S.K.Tiwari vs Sangeeta Tiwari
2023 Latest Caselaw 6357 MP

                                                          1                       F.A. No.165 of 2000



                          IN THE        HIGH COURT OF MADHYA PRADESH
                                             AT JABALPUR
                                                  BEFORE
                               HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                                          ON THE 20th OF APRIL, 2023
                                         FIRST APPEAL No.165 of 2000
                          BETWEEN:-
                          RAVINDRA S/O NARAYANRAO AKHRE,
                          AGED    ABOUT   64 YEARS,  R/O
                          DEVKHAPA,   TAHSIL  PANDHURNA,
                          DISTRICT CHHINDWARA (MADHYA
                          PRADESH)
                                                                               .....APPELLANT
                          (BY SHRI ATUL ANAND AWASTHY - SENIOR ADVOCATE WITH
                          SHRI DESHHIT SOUBHRI - ADVOCATE & SHRI ABHAY TIWARI -
                          ADVOCATE)
                          AND
                          1.   SMT. SANGEETA TIWARI, AGED
                               ABOUT 25 YEARS, WIFE OF LATE
                               BHAGWATI PRASAD TIWARI, C/O
                               SHRI  SHANKAR    LAL  SHUKLA
                               (MADHYA PRADESH)
                          2.   RAHUL TIWARI, AGED ABOUT 9
                               YEARS, SON OF LATE BHAGWATI
                               PRASAD TIWARI, MINOR, THROUGH
                               MOTHER SANGEETA TIWARI, C/O
                               SHANKAR LAL TIWARI (MADHYA
                               PRADESH)
                                                                             .....RESPONDENTS
                          (BY NONE)

                                This appeal coming on for hearing this day, the court passed the
                          following:
                                                     JUDGMENT

This First Appeal under Section 96 of CPC has been filed against the judgment and decree dated 21/01/2000 passed by Second Additional District Judge, Hoshangabad in Civil Suit No.26-A/1996,

Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 21-Apr-23 6:43:29 PM

by which the suit filed by the plaintiff for declaration of title and permanent injunction has been rejected.

2. The facts necessary for disposal of the present appeal in short are that the testator Late Bhagwati Prasad was working as Parcel Clerk at Railway Station Itarsi. The plaintiff is the nephew of Late Bhagwati Prasad. The marriage of the defendant No.1 with Bhagwati Prasad is not in dispute, however the legitimacy of the defendant No.2 is under dispute. It is the case of the plaintiff that Late Bhagwati Prasad was married to the defendant No.1. She resided with Late Bhagwati Prasad only for 2-3 days and thereafter, she deserted him for the reason that Bhagwati Prasad was suffering from Leucoderma. Accordingly, it was alleged that the defendant No.2 was not born out of the wedlock of the defendant No.1 with Bhagwati Prasad. Bhagwati Prasad was being looked after by the plaintiff and his parents. Bhagwati Prasad was not well and therefore, he was hospitalized and just one day prior to his death, he executed a Will in favour of the plaintiff and accordingly, the suit was filed for declaration of title and permanent injunction.

3. The defendants filed their written statement and claimed that Bhagwati Prasad had never executed any Will. It was claimed that the Will relied upon by the plaintiff is a forged document. It was also the case of the defendants that Bhagwati Prasad was a drunker and in the intoxicated condition, the signatures of Bhagwati Prasad were obtained by the plaintiff on the blank paper. It was further claimed that three days prior to the death of the Bhagwati Prasad, his condition was precarious and he was in unconscious condition and had lost the ability to think and understand the things. Further, the legitimacy of the defendant No.2 was also claimed by the defendants. It was claimed that

Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 21-Apr-23 6:43:29 PM

it is true that the defendant No.1 was residing separately but for a considerable long time, she was in the company of the testator - Bhagwati Prasad. Therefore, it was claimed that the defendant No.2 is the legitimate son of Late Bhagwati Prasad.

4. The Trial Court after framing issues and recording evidence dismissed the suit by holding that the plaintiff has failed to prove the execution of Will.

5. Challenging the judgment and decree passed by the Trial Court, it is submitted by the counsel for the appellant that the plaintiff has proved the Will, Ex.P-3, in accordance with Section 63 of Indian Succession Act. One of the attesting witnesses of the Will was examined by the plaintiff. It is submitted by the counsel for the appellant that the Trial Court should not have disbelieved the signatures of the testator on the Will. The presence of attesting witness Ashwani Kumar (PW-3) was wrongly disbelieved by the Trial Court. Furthermore, the defendant No.2 is not the legitimate son of Bhagwati Prasad, therefore he had every reason to execute a Will in favour of his nephew.

6. None appears for the respondents though served.

7. Heard the learned counsel for the appellant.

8. It is well established principle of law that the burden is on the propounder of the Will to remove all the suspicious circumstances which are attached to a Will.

9. It is the case of the appellant that the defendant No.2 is not the son of the testator Bhagwati Prasad as the defendant No.1 had deserted

Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 21-Apr-23 6:43:29 PM

him just 2-3 days after her marriage because Late Bhagwati Prasad was suffering with Leucoderma, whereas the defendant No.2 was born after two years of the marriage. Thus, it was claimed that the defendant No.2 is not the son of Bhagwati Prasad.

10. Considered the submission made by the counsel for the appellant.

11. Section 112 of the Evidence Act reads as under:-

"112. Birth during marriage, conclusive proof of legitimacy.--The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten."

12. Undisputedly, the marriage of Bhagwati Prasad with defendant No.1 was never broken.

13. Now the only question for consideration is as to whether Bhagwati Prasad and defendant No.1 had access to each other or not?

14. Undisputedly, the defendant No.1 had filed an application under Section 125 of Cr.P.C. against Late Bhagwati Prasad. In reply to the said application, it was claimed by Late Bhagwati Prasad that he is impotent. It was also claimed in the said reply that the defendant No.1 had resided with Bhagwati Prasad only for three days after her marriage. The parents of the defendant No.1 were so poor that whatever ornaments were given by the parents of Bhagwati Prasad to defendant No.1, the parents of defendant No.1 sold the same to perform

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second marriage of the defendant No.1. Thereafter, another defence was taken in the application that since Bhagwati Prasad is suffering from Leucoderma, therefore defendant No.1 is not interested in residing with him. The certified copy of the reply submitted by Bhagwati Prasad in the proceedings under Section 125 Cr.P.C. was filed by the plaintiff as Ex.P-4-C. This certified copy of the reply contains the signatures of Bhagwati Prasad which are in Hindi. The plaintiffs have deliberately not filed any documents to show about the outcome of the proceedings under Section 125 of Cr.P.C. Thus, not only Bhagwati Prasad had taken a defence that he is impotent but he had also taken a defence that he is suffering from Leucoderma. Although it was alleged in the reply that defendant No.1 has been remarried by her parents but name of her second husband was not disclosed.

15. Since the continuation of valid marriage between the defendant No.1 and Bhagwati Prasad is undisputed as it is nobody's case that any divorce had taken between Bhagwati Prasad and defendant No.1, therefore the birth during marriage will be a conclusive proof of legitimacy unless and until it can be shown that the parties to the marriage have no access to each other at any time when he could have been begotten.

16. Suresh Kumar (PW-2), father of the plaintiff, who is the scribe of the Will, has not stated that the defendant No.1 had deserted Bhagwati Prasad. In fact he has not uttered single word with regard to the defendant No.1. However, Anjali Tiwari (PW-1) has stated that since Bhagwati Prasad was suffering from Leucoderma, therefore the defendant No.1 was not interested to reside with him and she stayed

Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 21-Apr-23 6:43:29 PM

with him only for three days, whereas defendant No.1 was born after two years of marriage. However, in paragraph 4 of her cross- examination, she had admitted that Bhagwati Prasad was suffering from Leucoderma even prior to the date of his marriage and his white spots were also seen by the parents of the girl. There is no specific averment that Bhagwati Prasad and defendant No.1 never had any access to each other any time when he could have been begotten.

17. Furthermore, when the paternity of defendant No.2 was challenged by the plaintiff, then not only no evidence was led to prove such allegation but they also did not file any application for DNA test. Furthermore, the plaintiff has not disclosed the name of the person from whom the defendant No.1 might have got pregnant. Thus, it is clear that the plaintiff has failed to prove that the defendant No.2 was not the son of the testator - Bhagwati Prasad.

18. Under these circumstances, it is held that there was no good reason for the testator to bequeath his property to his nephew by ignoring the legitimate claim of his wife as well as his son.

19. Suresh Kumar (PW-2) is the scribe of the Will. He is also the elder brother of the testator Bhagwati Prasad and plaintiff is the son of Suresh Kumar (PW-2), therefore he is vitally interested in the Will and he cannot be said to be an independent person. He has stated that the Will was dictated by Bhagwati Prasad and he had written the same. However, in the entire evidence, he has not said that after writing down the Will, he had ever read-over the Will to Bhagwati Prasad or Bhagwati Prasad read and understood the Will before signing it. He has also not stated that Bhagwati Prasad had signed the Will in the

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presence of the witnesses and the witnesses had signed the Will in the presence of the testator. He has also stated that before taking the dictation he had sought certificate with regard to the mental fitness of the Bhagwati Prasad but before the certificate could be granted, as the time was passing, therefore the Will was written. However, he fairly admitted that on the next date of execution of so called Will, Ex.P-3, Bhagwati Prasad breathed his last. This statement clearly shows that this witness was not ready to wait for certificate from Doctor because this witness was apprehensive that death may take place at any point of time.

20. Ashwani kumar (PW-3) has claimed himself to be one of the attesting witness of Will. This witness had specifically admitted that the mother of the plaintiff is his cousin sister. Thus, he is also not an independent witness. This witness has stated that Suresh Kumar (PW-2) after writing the Will had read over the Will to the testator but Suresh Kumar (PW-2) has not stated so. He stated that he went to the Doctor for obtaining the permission to write the Will but the permission was not granted on the pretext that the same will be granted by the in-charge Doctor.

21. Furthermore, the Court below has given a specific finding that the testator of Will was not in a fit state of mind. Even it is the case of the plaintiff that the physical condition of the testator was deteriorating and he was hospitalized for about a week and he expired on the very next day of the execution of the Will.

22. So far as the exercise of power under Section 73 of Evidence Act to compare the signatures of the testator on the Will is concerned, it is

Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 21-Apr-23 6:43:29 PM

true that the Court should be slow in comparing the signatures on its own but in the light of the findings given by this Court in the previous paragraphs, if the signatures of the deceased on the Will are compared with the admitted signatures on his reply to application under Section 125 of Cr.P.C, Ex.P-4c, then it is clear even from the naked eye that the signatures of testator in Hindi are completely different.

23. Since the propounder of the Will has failed to remove all the suspicious circumstances which are attached to the Will, Ex.P-3, and the defendant No.1 is the wife of the testator and the defendant No.2 is the son of the testator and there was no reason whatsoever to deprive them from the property and estate of the deceased by executing a Will in favour of his nephew, this Court is of the considered opinion that the Trial Court did not commit any mistake by holding that the Will relied upon by the plaintiff was not proved.

24. Accordingly, no case is made out warranting interference in the matter.

25. As a consequence thereof, the judgment and decree dated 21/01/2000 passed by Second Additional District Judge, Hoshangabad in Civil Suit No.26-A/1996, is hereby affirmed.

26. The appeal fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE shubhankar

Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 21-Apr-23 6:43:29 PM