Madhya Pradesh High Court
Sitaram vs Smt. Usha Jainj (Deceased) Thr. ... on 26 April, 2023
Author: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
A T JA BALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 26th OF APRIL, 2023
FIRST APPEAL No. 94 of 2017
BETWEEN:-
1. SMT. SUMAIYA SAJJAD
W/O SHRI SAJJAD
HUSSAIN, AGED ABOUT 55
YEARS, HOUSE NO.49
GALLA BAZAR ROAD
JAHANGIRABAD BHOPAL
(MADHYA PRADESH)
2. KU. AKSA JALAL D/O
JALALUDDIN HOUSE NO.
13 TOL WALI, MASJID
ROAD (MADHYA
PRADESH)
.....APPELLANTS
(BY SHRI AMIT KHATRI - ADVOCATE)
AND
1. KAILASH JAIN S/O NOT
MENTION, AGED ABOUT
57 YEARS, HOUSE NO.380
CATEGORIZED MARKET
NEW KABADKHANA
BHOPAL (MADHYA
PRADESH)
2. RAHUL JAIN S/O
KAILASH JAIN HOUSE
NO.380 CATEGORIZED
MARKET NEW
KABADKHANA BHOPAL
(MADHYA PRADESH)
3. RANITA JAIN D/O
KAILASH JAIN, AGED
ABOUT 55 YEARS, HOUSE
2
NO.380 CATEGORIZED
MARKET NEW
KABADKHANA BHOPAL
(MADHYA PRADESH)
4. MAINA JAIN D/O
KAILASH JAIN HOUSE
NO.380 CATEGORIZED
MARKET NEW
KABADKHANA BHOPAL
(MADHYA PRADESH)
5. NAZMA W/O HASIN
KHAN, AGED ABOUT 48
YEARS, HOUSE NO. 1,
BANK COLONY WARD,
NO. 64 (MADHYA
PRADESH)
6. SITARAM S/O HIRALAL,
AGED ABOUT 45 YEARS,
1403 QUARTER NO. 10,
ARJUN WARD (MADHYA
PRADESH)
7. STATE OF MADHYA
PRADESH THROUGH
COLLECTOR BHOPAL
BHOPAL (MADHYA
PRADESH)
.....RESPONDENTS
(RESPONDENTS NO.1, 2, 3, 4 AND 5 BY SHRI SURYA PRATAP SINGH RAI -
ADVOCATE)
FIRST APPEAL No. 139 of 2017
BETWEEN:-
SITARAM S/O SHRI
HIRALAL, AGED ABOUT 45
YEARS, 1403 QR. NO.10
ARJUN WARD BHOPAL
(MADHYA PRADESH)
.....APPELLANT
(NONE)
3
AND
1. SMT. USHA JAIN
(DECEASED) THR. LRS.
SHRI KAILASH JAIN
S/O SHRI LAL CHAND
JAIN, AGED ABOUT 50
YEARS, HOUSE NO.380
CATEGORIZED
MARKET NEW
KABADKHANA
BHOPAL (MADHYA
PRADESH)
2. RAHUL JAIN S/O
KAILASH JAIN, AGED
ABOUT 23 YEARS,
HOUSE NO 380
CATEGORIZED
MARKET NEW
KABADKHANA
(MADHYA PRADESH)
3. MS RANEETA JAIN D/O
KAILASH JAIN, AGED
ABOUT 27 YEARS,
HOUSE NO 380
CATEGORIZED
MARKET NEW
KABADKHANA
(MADHYA PRADESH)
4. MS MAINA JAIN D/O
KAILASH JAIN, AGED
ABOUT 23 YEARS,
HOUSE NO 380
CATEGORIZED
MARKET NEW
KABADKHANA
(MADHYA PRADESH)
5. SMT NAZMA W/O
HASEEN KHAN, AGED
ABOUT 48 YEARS,
HOUSE NO 1 BANK
COLONY WARD NO 64
(MADHYA PRADESH)
4
6. COLLECTOR THE
STATE OF MADHYA
PRADESH BHOPAL
(MADHYA PRADESH)
7. SMT SUMAIYA W/O
SAJJAD HUSSAIN
HOUSE NO 49 GALLA
BAZAR ROAD
JEHANGIRABAD
(MADHYA PRADESH)
8. KU AKSA D/O
JALALUDDIN HOUSE
NO 13 TOLL WALI
MAZID ROAD
(MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENTS NO.1 TO 4 BY SHRI SURYA PRATAP SINGH RAI - ADVOCATE )
(RESPONDENTS NO.7 AND 8 BY SHRI AMIT KHATRI - ADVOCATE)
"Reserved on : 12.04.2023"
"Pronounced on : 26.04.2023".
These appeals having been heard and reserved for judgment, coming
on for pronouncement this day, the court passed the following:
JUDGMENT
1. Heard on I.A.No.14816/2017, I.A.No.14818/2017, I.A.No.15149/2017
and I.A.No.6171/2018, applications under Order 1 Rule 10 CPC.
2. All the four applications have been filed on the ground that the applicants
have purchased the suit property during the pendency of this litigation.
However, none of the applicants had purchased the property after taking
leave from this court. Section 52 of the Transfer of Property Act takes
care of the situation in hand. Under these circumstances this Court is of
the considered opinion that after having purchased the property in dispute
without leave of the Court, they are not required to be heard at this stage
because appeal is to be decided on the basis of material which is available
on record and the applicants cannot lead any additional evidence.
Accordingly, I.A.No.14816/2017, I.A.No.14818/2017, I.A.No.15149/2017
and I.A.No.6171/2018 are hereby rejected.
3. By this common Judgment, F.A. No. 94 of 2017 and F.A. No. 94 of 2017
shall be decided.
4. Both the First Appeals have been filed under Section 96 of CPC against
the Judgment and Decree dated 6-12-2016 passed by 11th Additional
District Judge, Bhopal in R.C.S. No. 498-A/2010.
5. The present appeal has been filed by the defendants.
6. The Plaintiff Smt. Usha Jain and Smt. Nazma filed a civil suit for
declaration of title and permanent injunction. It is their case that
Malthuram was the original owner of the suit property. It was pleaded that
Chandra Kumar Jain who was the Holder of Power of Attorney on behalf
of Govaiyabai, the widow of Malthuram, executed the sale deed dated 10-
11-2004 in favour of plaintiff no.1. Thereafter, the plaintiff no.1 came in
peaceful possession of the same. Thereafter, the name of plaintiff no.1
was mutated in the revenue records. The plaintiff constructed a gate, guard
room and also constructed fencing around the land in dispute. The
plaintiff no.1 appointed Shri Iftekhar Khan as her Power of Attorney by
registered Power of Attorney dated 7-6-2009, who alienated Kh. No. 14/2
area 1 hectare, Kh. No. 15/2 area 1.652 hectares to plaintiff no.2 by
registered sale deed dated 6-8-2009. The property shown in red colour in
plaint map is in ownership and possession of plaintiff no.1 whereas
property shown in green colour is in ownership and possession of plaintiff
no.2. Thereafter, the name of plaintiff no.2 was mutated in the revenue
records. The defendant no.1 filed an appeal before the S.D.O. on the
ground that the original owner Malthuram was his uncle and Malthuram
had no male issue. Thereafter, the name of his widow Smt. Gavaiya bai
was recorded in the revenue records. The defendant no. 1 also claimed
that on 10-7-1987 Malthuram had executed a Will which was to the effect
that after the death of Malthuram, Govaiyabai shall have limited right of
maintenance from the property and after her death, the property would go
to the defendant no.1. The order of mutation passed in favour of plaintiff
no. 1 was challenged by the defendant no.1 and S.D.O. by order dated 28-
5-2009 set aside the order of mutation and remanded the matter back to
Tahsildar. Accordingly, the Tahsildar by order dated 10-2-2010 directed
for mutation of name of defendant no.1 Sitaram. The said order was
affirmed by S.D.O. by order dated 11-8-2010 but held that the matter be
left to the discretion of the Civil Court. It was claimed that Malthuram
had not executed any Will in favour of defendant no.1. The Will of
Malthuram relied upon by the defendant no. 1 is a concocted and
fabricated document. The Will was made public after 21 years of its
execution which itself is a suspicious circumstance. The plaintiff through
Shri M.Y. Khan, a property broker collected the information regarding
Stamp Paper used for preparing Will. The Sub-Registrar by his reply dated
10-6-2010, informed "that after perusing the record of stamp vendor Shri
S.A. Raza, the Will is a forged document". That now the defendant no.1
is trying to alienate the property. Thus, the suit was filed for declaration of
title, as well as for declaration that Will dated 10-7-1987 purportedly
executed by Malthuram is Null and Void as well as for permanent
injunction.
7. During the pendency of the suit, the plaint was amended and it was
pleaded that the defendant no.1 has alienated some part of the disputed
property i.e., Kh. No. 14/1/2,14/2,15/1 and 15/2 total area 2.420 hectares
to defendants no. 3 and 4. The defendants no. 3 and 4 have illegally got
their names mutated in the revenue records. It was also pleaded that by
order dated 10-2-2010, proceedings in respect of 2.420 hectares were
decided but lateron, the area of the land was corrected as 3.26 hectares
which is illegal and was done without any opportunity of hearing. Thus,
the mutation orders dated 10-2-2010 and 3-12-2010 were also claimed to
be illegal and Null and Void.
8. The defendant no.1 filed his written statement and claimed that provisions
of Order 1 Rule 3-B and Order 6 Rule 4-A of CPC have not been
complied with. It was pleaded that the suit has been overvalued whereas
the lands are separately assessed to land revenue and are paying land
revenue. The plaintiff no.1 and plaintiff no.2 purchased the suit lands by
two different sale deeds and there is no privitises in between them. The
cause of actions are different and are in respect of different lands. Smt.
Govaiyabai had only life interest in the property which stood reverted
back to the defendant no.1. Neither Govaiyabai nor the plaintiffs were
ever in actual possession of the suit lands.
9. The Trial Court after framing issues and recording evidence, partially
decreed the suit and held that plaintiff no.1 Smt. Usha Jain is owner and in
possession of Kh. No. 14/1 and Kh. No. 15/1 area 1.608 hectares. The
Plaintiff No.2 Smt. Nazma is the owner and in possession of Kh. No. 14/2
area 1 hectares and 15/2 area 1.652 hectares. The Will dated 10-7-1987 is
not binding on the plaintiffs and accordingly mutation done on the basis of
Will is null and void. The defendants were also restrained from
interfering with the possession of the plaintiffs either by themselves or
through their agents.
10. The defendant no.1 Sitaram has filed F.A. No. 139 of 2017, whereas
defendants no. 3 and 4 have filed F.A. No. 94/2017. However, the interest
of both the appellants is the same. The defendant no. 1 Sitaram has
alienated the property to appellants of F.A. No. 94/2017.
11. Challenging the Judgment and Decree passed by the Court below, it is
submitted by the Counsel for the Appellants that Malthuram had executed
a Will on 10-7-1987, Ex. P.1 and as per Death Certificate, Ex. D.11,
Malthuram expired on 23-7-1987. It is submitted that the Trial Court
committed material illegality by holding that the Will, Ex. D.1 was not
proved. It is further submitted that Section 14(2) of Hindu Succession Act
permits the grant of limited rights to the Hindu Female and therefore, the
Trial Court should not have held that Govaiyabai had a right to alienate
the property to Smt. Usha Jain, whereas Govaiyabai had a limited right of
maintenance during the life time. It is further submitted that the sale deed
was executed in favour of Smt. Usha Bai by a holder of unregistered
power of attorney. The plaintiff had deliberately overvalued the suit in
order to bring the same within the pecuniary jurisdiction of the Trial
Court.
12. Per contra, the Counsel for the respondents have supported the findings
recorded by the Court below.
13. Heard the learned Counsel for the parties.
14. Section 14 of Hindu Succession Act reads as under :
14. Property of a female Hindu to be her absolute
property.--(1) Any property possessed by a female Hindu,
whether acquired before or after the commencement of this Act,
shall be held by her as full owner thereof and not as a limited
owner.
Explanation.--In this sub-section, "property" includes both
movable and immovable property acquired by a female Hindu
by inheritance or devise, or at a partition, or in lieu of
maintenance or arrears of maintenance, or by gift from any
person, whether a relative or not, before, at or after her marriage,
or by her own skill or exertion, or by purchase or by
prescription, or in any other manner whatsoever, and also any
such property held by her as stridhana immediately before the
commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any
property acquired by way of gift or under a will or any other
instrument or under a decree or order of a civil court or under an
award where the terms of the gift, will or other instrument or the
decree, order or award prescribe a restricted estate in such
property.
15. The Supreme Court in the case of Shivdev Kaur Vs. R.S. Grewal
reported in (2013) 4 SCC 636 has held as under :
14. Thus, in view of the above, the law on the issue can be
summarised to the effect that if a Hindu female has been given
only a "life interest", through will or gift or any other document
referred to in Section 14 of the 1956 Act, the said rights would
not stand crystallised into absolute ownership as interpreting the
provisions to the effect that she would acquire absolute
ownership/title into the property by virtue of the provisions of
Section 14(1) of the 1956 Act, the provisions of Sections 14(2)
and 30 of the 1956 Act would become otiose. Section 14(2)
carves out an exception to the rule provided in sub-section (1)
thereof, which clearly provides that if a property has been
acquired by a Hindu female by a will or gift, giving her only a
"life interest", it would remain the same even after
commencement of the 1956 Act, and such a Hindu female
cannot acquire absolute title.
16. The Supreme Court in the case of Ranvir Dewa Vs. Rashmi Khanna
reported in (2018) 12 SCC1 has held as under :
40. Reading of the aforementioned principle of law laid down in
V. Tulasamma and Sadhu Singh, it is clear that the ambit of
Section 14(2) of the Act must be confined to cases where
property is acquired by a female Hindu for the first time as a
grant without any pre-existing right, under a gift, will,
instrument, decree, order or award, the terms of which prescribe
a "restricted estate" in the property. Where, however, property is
acquired by a Hindu female at a partition or in lieu of right of
maintenance, it is in virtue of a pre-existing right and such an
acquisition would not be within the scope and ambit of Section
14(2) of the Act, even if the instrument, decree, order or award
allotting the property prescribes a "restricted estate" in the
property.
17. Thus, it is clear that by a Will, limited right can be given to a female.
However, the question for consideration is that whether the Appellant has
proved the execution of Will by Govaiyabai or not?
18. The Supreme Court in the case of Surendra Pal v. Saraswati Arora
(Dr),reported in (1974) 2 SCC 600 has held as under :
7. The propounder has to show that the Will was signed by the
testator; that he was at the relevant time in a sound disposing
state of mind, that he understood the nature and effect of the
dispositions, that he put his signature to the testament of his own
free will and that he has signed it in the presence of the two
witnesses who attested it in his presence and in the presence of
each other. Once these elements are established, the onus which
rests on the propounder is discharged. But there may be cases in
which the execution of the Will itself is surrounded by
suspicious circumstances, such as, where the signature is
doubtful, the testator is of feeble mind or is overawed by
powerful minds interested in getting his property, or where in the
light of the relevant circumstances the dispositions appear to be
unnatural, improbable and unfair, or where there are other
reasons for doubting that the dispositions of the Will are not the
result of the testator's free will and mind. In all such cases where
there may be legitimate suspicious circumstances those must be
reviewed and satisfactorily explained before the Will is
accepted. Again in cases where the propounder has himself
taken a prominent part in the execution of the Will which
confers on him substantial benefit that is itself one of the
suspicious circumstances which he must remove by clear and
satisfactory evidence. After all, ultimately it is the conscience of
the court that has to be satisfied, as such the nature and quality
of proof must be commensurate with the need to satisfy that
conscience and remove any suspicion which a reasonable man
may, in the relevant circumstances of the case, entertain. (See H.
Venkatachala lyengar v. B.N. Thimmajamma and Rani Purnima
Devi v. Kumar Khagendra Narayan Dev) In the latter case this
Court, after referring to the principles stated in the former case
emphasised that where there are suspicious circumstances the
onus will be on the propounder to explain them to the
satisfaction of the court before the Will could be accepted as
genuine; and where the caveator alleges undue influence, fraud
and coercion the onus is on him to prove the same. It has been
further pointed out that the suspicious circumstances may be as
to the genuineness of the signature of the testator, the condition
of the testator's mind, the dispositions made in the Will which
may be unnatural or unfair or improbable when considered in the
light of the relevant circumstances. If the caveator does not
discharge the burden which rests upon him in establishing the
circumstances which show that the Will had been obtained by
fraud or undue influence, a probate of the Will must necessarily
be granted if it is established that the testator had full
testamentary capacity and had in fact executed it validly with a
free will and mind. The observations of the Privy Council in
Motibai Hormusjee Kanga v. Jamsetjee Hormusjee Kanga
support the above proposition. Mr Ammer Ali observed at p. 33:
"It is quite clear that the onus of establishing capacity lay on the
petitioner. It is also clear that if the caveator impugned the Will
on the ground that it was obtained by the exercise of undue
influence, excessive persuasion or moral coercion, it lay upon
him to establish that case."
In the light of what has been stated if the various requirements of
a valid Will are established, then as observed by the Privy
Council in Motibai Hormusjee Kanga's case at p. 33:
"A man may act foolishly and even heartlessly; if he acts with
full comprehension of what he is doing the Court will not
interfere with the exercise of his volition."
19. The Supreme Court in the case of Kavita Kanwar v. Pamela Mehta,
reported in (2021) 11 SCC 209 has held as under :
24.8. We need not multiply the references to all and other
decisions cited at the Bar, which essentially proceed on the
aforesaid principles while applying the same in the given set of
facts and circumstances. Suffice would be to point out that in a
recent decision in Shivakumar v. Sharanabasappa, this Court,
after traversing through the relevant decisions, has summarised
the principles governing the adjudicatory process concerning
proof of a will as follows : (SCC pp. 309-10, para 12)
"12. ... 12.1. Ordinarily, a will has to be proved like any other
document; the test to be applied being the usual test of the
satisfaction of the prudent mind. Alike the principles governing
the proof of other documents, in the case of will too, the proof
with mathematical accuracy is not to be insisted upon.
12.2. Since as per Section 63 of the Succession Act, a will is
required to be attested, it cannot 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
capable of giving evidence.
12.3. The unique feature of a will is that it speaks from the death
of the testator and, therefore, the maker thereof is not available
for deposing about the circumstances in which the same was
executed. This introduces an element of solemnity in the
decision of the question as to whether the document propounded
is the last will of the testator. The initial onus, naturally, lies on
the propounder but the same can be taken to have been primarily
discharged on proof of the essential facts which go into the
making of a will.
12.4. The case in which the execution of the will is surrounded
by suspicious circumstances stands on a different footing. The
presence of suspicious circumstances makes the onus heavier on
the propounder and, therefore, in cases where the circumstances
attendant upon the execution of the document give rise to
suspicion, the propounder must remove all legitimate suspicions
before the document can be accepted as the last will of the
testator.
12.5. If a person challenging the will alleges fabrication or
alleges fraud, undue influence, coercion et cetera in regard to the
execution of the will, such pleas have to be proved by him, but
even in the absence of such pleas, the very circumstances
surrounding the execution of the will may give rise to the doubt
or as to whether the will had indeed been executed by the
testator and/or as to whether the testator was acting of his own
free will. In such eventuality, it is again a part of the initial onus
of the propounder to remove all reasonable doubts in the matter.
12.6. A circumstance is "suspicious" when it is not normal or is
'not normally expected in a normal situation or is not expected
of a normal person'. As put by this Court, the suspicious features
must be "real, germane and valid" and not merely the "fantasy of
the doubting mind".
12.7. As to whether any particular feature or a set of features
qualify as "suspicious" would depend on the facts and
circumstances of each case. A shaky or doubtful signature; a
feeble or uncertain mind of the testator; an unfair disposition of
property; an unjust exclusion of the legal heirs and particularly
the dependants; an active or leading part in making of the will by
the beneficiary thereunder et cetera are some of the
circumstances which may give rise to suspicion. The
circumstances abovenoted are only illustrative and by no means
exhaustive because there could be any circumstance or set of
circumstances which may give rise to legitimate suspicion about
the execution of the will. On the other hand, any of the
circumstances qualifying as being suspicious could be
legitimately explained by the propounder. However, such
suspicion or suspicions cannot be removed by mere proof of
sound and disposing state of mind of the testator and his
signature coupled with the proof of attestation.
12.8. The test of satisfaction of the judicial conscience comes
into operation when a document propounded as the will of the
testator is surrounded by suspicious circumstance(s). While
applying such test, the court would address itself to the solemn
questions as to whether the testator had signed the will while
being aware of its contents and after understanding the nature
and effect of the dispositions in the will?
12.9. In the ultimate analysis, where the execution of a will is
shrouded in suspicion, it is a matter essentially of the judicial
conscience of the court and the party which sets up the will has
to offer cogent and convincing explanation of the suspicious
circumstances surrounding the will."
19. The Will dated 10-7-1987, Ex. D.5 was typed on three stamp papers of Rs.
2/- each containing serial no. 1208, 1209 and 1210. The plaintiff filed an
application under Right to Information Act, Ex. P.32C seeking
attested/certified copy of the Stamp Register of Stamp Vendor S.A. Raza.
In reply it was mentioned by the Sub-Registrar, Bhopal, Ex. P.31C that the
record of Shri S.A. Raza of the aforesaid period is not found. Letters
dated 23-8-2010 and 16-7-2010 were also written by the Sub-Registrar to
Shri S.A. Raza, stamp vendor to deposit the record. Thus, it is clear that
the issuance of stamp papers on 9-7-1987 by S.A. Raza, Stamp Vendor is
doubtful.
20. Further more, it is the case of the plaintiff that Malthuram had expired on
10-7-1986 whereas according to the Appellants, Malthuram expired on 23-
7-1987. The so-called Will, Ex. D.5 is dated 10-7-1987. The respondents
have relied upon death certificate, Ex. P.42 to claim that Malthuram
expired on 10-7-1986, whereas the Appellants have relied upon an order
passed by Naib Tahsildar, as well as death certificate Ex. D.12 and
claimed that Malthuram expired on 23-7-1987 i.e., just 13 days after the
execution of so-called Will, Ex. D.5.
21. In the Will Ex. D.5, the testator Malthuram was shown as resident of
village Vishankhedi, Tahsil Huzur Distt. Bhopal, whereas in the death
certificate relied upon by the Appellant, Ex. D.12, the address of the
deceased was mentioned as Arjun ward 10 Quarter, 1403, Gandhi Nagar,
Bhopal. As per the cause title of Appeal, the Appellant Sitaram has been
shown to be the resident of Arjun Ward, 10 Quarters, 1403, Gandhi Nagar,
Bhopal. However, in evidence, the Appellant Sitaram, disclosed his
address as Village Bishankhedi, Tahsil Huzur, Distt. Bhopal. It is not his
case, that the testator after executing the Will, Ex. D.5, had resided in his
house. In the cause of the plaint, the address of the defendant
no.1/Sitaram was shown to be Arjun Ward, 10 Quarters, 1403, Gandhi
Nagar, Bhopal and he was served on the said address. Even in the
Vakalatnama which was filed by Sitaram before the Trial Court, his
address was shown as House No. 1403, 10 Quarters, Arjun Ward, Bhopal.
Even in the Registered address disclosed by Sitaram before the Trial
Court, he had disclosed his address as resident of 10 Quarters, House No.
1403, Arjun Ward No. 1, Gandhi Nagar, Bhopal. It is not the case of
Sitaram (P.W.1) that he is not the resident of Arjun Ward, 10 Quarters,
1403, Gandhi Nagar, Bhopal. As the Appellant Sitaram is the resident of
House No. 1403, Arjun Ward No.1, Gandhi Nagar, Bhopal, therefore, at
the time of preparation of death certificate, it appears that by mistake,
Sitaram gave the address of the deceased Malthuram as Arjun Ward, 10
Quarters, 1403, Gandhi Nagar, Bhopal and the order of issuance of Death
Certificate of Malthuram was also issued by Sunil Verma, Naib Tahsildar,
without verifying the place of death of Malthuram. Whereas in the death
certificate, Ex. P.42-C relied upon by the respondents/plaintiffs, the place
of death of Malthuram is mentioned as village Vishankhedi, Bhopal.
Thus, it is clear that although both the certificates have been issued under
Section 12/17 of Registration of Birth and Death Act, 1965, but in view of
the above mentioned discrepancy, it is clear that the death certificate relied
upon by respondents/plaintiffs is more reliable and thus, it is held that
Malthuram died on 10-7-1986 i.e., much prior to so called Will, Ex. D.5.
22. Thus, when Malthuram had already died on 10-7-1986, then there is no
question of execution of Will, Ex. D.5 by Malthuram in favour of the
Appellant Sitaram on 10-7-1987.
23. Awadhesh Bhargava (D.W.2) has stated that Will was executed by
Malthuram in his presence. Although this witness has identified the
signatures of the attesting witnesses, but he has admitted that he has not
seen the signatures of the attesting witnesses subsequent to the execution
of Will. He further stated in para 7 of his cross examination, that the
stamp papers were purchased by the wife of Malthuram. Whereas as per
the Will, Ex. D.5, the stamp papers were purchased by Malthuram.
24. The opening words of Will, Ex. D.5 starts with a declaration that he is not
keeping well and has no idea of the remaining life, and he generally
remains sick, therefore, he is executing the Will.
25. However, Sitaram (D.W.1) and Awadhesh Bhargava (D.W.2) have not
stated anything about the physical and mental condition of Malthuram.
Sitaram (D.W.1) and Awadhesh Bhargava (D.W.2) have not stated that
who typed the Will, Ex.D.5. There is nothing on record to suggest that
who dictated the said Will, Ex. D.5 and who typed it. It is also not the
case of the Appellants that the Will, Ex. D.5 was dictated by Malthuram.
From the language of Will, Ex. D.5, it appears that it was drafted by a Law
knowing person. Awadhesh Bhargava (D.W.2) has claimed that
Malthuram was an illiterate person. Further more, the Will, Ex. D.5
contains the thumb impression and not the signature of testator. The
contents of typed Will, Ex. D.5, cannot be dictated by an illiterate testator.
Further, the Will, Ex. D.5 was attested by Shri T.R. Sharma, Notary.
However, there is no endorsement on the Will, that the Notary had read
over the contents of the document to its executant and the executant had
understood the same. As per Section 8 of Notaries Act, it is the duty of
the Notary to Verify, Authenticate, certify or attest the execution of
document. The verification of execution of a document, can be done only
after getting satisfied about the voluntary execution of the Will. Nothing
can be deciphered from endorsements made on the Will, Ex. D.5 that the
Notary had ever verified the execution of document, specifically when the
Testator was illiterate and had put his thumb impression.
26. Further more, what was the necessity of getting the Will attested from the
Notary. When the testator was already present in the Court premises, then
the Will could have been got registered by presenting the same before the
Sub-Registrar. But that was not done.
27. Thus, the Appellants have failed to prove the execution of Will by
Malthuram in favour of Sitaram (P.W.1). Once the Will is not proved,
then further alienation of property to the other defendants would
automatically lose its effect. It is well established principle of law that the
owner cannot alienate the title better then what he is having. Once,
Sitaram has failed to prove his title over the land in dispute, then the
subsequent purchasers would not get any right or title in the land.
28. So far as the question of overvaluation of suit is concerned, the
respondents have valued the suit as per the market value of the land in
dispute, as mentioned in para 18 of the plaint. The defendant no.1 had
raised an objection regarding overvaluation which was rejected by the
Trial Court by order dated 24-9-2010. The Counsel for the Appellant
could not point out as to how the valuation of suit on the basis of market
value of the property was not proper or was malicious and arbitrary.
29. So far as the execution of sale deed in favour of Smt. Usha Jain by a
holder of unregistered Power of Attorney is concerned, the Appellants
have not filed any counter claim seeking cancellation of sale deeds
executed by Govaiyabai in favour of Smt. Usha. Further more, the
Counsel for the Appellant could not point out as to how the execution of a
sale deed by a holder of unregistered power of attorney would be bad. The
Supreme Court in the case of Suraj Lamp & Industries (P) Ltd. (2) v.
State of Haryana, reported in (2012) 1 SCC 656 has held as under :
20. A power of attorney is not an instrument of transfer in regard
to any right, title or interest in an immovable property. The
power of attorney is creation of an agency whereby the grantor
authorises the grantee to do the acts specified therein, on behalf
of grantor, which when executed will be binding on the grantor
as if done by him (see Section 1-A and Section 2 of the Powers
of Attorney Act, 1882). It is revocable or terminable at any time
unless it is made irrevocable in a manner known to law. Even an
irrevocable attorney does not have the effect of transferring title
to the grantee.
21. In State of Rajasthan v. Basant Nahata, (2005)12 SCC 77
this Court held: (SCC pp. 90 & 101, paras 13 & 52)
"13. A grant of power of attorney is essentially governed by
Chapter X of the Contract Act. By reason of a deed of power of
attorney, an agent is formally appointed to act for the principal
in one transaction or a series of transactions or to manage the
affairs of the principal generally conferring necessary authority
upon another person. A deed of power of attorney is executed by
the principal in favour of the agent. The agent derives a right to
use his name and all acts, deeds and things done by him and
subject to the limitations contained in the said deed, the same
shall be read as if done by the donor. A power of attorney is, as
is well known, a document of convenience.
* * *
52. Execution of a power of attorney in terms of the provisions
of the Contract Act as also the Powers of Attorney Act is valid.
A power of attorney, we have noticed hereinbefore, is executed
by the donor so as to enable the donee to act on his behalf.
Except in cases where power of attorney is coupled with interest,
it is revocable. The donee in exercise of his power under such
power of attorney only acts in place of the donor subject of
course to the powers granted to him by reason thereof. He
cannot use the power of attorney for his own benefit. He acts in
a fiduciary capacity. Any act of infidelity or breach of trust is a
matter between the donor and the donee."
An attorney-holder may however execute a deed of conveyance
in exercise of the power granted under the power of attorney and
convey title on behalf of the grantor.
30. The Power of Attorney doesnot create any title, interest, etc. in favor of
any body. It merely makes an agency for performance of work on behalf
of the principal. Furthermore, in view of provisions of Powers of Attorney
Act, the registration of power of attorney is not compulsory. However, if
the PoA creates any right or title in the property, then its registration is
compulsory. In the present case, by executing an unregistered power of
attorney with a stipulation that the person to whom the power of attorney
has been given shall have the right to perform all parts on behalf of the
principal, then the registration of the PoA is not necessary.
31. No other argument is advanced by the Appellants.
32. Ex-consequenti, the Judgment and Decree dated 6-12-2016 passed by 11th
Additional District Judge, Bhopal in R.C.S. No. 498-A/2010 is hereby
affirmed.
33. F.A. No. 94/2017 and F.A. No. 139/2017 fail and are hereby dismissed.
34. Decree be drawn accordingly.
(G.S. AHLUWALIA)
JUDGE
HEMANT SARAF
2023.04.29 18:36:59 +05'30'
HS
