Madhya Pradesh High Court
Kashinath vs Dashribai on 9 February, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 9 th OF FEBRUARY, 2024
SECOND APPEAL No. 403 of 2016
BETWEEN:-
KASHINATH S/O SHANKAR MEHRA, AGED ABOUT 48
YE A R S , BARASKAR COLONY MAHAVEER WARD
TIKARI TEH. AND DISTT. BETUL (MADHYA PRADESH)
.....APPELLANT
(BY SHRI JAIDEEP SIRPURKAR - ADVOCATE)
AND
1. DASHRIBAI D/O SHANKAR MEHRA, AGED ABOUT
58 YEARS, PRABHATPATTAN TEH. AND DISTT.
BETUL (MADHYA PRADESH)
2. SMT. BHAGVANTI BAI D/O SHANKAR MEHRA,
AGED ABOUT 45 YEARS, OCCUPATION: NONE
PRABHATPATTAN TEH. AND DISTT. BETUL
(MADHYA PRADESH)
3. SMT. KACHRI W/O SAKARAM PATIL, AGED
ABOUT 58 YEARS, OCCUPATION: NONE
PRABHATPATTAN TEH. AND DISTT. BETUL
(MADHYA PRADESH)
.....RESPONDENTS
(NONE)
Th is appeal coming on for hearing this day, t h e court passed the
following:
ORDER
This Second appeal under Section 100 of Civil Procedure Code (for
brevity, CPC) has been filed by the appellant (hereinafter referred to as
"plaintiff") against the respondents (hereinafter referred to as "defendants")
against the impugned judgment and decree dated 02.02.2016 passed by the
Additional District Judge, Betul District Betul in civil Appeal No.23-A/2015
arising out of the Judgment and decree dated 23.07.2012 passed by Civil Judge,
Class - II, Betul District Betul in Civil suit No. 09-A/2011.
2. It is submitted by learned counsel for the appellant that contents of Will
(Ex. D/2) as also the statements of attesting witnesses and surrounding
circumstances, the courts below were committed an error of law in holding that
Will is found to be proved. The Will is not got proved as per the provisions of
Section 63 of Secession Act and Section 68 of the Evidence Act. The Courts
below also failed to evaluate the oral and evidentiary evidence in its correct
perspective therefore, it is prayed to set aside the judgment and decree of the
courts below and to decree the suit of the plaintiff.
3. Having heard the learned counsel for the appellant and perusal of the
award, it reflects from the evidence on record that the father of the plaintiff was
retired from railway services in the year 1973. Though he has sold the property
through sale deed (Ex.P/2) dated 2 8.05.1973 but the evidence on record
reveals that in 1974 just after the retirement he has got the retiremental benefit in
his favour. He has also in receipt of the pension therefore he was economically
sound and had appropriate means to purchase the suit property. Plaintiff
himself has admitted in his statement that the deceased Shankar has purchased
the suit property by his own income. It is not proved that the plaintiff was in
position to spent money for purchasing suit property because he was minor at
that time and was a school student of 12 years of age and have no means of
income. It is not established by the plaintiff that the suit property, therefore,
purchased out of the receipts from the ancestral property.
4. Will (Ex.D/2) is got proved by the defendants by examining the witness of
that Will. Advocate Naresh Chandra Sahu who in his evidence has categorically
stated that Ex.D/2 was brought by Shankar himself and Shankar has signed
before him other witness Lalit Udhde was his client and at the time of execution
of Ex.D/2 was present and he also signed Ex.D/2 as a witness therefore, the
execution of Will Ex.D/2 has been established by the defendants as per the
provisions of Section 68 of Evidence Act and Section 63 of Succession Act.
5. Learned counsel for the appellant has relied on the judgment in case of
Suraj Bai and Shanti Lal and others 2012 4 MPLJ 238 where it is held in
Para 11-
"11. .......The attestation of the Will is not an empty
formality. It means signing a document for the purpose of
testifying of the signatures of the executant. Since a Will is
required by law to be attested execution has to be proved
in the manner laid down in section and the Evidence Act
which requires that at least one attesting witness has to be
examined for the purpose of proving the execution of such
a document. Therefore, having regards to the provisions of
section 68 of the Evidence Act and section 63 of the
Succession Act, a Will to be valid should be attested by
two or more witnesses in the manner provided therein and
the propounder thereof should examine one attesting
witness to prove the Will. The attesting witness should
speak not only about the testator's signature or affixing his
mark to the Will but also that each of the witnesses had
signed the Will in the presence of the testator."
Similar in the case of Niranjan Umeshchandra Joshi vs. Miridula
Jyoti Rao and Ors. ( 2007 53 AIC 182 it was held-
33. The burden of proof that the will has been validly
executed and is a genuine document is on the propounder.
The propounder is also required to prove that the testator
has signed the will and that he had put his signature out of
his own free will having a sound disposition of mind and
understood the nature and effect thereof. If sufficient
evidence in this behalf is brought on record, the onus of the
propounder may be held to have been discharged. But, the
onus would be on the applicant to remove the suspicion by
leading sufficient and cogent evidence if there exists any. In
the case of proof of will, a signature of a testator alone would
not prove the execution thereof, if his mind may appear to be
very feeble and debilitated. However, if a defence of fraud,
coercion or undue influence is raised, the burden would be on
the caveator. (See Madhukar D. Shende v. Tarabai Aba
Shedage [(2002) 2 SCC 85] and Sridevi v. Jayaraja Shetty
[(2005) 2 SCC 784] .) Subject to above, proof of a will does
not ordinarily differ from that of proving any other
document.There are several circumstances which would have
been held to be described by this Court as suspicious
circumstances:
(i) when a doubt is created in regard to the condition of mind
of the testator despite his signature on the will;
(ii) when the disposition appears to be unnatural or wholly
unfair in the light of the relevant circumstances;
(iii) where propounder himself takes prominent part in the
execution of will which confers on him substantial benefit.
6. Having regard to the law laid down in aforesaid cases, court finds that
the Will (Ex.D/2) has been executed and such execution in light of provisions
of Section 68 of Evidence Act and 63 of Succession Act has been proved by
the defendants. So far as the circumstances surrounding at the time of
execution of the Will is concerned, it is revealed from the evidence on record
that the relation with his father of Shankar was not normal but rather enemical.
There was a dispute between plaintiff and his mother father and they have filed
proceedings u/S 125 of Cr.P.C. against him and in that case order was passed
against the plaintiff for maintenance. It is also come in the evidence that the
mother and father of the plaintiff were used to live with the daughters defendant
No.1 and 2 and they were taken care of their father. Plaintiff was not at all
taking any care of his father. At the time of death of father the expenses was
borne by the defendant No.1 and 2. Advocate Naresh Chandra Sahu was the
advocate of Shankarla and on behalf of Shankarlal, he has filed maintenance
case in the Court, therefore, it was quite natural for the Shankarlal to contact the
advocate Naresh Chandra Sahu for execution and registration of the Will.
Therefore, there is no suspicious circumstances surrounding the execution of
this Will. Will (Ex.D/2) is proved on the anvil of the provisions of Section 63 of
Succession Act and Section 68 of the Evidence Act.
7. Learned Courts below on the basis of evidence on record has rightly
concluded that the plaintiff is utterly failed to prove his case on the cogent and
reliable evidence and he cannot take the benefit of weaknesses of defendant.
Therefore, the findings of the courts below does not warrant any interference.
8. In the light of the aforesaid discussion, no perverse finding was given
neither by the trial Court nor by the first appellate Court and both the Courts
did not commit any illegality. Learned Courts below neither ignored any material
fact nor considered any inadmissible evidence and, thus, the concurrent
findings of the Courts below are not liable to be interfered with.
9. In the result, the impugned judgment and decree dated 02.02.2016 passed
by the Additional District Judge, Betul District Betul in civil Appeal No.23-
A/2015 arising out of the Judgment and decree dated 23.07.2012 passed by
Civil Judge, Class - II, Betul District Betul in Civil suit No. 09-A/2011 are
hereby affirmed.
10. Appeal fails and dismissed in limine.
(RAJENDRA KUMAR VANI)
JUDGE
Akm
