counsel for the appellant submits that Section 33 of the Indian Evidence Act, will only be applicable in case where either the witness who has been examined-in-chief is incapable of giving evidence or is absent without any amount of delay. In such circumstances, appellant submits that court below has committed an error apparent on the face of the record by dismissing the suit and recording a finding to this effect that will executed in favour of the defendants was a valid document.

After consideration of the submission made on behalf of appellants and after perusal of the record and findings recorded by the courts below, the question for consideration by this Court is whether the plaintiff / appellant, in the facts and circumstances of the present case, was able to prove that will executed in favour of the defendant was not a valid document and executed by a person who was not authorized to execute the same or he was having no right in the property in question. The plaintiff / appellant has come with a case that no document was ever executed and the executor has never visited the registration office for the purpose of signature upon the document and, therefore, the will executed in favour of the defendant / respondent will be treated to be null and void. The trial court after considering the evidence on record has recorded a finding that from the statement of witnesses itself it clearly appears that will was executed in favour of the daughter after purchasing the requisite stamp paper and the marginal witnesses have also proved the execution of the will. A finding has been recorded that as out of two witnesses one witness has expired, but another witness has been maneuvered by the plaintiff, therefore, he was not able to appear before the Court. The courts below after considering all the relevant records and documents has recorded a finding that in a mutation proceeding he has given a statement regarding execution of the document, therefore, in such circumstances, if he was not able to appear before the Court, then the statement given by him can be taken into consideration for the purpose of proving a document. As regards the applicability of Section 33 of the Evidence Act, in my opinion, the contention of the appellant is not acceptable being the fact that Section 33 of the Evidence Act clearly indicate that evidence given by a witness in a judicial proceeding or before any person authorized by law is relevant for the purpose of proving in a subsequent judicial proceeding, in case the witness is dead or cannot be found or is incapable of giving evidence. Admittedly, in the mutation proceeding he has given a statement in favour of the defendant regarding factum and validity of the will deed. It was the case before the court that the witness who is alive has been maneuvered by the plaintiff, therefore, he could not appear. The proviso clause of Section 33 of the Evidence Act clearly indicates that in case the proceeding is between the same parties or their representatives in interest, then in that case said evidence can be taken into consideration. As regards the applicability of Section 68 of the Evidence Act, the proviso clause clearly indicates that in case it is a registered document in accordance with provision of Indian Registration Act unless its execution by the person by whom it purports to have been executed is specifically denied. In the present case, the said provision will not be applicable in view of the fact that the one of the witnesses has proved the document in a mutation proceeding and had made a statement regarding factum of genuineness of the will, therefore, Section 33 of the Evidence Act 1872, will be made applicable and the court below after placing reliance upon the aforesaid provision has taken into consideration the fact that will executed is a genuine document in favour of the defendant.

As regards the judgment cited by learned counsel for the appellants is concerned, there is no dispute to this effect that if a document has not been proved by a witness, as required under Section 33 of the Act, then it was the duty of the court below to summon the said witness in case of availability and to get the document proved. But, in the present case as admittedly it was pleaded on behalf of defendants that the witness has been maneuvered by the plaintiff, though the statement given in the mutation proceeding has been brought on record and no objection to that effect was ever filed by the plaintiff / appellant, therefore, placing reliance upon Section 33 of the Evidence Act 1872, the court below was justified in taking into consideration the said fact and has held that the plaintiff has failed to prove that the will has not been executed. As regards the submission that according to Section 171 of the U.P.Z.A. & L.R. in case the will has been executed leaving the legal heirs, then a mention to that effect has to be made in the document that why it is being executed in favour of such person. The court below has dealt with the matter and has held that the said judgment is not applicable in the present case being the fact that this will be necessary in case where the executor is executing a will in the presence of son and daughter in favour of one of the family member, then it has to be mentioned, but in the present case the executor is having only one daughter, therefore, that principle enumerated will not give any benefit to the appellant, as such, said judgment is not applicable in the present case.

In view of the aforesaid facts and circumstances, in my opinion, the findings recorded by the court below are findings of fact, needs no interference by this Court. As no substantial question of law is involved in the present appeal, therefore, it is hereby dismissed.

No order as to costs.

Order Date :- 30.03.2011