Laxmi Prasad Jaiswal vs Dinesh Prakash Nigam And Others
2018 Latest Caselaw 856 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Reserved
 
Case :- SECOND APPEAL No. - 498 of 1989
 
Appellant :- Laxmi Prasad Jaiswal
 
Respondent :- Dinesh Prakash Nigam And Others
 
Counsel for Appellant :- B.K.Singh,N.Tewari,Pramod Kumar Shukla,V.R.Singh
 
Counsel for Respondent :- B.K.Saxena,A.Kumar
 

 
Hon'ble Dinesh Kumar Singh,J.

1. The present second appeal is directed against the judgment and decree dated 25.05.1989 passed by Civil Judge, Malihabad, District Lucknow in Regular Civil Appeal No.197 of 1982 whereby the appeal filed by the plaintiff-respondents was allowed and judgment and decree dated 24.04.1982 passed by the VIth Additional Munsif, Lucknow in Regular Suit No.30 of 1978 was set aside and the suit of plaintiff-respondents was decreed. This appeal was admitted on 25.07.1989 and an interim order was passed. It was directed to list this appeal for final hearing in the month of January, 1990. It is important to mention here that the appeal was not admitted on any substantial question of law inasmuch as no substantial question of law was framed at the time of admission of the appeal.

2. Briefly stated facts of the case are that the original plaintiffs brought the suit stating that Raja Ram, grandfather of Chhotey Lal (original plaintiff No.2) had a son namely, Pyarey Lal who was the Karta of the joint Hindu family consisting of his son and grandson. The defendant-appellant was tenant of the ancestral house, a joint Hindu family property. On 30.06.1973, Pyarey Lal died and, thereafter, the defendant-appellant became the tenant of original plaintiffs. It was alleged that the defendant was not paying rent since 1973 for which the plaintiffs gave a composite notice dated 12.11.1973 demanding the arrears of rent and also terminating the tenancy of the defendant in respect of the said house. It was alleged that Rs.200/- was due as arrears and prayer was made to pass a decree for the aforesaid amount along with damages at the rate of Rs.2 per day from the date of termination of tenancy and releif was claimed for ejectment of the defendant from the suit property and recovery of arrears of rent and damages amounting to Rs.240/-.

3. The defendant-appellant contested the suit and filed his written statement. The defendant-appellant contended that he was a tenant of Shri Pyarey Lal Nigam in respect of the house in question which was not a joint Hindu family property. Shri Pyarey Lal Nigam was the sole owner of the house in question who acquired it alone. It was the case of the defendant-appellant that Pyarey Lal Nigam had executed a will in favour of the defendant-appellant on 25.06.1973 which was got registered by the Sub-Registrar inspite of the objection of Dinseh Prakash Nigam. It was also said that Pyarey Lal entrusted the management of other land and house to the plaintiffs by the same will. Ownership of the plaintiffs over the house in question was denied by the defendant-appellant.

4. The plaintiffs filed their replication specifically stating that two months prior to his death, Sri Pyarey Lal was confined to bed. On 25.06.1973 he was not able to move out of the bed and he used to pass stool and urine on the bed itself. On 25.06.1973 Pyarey Lal was not in sound and disposing mind and there was no question of him executing the alleged will. It was said that defendant-appellant in order to grab the property of the plaintiffs had manufactured the documents with connivance of his friends. Pyarey Lal had bank account and he did not need any money. It was specifically denied that the plaintiff was drunkard as made out by defendant-appellant. It was said that some thumb impressions had been taken on the blank papers to withdraw some amount in absence of the plaintiffs by the defendant-appellant who had brought some Bank peon. The thumb impressions were taken on several papers. The plaintiffs were the natural heir entitled to property. It was further said that the defendant-appellant did not disclose as to where the will was executed and attested. Pyarey Lal was physically incapable of moving out of his bed and was not able to apply his mind. The fact remains that he died on 30.06.1973 only five days after execution of the alleged will.

5. On the basis of pleadings of the parties, the Trial Court framed as many as six issues as under :-

(i) Whether Pyarey Lal had on 25.06.1973 executed a valid will? if yes, then what would be its effect as stated in paragraphs 12 to 14 of the W.S.?

(ii) Whether the defendant is the tenant of the joint Hindu property as stated in para 3 of the plaint?

(iii)Whether the defendant had not paid the rent of the house in question as stated in paragraph 3 of the plaint?

(iv) Whether the house in question is an ancestral house of joint Hindu family property as stated in paragraph 3 of the plaint?

(v) What relief? and

(vi) Whether the suit is undervalued and court fee is not sufficiently paid as alleged in the W.S.?

6. The Trial Court held that Prarey Lal executed a valid will dated 25.06.1973 in favour of the defendant and also the house in question was not an ancestral property of a joint Hindu family. In view of the findings on aforesaid two issues, it was decided that since the will had been executed in respect of the house in question in favour of the defendant-appellant by Pyarey Lal, therefore, there was no question of any rent to be paid to the plaintiffs. In view of the aforesaid findings, the suit was dismissed with costs.

7. The plaintiff-respondents aggrieved by the aforesaid judgment and decree passed by the learned Trial Court filed the Regular First Appeal No.197 of 1982 in the Court of Civil Judge Malihabad, Lucknow. The learned Civil Judge vide impugned judgment and decree dated 25.05.1989 held that it was unbelievable that in the same will at one place the testator had said that since his only son was drunkard and he had no trust in him that he would be able to protect the property, he made a provision in favour of the defendant-appellant who was a tenant only for a one and half year in the disputed property and on the other hand rest of the properties and estate were given to the same son and his grandson in the same will. If the testator had so much concern to see that his property was not destroyed by his son then he would have given the entire property to the defendant-appellant. It was said that even if it was assumed that the testator's only son was incapable and drunkard then it was but natural that he would have willed his property in favour of his grandson against whom he had no such apprehension. It was also held that the will was executed in suspicious circumstances, therefore, it was the duty of the defendant-appellant to have proved the will by leading legally admissible evidence. After analysing the evidence led by the plaintiffs and the defendant-appellant, the Appellate Court came to the conclusion that the reason for making the will of the disputed house in favour of the defendant-appellant could not appear to be genuine inasmuch as if the testator was of the opinion that his only son was drunkard and incapable then he would never have made provision in the same will in respect of the other properties and estate in favour of his son and grandson.

8. It was also held that the will was not validly proved inasmuch as on 26.06.1973 the testator had signed some papers to be given in the bank but on will there was no signature but he put thumb impression. Tough it was admitted that he used to sign but it was only his thumb impression which was affixed on his will. It was also held that the witnesses, D.W.-1 and D.W.-2 had not said that after the will was written, it was read over to the testator and after understanding the contents thereof he put his thumb impression on it. If Pyarey Lal was in a position to travel to the Court to execute the will, he would not have put his thumb impression but he would have signed it as he used to sign. D.W.-2 had said that he was not present when the will was drafted and when he reached there draft was already ready and he had only put his signature on it. It was also held that once the defendant-appellant himself admitted that the testator used to sign, and it was his case that the testator came to the Court and executed the will then why the testator did not put his signature on the will but put his thumb impression if the testator was in a fit physical and mental condition, the defendant-appellant had failed to explain the said circumstance.

9. Thus, it was held that the will was not validly executed. The learned Appellate Court also held that the house in dispute was the ancestral property of the joint Hindu family and the plaintiff-respondents were the part of the joint Hindu family property and the defendant-appellant was the tenant in the said house and notice for payment of arrears of rent was served on him and he was liable to pay rent. In view of the aforesaid findings, the judgment and decree passed by the learned Trial Court was set aside and decree was passed in favour of the plaintiff-respondents decreeing the suit with costs. It was directed that the defendant-appellant would hand over the possession of the house to the plaintiff-respondents. Decree was also passed for Rs.240 in favour of the plaintiff-respondents and damages at the rate of Rs.2 per day with effect from 22.12.1973.

10. Learned counsel for the appellant has submitted that the only substantial question of law involved in the appeal is whether the defendant-appellant had proved the execution of will deed dated 25.06.1973 and, therefore, the will was a valid will. It is important to mention here that no substantial question of law was framed at the time of admission of the present appeal.

11. Section 100 of the Code of Civil Procedure reads as under:-

"100. Second appeal.- (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed ex parte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law formulated by it, if it is satisfied that the case involves such question."

12. Under Sub Section (1) of Section 100 of the Code of Civil Procedure, Second Appeal shall be entertained by the High Court only if the High Court is satisfied that the case involves a substantial question of law. Sub Section (3) makes it obligatory upon the appellant to precisely state substantial question of law involved in the appeal. Sub Section (4) provides that where the High Court is satisfied that a substantial question of law is involved in the case, it shall formulates that question. Once after hearing the appellant or his counsel, if the High Court finds a substantial question of law involved in the appeal, it has to formulate that question of law and then notice is directed to be issued to the respondents of the memo of appeal along with question of law framed by the High Court. Sub Section 5 provides that the appeal is to be heard only on the question formulated by the high court under Sub Section 4.

13. Thus, the jurisdiction of the High Court to decide the second appeal is confined only to the question framed by the High Court under Sub Section (4) of the Section 100 of the Code of Civil Procedure. The respondent, however, at the time of hearing of the second appeal is given a right under Sub Section (5) to raise an objection that the question framed by the High Court under Sub Section (4) does not involve in the appeal. As provided in proviso to Sub Section (5), the High Court is empowered to hear the appeal on any other substantial question of law which was not initially framed by the High Court under Sub Section (4). This power can be exercised by the High Court only after assigning the reasons for framing of such additional questions of law at the time of hearing of the appeal.

14. As mentioned above no question of law was framed before admitting the appeal and issuing the notice on the memo of appeal to the respondents. At the stage of final hearing of the appeal, learned counsel for the appellant has submitted that the substantial question of law as mentioned above is involved in the appeal. He further submits that this court on its own can frame the question of law if it is satisfied that the substantial question of law is involved in the appeal which needs to be decided by the Court.

15. After analysing the two judgments of the Courts below, this Court finds that the following substantial questions of law are involved in the present appeal for for determination :-

"(i) Whether the will deed dated 25.06.1973 was the validly executed document and the defendant-appellant had proved its execution in accordance with Section 63 of the Indian Succession Act, 1925?

(ii) If it is held that the house in question was an ancestral joint Hindu family property, could the testator was competent to make provision in the will in respect of the said property in favour of the defendant-appellant?"

16. Section 63 of the Indian Succession Act 1925 reads as under :-

"63 Execution of unprivileged Wills. --Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 12 [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:--

(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.

(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."

17. For a will to be validly executed requirements mentioned in the clauses (a), (b) and (c) of Section 63 of the Succession Act are to be complied with i.e. (a) the testator has to sign or affix his mark on the will, or it has got to be signed by some other person in his presence by his direction; (b) that the signature or mark of the testator, or the signature of the person signed at his direction, has to appear at a place from where it could appear that by that mark or signature the document is intended to have an effect as will; (c) the will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the will, or must have seen some other person sign on the will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgement of signature or mark, or of signature of such other person, and each of the witnesses has to sign the will in the presence of the testator.

18. Section 68 of the Evidence Act provides that how a document required by law to be attested can be proved. According to this Section, a document required by law to be attested shall not be used as evidence until at least one attesting witness 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. From joint reading of Section 63 of the Indian Succession Act with Section 68 of the Indian Evidence Act, it is for the person who is claiming the right on the basis of will needs to prove that the will was duly and validly executed. Merely proving that the signature or thumb impression on the will was of testator is not sufficient.

19. The Supreme Court in the case of Moonga Devi versus Radha Ballabh : (1973) 2 SCC 112 in para 10 has held that it is not merely of the genuineness of the signatures on which the proof of the execution of the will under Section 63 of the Indian Succession Act depends. It has to be proved that the will was attested in accordance with clause (c) of the section. That could not be done unless statement of the attesting witness could be taken into consideration.

20. The Supreme Court in the judgment of Madhukar D. Shende versus Tarabai Aba Shedage : (2002) 2 SCC 85 in para 8 has held that the conscience of the court has to be satisfied by the propounder of the will by adducing evidence so as to dispel any suspicion or unnatural circumstance in execution of the will. Para 8 of the judgment is extracted hereinbelow:-

"8. The requirement of proof of a will is the same as any other document excepting that the evidence tendered in proof of a will should additionally satisfy the requirement of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. If after considering the matters before it, that is, the facts and circumstances as emanating from the material available on record of a given case, the court either believes that the will was duly executed by the testator or considers the existence of such fact so probable that any prudent person ought, under the circumstances of that particular case, to act upon the supposition that the will was duly executed by the testator, then the factum of execution of will shall be said to have been proved. The delicate structure of proof framed by a judicially trained mind cannot stand on weak foundation nor survive any inherent defects therein but at the same time ought not to be permitted to be demolished by wayward pelting of stones of suspicion and supposition by wayfarers and waylayers. What was told by Baron Alderson to the jury in R. v. Hodge [(1838) 2 Lewis CC 227] may be apposite to some extent:

"The mind was apt to take a pleasure in adapting circumstances to one another and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenuous the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete."

The conscience of the court has to be satisfied by the propounder of will adducing evidence so as to dispel any suspicions or unnatural circumstances attaching to a will provided that there is something unnatural or suspicious about the will. The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well-founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict -- positive or negative."

21. From conjoint reading of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act, it is required that the execution of the will has to be attested by at least two witnesses but to prove the same in the Court at least one attesting witness has to be called to prove the execution of the will. The Supreme Court in the case of Janki Narayan Bhoir versus Narayan Namdeo Kadam: (2003) 2 SCC 91. Para 10 of the aforesaid judgment has held as under:-

"10. Section 68 of the Evidence Act speaks of as to how a document required by law to be attested can be proved. According to the said section, a document required by law to be attested 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. It flows from this section that if there be an attesting witness alive capable of giving evidence and subject to the process of the court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the will has got to prove that the will was duly and validly executed. That cannot be done by simply proving that the signature on the will was that of the testator but must also prove that attestations were also made properly as required by clause (c) of Section 63 of the Succession Act. It is true that Section 68 of the Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the will as envisaged in Section 63. Although Section 63 of the Succession Act requires that a will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the court. In a way, Section 68 gives a concession to those who want to prove and establish a will in a court of law by examining at least one attesting witness even though the will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that one attesting witness examined should be in a position to prove the execution of a will. To put in other words, if one attesting witness can prove execution of the will in terms of clause (c) of Section 63 viz. attestation by two attesting witnesses in the manner contemplated therein, the examination of the other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there was due execution of the will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the will by the other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution of the will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act."

22. In the present case there are several suspicious and unnatural circumstances present in execution of the will dated 25.06.1973 in favour of the defendant-appellant. Conscience of the Court is not satisfied from the reading of the evidence. Evidence is not such which is sufficient to dispel suspicion or unnatural circumstance in execution of the will. Pyarey Lal had only one son and grandson and their families. He was sick and infirm. The plaintiffs led the evidence to say that Pyarey Lal was not in a position to move out of the bed and he used to pass stool and urine itself on bed before 25.06.1973, the alleged date of the execution of the will. In fact the testator had died five days after on 30.06.1973. The defendant had not led any evidence to the effect that the testator was in a fit mental and physical condition to execute the will. Secondly, the very basis of giving the house in dispute to the defendant-appellant was that the testator's only son was drunkard and incapable of protecting the property but at the same time he had made provision in the same will in respect of his other properties in favour of that very son and grandson. The First Appellate Court has also found that the defence witnesses have not said that the will was read over to the testator before putting their signature on it. Further, it was admitted by the defendant-appellant i.e. D.W.-1 himself that the testator used to sign but on the will he had put his thumb impression. The defendant-appellant had not led any evidence to the effect that under what circumstances the testator did not sign particularly when the testator was in a position to travel to the Court for execution of the will and why did he not sign the will but put his thumb impression on it.

23. This Court, therefore, is of the opinion that the execution of the will was not beyond suspicion and it was surrounded by unnatural circumstances. Therefore, I find that the will was not validly executed document in accordance with law, therefore, the claim of the defendant-appellant on the basis of will cannot be sustained.

24. Coming to the second question even if it is assumed that the will was validly executed, if on evidence, the learned Appellate Court had recorded a finding of fact that the house in question was an ancestral property of joint Hindu family, therefore, the testator had no right to make provision of that property in favour of the defendant-appellant by executing a will. Whether the property in question was a testator's self acquired property or an ancestral property of the joint Hindu family is a question of fact and not a question of law. Since after analysing the evidence, the learned First Appellate Court has recorded a finding of fact that the suit property was an ancestral joint Hindu family property, the testator had no right to will the said property in favour of the defendant-appellant. The defendant-appellant cannot claim right of ownership over the house on the basis of the alleged will dated 25.06.1973.

25. In view of the aforesaid discussion, the present appeal fails and is accordingly dismissed. Judgment and decree passed by First Appellate Court is hereby upheld.

Order Date:-24.05.2018

prateek