Shanti Lal S/O Hastimal vs Shantilal S/O Footarmal
2021 Latest Caselaw 9257 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil First Appeal No. 212/2002 Shanti Lal S/o Bherulal, Talesara, Resident of Pali, Address 15 Samagio ki Pati, Pali.

----Appellant Versus Shantilal S/o Footarmal, Resident of Pali, Rooie Katla, Pali.

                                                   ----Respondent


For Appellant(s)         :     Mr. Alkesh Agarwal.
For Respondent(s)        :     Mr. Arvind Samdariya.


            HON'BLE MR. JUSTICE ARUN BHANSALI
                                Judgment
27/04/2021

This appeal under Section 96 CPC is directed against

judgment and decree dated 07.08.2002 passed by District Judge

Pali, whereby, the suit filed by the respondent - plaintiff has been

decreed for possession and mesne profit.

The suit was filed by the plaintiff on 11.08.1992 for

possession of the suit property and mesne profit on the ground

that one Hastimal, who was plaintiff's maternal uncle, executed a

will dated 08.11.1976 in his favour, the said Hastimal died on

19.12.1976 and as such all the rights which Hastimal had came

to be vested in him qua the immoveable property and since then

plaintiff is the owner and in possession of the immovable

property.

It was further indicated in the plaint that Late Hastimal had

a sister named Sukniya Bai, who was residing with him being a

widow at a young age and as it was the Will of the testator that

she can reside in the suit property till her death and as such, she

remained in the house after the death of Hastimal and that Smt.

(2 of 23) [CFA-212/2002]

Sukniya Bai died on 12.05.1992.

It is claimed that as plaintiff was the only son of his father,

for helping him in his cloth business he used to reside with his

father and would regularly visit the suit property and that in a

room situated on left side at the entrance of the house, plaintiff's

goods were lying under his lock and key.

Further averments were made in the plaint that about 15-

16 months back Smt. Sukniya Bai sought permission of the

plaintiff to keep the defendant in the house to help her as she

was quite old, which was permitted by the plaintiff; after the

death of Smt. Sukniya Bai, the plaintiff sought the defendant to

vacate the premises, who promised to hand over the possession

of the house but did not vacate and as such the plaintiff revoked

the license of the defendant and gave notice dated 07.07.1992,

which was refused by the defendant.

Based on the said averments the plaintiff sought relief of

possession of the disputed house and claimed mesne profit @

Rs.500/- per month.

The appellant - Defendant contested the suit by filing a

written statement on 18.02.1994. It was claimed that deceased

Hastimal used to treat defendant as his son and he used to live

in the house with Hastimal and after death of Hastimal, he has

been residing in the house.

It was further claimed that even Smt. Sukniya Bai used to

treat him as adopted son of Hastimal and as Sukniya Bai was

living in the house as the heir of deceased Hastimal, no Will was

(3 of 23) [CFA-212/2002]

executed by Hastimal in favour of the plaintiff on 08.11.1976.

It was claimed that perusal of the document reveals that

the same is not a Will, it was not signed by deceased but was a

forged document and as such plaintiff has no right in the suit

property, the possession of the plaintiff was denied. The

allegations about Sukniya Bai keeping the defendant in the house

with the permission of the plaintiff were denied.

It was claimed that possession of the defendant on the

house was as an owner. In the additional pleas it was stated that

Smt. Sukniya Bai remained in possession of the property after

death of Hastimal as an owner and she expressed herself to be

owner of the property to the knowledge of the plaintiff. Smt.

Sukniya Bai executed a Will dated 27.05.1987 in favour of the

defendant and got it registered on 01.06.1987.

It was also claimed that after the death of Hastimal on

19.12.1976 Smt. Sukniya Bai's possession was adverse to

everyone and particularly the plaintiff to his knowledge. The

document dated 08.11.1976 was a gift-deed and was

inadmissible in evidence for want of proper stamp duty and

registration.

It was prayed that the suit be dismissed. The plaintiff filed

replication and reasserted the facts stated in the plaint and

denied the allegations made by the defendant.

Based on the pleadings of the parties, the trial court framed

following six issues: -

"¼1½ D;k oknh "kkafryky ds i{k esa e`rd gLrhey us

(4 of 23) [CFA-212/2002]

fnukWad 8-11-76 dks olh;rukek dj vpy o py laifRr oknh "kkafryky ds i{k esa olh;r dj nsus ls oknxzLr edku dk oknh ekfyd gksdj dkfct gS\ ¼2½ D;k oknh "kkafryky us e`rd lqdfu;kckbZ dh lsok pkdjh djus gsrq izfroknh "kkafryky dks oknxzLr edku esa jgus dh vuqefr nsus ls izfroknh cgSfl;r ykbZlsalh oknxzLr edku ij dkfct gS] ftl ykbZlsal dks oknh us fjoksd dj fn;k gS\ ¼3½ D;k oknh "kkafryky izfroknh "kkafryky ls oknxzLr edku e; edku esa jgus ds feuslizksfQVl fn- 13-5-92 ls [email protected]& :i;s ekgokjk ls izkIr djus dk vf/kdkjh gS\ ¼4½ D;k e`rd gLrhey dks e`R;q ds i"pkr~ e`rd lqdfu;kckbZ dks oknxzLr edku mRrjkf/kdkj esa feyus ls e`rd lqduh;kckbZ ekfyd dh gSfl;r ls edku ij dkfct jgh gS ,oa fnukWad 27-5-87 dks izfroknh "kkafryky ds i{k esa e`rd lqduhckbZ us olh;rukek dj jftLVMZ djk;k ftlls izfroknh oknxzLr edku dk ekfyd gS o edku ij dkfct gS\ ¼5½ D;k e`rd lqdfu;k ckbZ dk e`rd gLrhey rysljk dk fnukWad 19-12-76 dks e`R;q ds i"pkr~ ls oknxzLr edku ij ,MolZ its"ku gksus ls ekfyd cu pqdh Fkh\ ¼6½ vuqrks'k "

On behalf of the plaintiff three witnesses were examined and

three documents were exhibited. On behalf of the defendant four

witnesses were examined and the Will dated 20.05.1987 was

exhibited as Ex.A-1.

After hearing the parties, the trial court by its impugned

judgment came to the conclusion that document (Ex.1) cannot be

termed as gift-deed as there was no demise in present and merely

because word c["khl has been used, the same cannot be termed

as a gift-deed.

It was further held that the Will was duly proved by

producing PW2- Footermal, the scribe and PW3- Jeevraj, who was

attesting witness and minor contradictions in their statements

cannot make the document fraudulent. Consequently, it was held

that Hastimal had legally executed Will dated 08.11.1976 in

(5 of 23) [CFA-212/2002]

relation to the disputed house in favour of the plaintiff.

It was further held that possession of Sukniya Bai was not

adverse and that she had no right to execute the Will in favour of

the defendant.

It was further held that possession of the defendant was that

of a licensee and that his license has been revoked by the plaintiff,

the claim of Rs.500/- per month as mesne profit was found to be

justified as the suit property was a three storey house.

Based on the above findings, the trial court decreed the suit

and directed handing over of vacant possession of the house to

the plaintiff alongwith mesne profit till the date of filing suit and

pendente lite mesne profit.

Alongwith the present appeal the appellant filed application

under Order XLI Rule 27 CPC seeking permission to produce three

documents as additional evidence. Another application under

Order XLI Rule 27 CPC was filed on 29.11.2005 seeking to

produce report of an Handwriting Expert.

It is submitted by learned counsel for the appellant that the

trial court committed grave error in decreeing the suit filed by the

plaintiff. Submissions were made that findings recorded by the

trial court on various pleas are cursory in nature and it has not

dealt with the pleas raised and the evidence, which has come on

record has not been properly appreciated/dealt with, resulting in

the court reaching to a wrong conclusion.

It was submitted that the Will relied on by the plaintiff is

dated 08.11.1976, however, the same was not disclosed till the

year 1992, when for the first time after death of Sukniya Bai in

the notice issued to the defendant, the Will was disclosed for the

(6 of 23) [CFA-212/2002]

first time.

It was submitted that a bare look at the document (Ex.1)

would reveal that the same starts by indicating the document as

c[lhlukek, which means a gift-deed and as the same was

unregistered, the document was inadmissible in evidence.

Further in the entire document, the word c[lhlukek, was

repeatedly indicated, clearly showing the intent of the executant

of the document and as such, the trial court committed grave

error in accepting the document as a Will, which otherwise for lack

of registration was inadmissible in evidence.

Without prejudice to the above submissions, it was

submitted that the document (Ex.1) was surrounded by suspicious

circumstances and that the plaintiff, the proponent of the Will,

failed to remove the suspicious circumstances and as such, the

trial court committed error in finding the Will as proved.

It was submitted that besides the fact that for the period

1976 to 1992, no explaination was given, there were

contradictions in the statements of witnesses pertaining to the

place of execution, the illness of the executant, though it was

claimed that due to age the hands of the executant used to shake,

a bare perusal of the signatures do not indicate that the same are

by a shaking hand, the document bears revenue stamps, which

also creates doubt regarding the purpose of the signatures.

There are contradictions regarding the point of time of

appending of signatures by the so-called attesting witnesses.

Though the plaintiff admitted in his statement that when Sukniya

Bai inducted the defendant in the year 1987, the same was

(7 of 23) [CFA-212/2002]

objected to by the plaintiff, however, why no action was taken by

the plaintiff, has not been explained, which clearly shows absence

of any Will in favour of the plaintiff.

Further in the cross-examination it was indicated that based

on the Will notice was given to Sukniya Bai in the year 1987.

However, she refused to deliver the possession despite that

neither the notice was produced, nor any action was taken against

Sukniya Bai, which makes the Will wholly suspicious. It was

emphasized that though claim was made that the goods of the

plaintiff were lying in the room in the house. However, neither any

action was taken, nor any relief was claimed qua the said goods,

which also clearly proves that the plea of possession was baseless.

Submissions have also made that the suit was barred by

limitation, as the same should have been filed within time when

Sukniya Bai refused to deliver the possession of the suit property.

On the application filed under Order XLI Rule 27 CPC, it was

submitted that the appellant could not lay hands on the

documents during pendency of the suit. However, once the suit

was decreed, he was informed by a transferee from deceased

Hastimal regarding transfer of another property by him in the year

1968, which document bears his signatures and a comparison of

the signatures on the said sale-deed alongwith Exhibit 1 clearly

proves that the signatures on document (Ex.1) were not the

signatures of deceased Hastimal.

Further it is claimed that mother of Hastimal died on

20.06.1972, which is reflected from the death certificate produced

alongwith a certificate issued by Hindu Sewa Mandal and as such,

the property in question did not vest only in Hastimal as

(8 of 23) [CFA-212/2002]

admittedly the property was that of his father - Nathmal and as

the documents are relevant for deciding the controversy in issue,

the same be taken on record.

Pertaining to the second application filed under Order XLI

Rule 27 CPC, it was submitted that as the respondent raised

objections about lack of expert evidence pertaining to the

signatures on the Will and the sale-deed sought to be produced,

the appellant has obtained expert opinion and as such the same

be also taken on record.

It was prayed that the judgment and decree passed by the

trial court deserves to be quashed and set-aside.

Reliance was placed on B. Venkatamni v. C.J. Ayodhya Ram

Singh & Ors.: 2006 AIR SCW 6115, in the matter of S.

Krishnaswami & etc.: AIR 1991 MADRAS 214, Union of India v.

K.V. Lakshman & Ors.: AIR 2016 SC 3139, Satyavati Ramprasad

Ruia v. New India Assurance Co. Ltd.: AIR 2017 SC 2596, Adil

Jamshed Frenchman (D) by Lrs. v. Sardar Dastur School Trust &

Ors.: JT 2005 (2) SC 332, Wadi v. Amilal & Ors.: JT 2006 (6) SC

16, H. Venkatachala Iyengar v. B.N. Timmajamma & Ors.: AIR

1959 SC 443(1), Rani Purnima Debi & Anr. v. Kumar Khagendra

Narayan Deb & Anr.:AIR 1962 SC 567, Bharpur Singh & Ors. v.

Shamsher Singh: AIR 2009 SC 1766.

Learned counsel for the respondent vehemently opposed the

submissions. It was submitted that the applications filed under

Order XLI Rule 27 deserve to be rejected, inasmuch as, the

document - Sale deed which is sought to be produced is not an

admitted document so as to compare the signatures thereon with

the Will. There is a gap of eight years between execution of the

(9 of 23) [CFA-212/2002]

purported sale-deed and execution of the Will. The appellant has

failed to show any kind of due diligence. The report of the

handwritting expert sought to be produced is of absolutely no

value and that the appellant was seeking to fill the lacuna left in

the evidence before the trial court, which is not permissible.

It was submitted that the production of death certificate of

mother of deceased Hastimal, clearly shows that to what extent

the appellant was prepared to go, inasmuch as, the certificate has

been got issued on 21.08.2002 based on another certificate dated

18.08.2002, after the suit was decreed by the trial court on

07.08.2002, which are apparently made-up documents and as

such, the applications deserve to be dismissed.

It was submitted that the claim of the appellant that the suit

was barred by limitation has no substance, inasmuch as, Sukniya

Bai was given right to live in the house under the Will, at no stage

she claimed her title adverse to the plaintiff and merely because

after death of Hastimal, Sukniya Bai remained in long possession,

her possession cannot be termed as adverse.

It was emphasized that the plea raised by the appellant

claiming the document (Ex.1) as gift-deed and, therefore,

inadmissible has no substance, inasmuch as, the use of words in

the document are not relevant. It is only the contents and terms

and conditions of the document which are relevant for determining

the nature of the document.

With reference to the document (Ex.1) it was submitted that

a bare look at the document would indicate that executant has not

made the demise in present and clearly indicated that the

property would vest in plaintiff after death of the executant and as

(10 of 23) [CFA-212/2002]

such, the document in question was clearly a Will only and

submissions made in this regard by the appellant are baseless.

It was submitted that the appellant/defendant, only with a

view to create some doubt, has claimed that the Will was

surrounded by suspicious circumstances, whereas none exists.

The plaintiff had produced the surviving attesting witness as

another had died and the scribe, who in one voice have indicated

that the Will was executed by Hastimal and that the same was

written/attested on his request.

Learned counsel based on the evidence made submissions to

dispel the submissions made by learned counsel for the appellant

regarding the suspicious circumstances pertaining to place of

execution, illness, signatures in presence of the attesting

witnesses and submitted that the Will was executed way back in

the year 1976 and the statements were recorded in the year 1998

i.e. after passage of over 22 years and, therefore, minor

contradictions due to time lapse were bound to be there and, as

such, based on minor contradictions the validity of the Will cannot

be questioned and from the material on record it cannot be said

that the same was surrounded by suspicious circumstances.

It was submitted that the claim made by the defendant

regarding his living with deceased - Hastimal as his son is belied

by bare fact that he did not even know that where was the shop of

Hastimal, where he was doing his business. Further, he also

claimed that Hastimal in his lifetime used to indicate that Sukniya

Bai would be his only legal representative, which is contradictory

to the claim of being a son.

It was submitted that the defendant was in possession of the

(11 of 23) [CFA-212/2002]

property without any right, title or interest and as such, the

judgment impugned does not call for any interference.

Reliance was placed on Mathai Samuel & Ors. v. Eapen

Eapen (Dead) by Lrs. & Ors.: AIR 2013 SC 532, Bahadur Singh v.

Pooran Singh & Ors.: 2012(2) RLW 1092 (Raj.), Dayanandi v.

Rukma D. Suvarna & Ors.: 2013 DNJ (SC) 62, P. Subramania &

Ors. v. Ramchandran & Ors.: AIR 1996 KERALA 64, State Bank of

India & Anr. v. Mula Sahakari Sakhar Karkhana Ltd.: 2006(2)

W.L.C. (SC) Civil 230, Chatti Konati Rao & Ors. v. Palle Venkata

Subba Rao: 2011(1) W.L.C. (SC) Civil 176, Ishwari Prasad Misra

v. Mohammad Isa: AIR 1963 SC 1728(1), Abdul Gani & Anr. v.

Devi Lal & Anr.: AIR 1960 RAJASTHAN 77, Mustafa v.

Smt.Khursida: 2005(2) DNJ (Raj.) 579, Karnataka Board of Wakf

v. Government of India: 2004 DNJ (SC) 920.

I have considered the submissions made by learned counsel

for the parties and have perused the record of the case as well as

the record of the trial court.

The foundational issue in the present case pertains to the

nature of the document in question, which document (Ex.1) is the

sheet anchor of the plaintiff's case, who claims right in the suit

property based on the said document.

The document in question starts as under: -

" bdjkj&ukeksa ,d fy[kr c["kh"k&ukek jks dj nksuksa "kk gLrhey uFkeyth rysljk Bh- lexks;k jh ikVh rysljk ¼tSu½ okl] ikyh rglhy ikyh fy[k nhuks Hkk.kst "kkfUryky QqVjeyth ukxkSjh eq- xqUnkst gky ikyh jsos rglhy ikyh okyk us ---------"

Besides the above opening sentence, the document at two

more places use the word c["khl. However, the document also

(12 of 23) [CFA-212/2002]

indicates the fact that the executant was in advanced age and that

after his death the entire property would vest in Shantilal. Though

the word c[lhlukek/c["khl, which is an urdu word, literally means

gift-deed/ gift or prize, the mere use of the word c[lhlukek/c["khl in the document alone cannot be a determining factor pertaining

to the nature of the document. The document has to be read as a

whole. The document in question, after the opening sentence

refers to the advanced age of the executant, expects the

beneficiary to take care of the executant during his lifetime, has

been required to undertake expenses qua executant's sisters and

niece and also indicates that after death of the executant ( eus ikap

fnu iqqaxks js ckn) the entire property would vest in Shantilal and that the property would belong to him.

There is further reference to the same phrase ( eus ikap fnu

iqqaxks js ckn) requiring Sukniya Bai to handover the gold, silver and

utensils to Shantilal.

On the above recitals a legal declaration of the intention can

certainly be spelled out that the executant wanted that his

property be dealt with in a particular manner after his death.

It is settled that Will is a mere declaration of intention so

long as the testator is alive, which can be revoked or varied, while

a gift is transfer of property, which is voluntarily, gratuitous and

confers immediate rights on the beneficiary/donee.

There is nothing in the document (Ex.1) to indicate any

immediate demise of the property. Hon'ble Supreme Court in the

case of Mathai Samuel (supra), while dealing with a similar issue,

inter-alia laid down as under:-

(13 of 23) [CFA-212/2002]

"12. Will is an instrument whereunder a person makes a disposition of his properties to take effect after his death and which is in its own nature ambulatory and revocable during his lifetime. It has three essentials:

1) It must be a legal declaration of the testator's intention;

2) That declaration must be with respect to his property; and

3) The desire of the testator that the said declaration should be effectuated after his death.

13. The essential quality of a testamentary disposition is ambulatoriness of revocability during the executant's death of its vigour and effect.

14. Section 2(h) of the Succession Act, 1925 says:

"2.(h) 'will' means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death."

In the instant case, the executants were Indian Christians, the rules of law and the principles of construction laid down in the Succession Act, 1925 govern the interpretation of will. In the interpretation of will in India, regard must be had to the rules of law and construction contained in Part VI of the Succession Act, 1925 and not the rules of the interpretation of statutes.

15. Gift/settlement is the transfer of existing property made voluntarily and without consideration by one person called the donor to another called the donee and accepted by or on behalf of the donee. Gift takes effect by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. Section 122 of the Transfer of Property Act defines the "gift" as a voluntary transfer of property in consideration of the natural love and affection to a living person.

16. We may point out that in the case of a will, the crucial circumstance is the existence of a provision disposing of or distributing the property of the testator to take effect on his death. On the other hand, in case of a gift, the provision becomes operative immediately and a transfer in praesenti is intended and comes into effect. A will is, therefore, revocable because no interest is intended to pass during the lifetime of the owner of the property. In the case of gift, it comes into operation immediately. The nomenclature given by the parties to the transaction in question, as we have already indicated, is not decisive. A will need not be necessarily registered. The mere registration of "will" will not render the document a settlement. In other words, the real and the only reliable test for the purpose of finding out whether the document constitutes a will or a gift is to find out as to what exactly is the disposition which the document has made, whether it has transferred any interest in praesenti in favour of the settlees or it intended to transfer interest in favour of the settlees only on the death of the settlors."

(14 of 23) [CFA-212/2002]

In view of the law laid down by Hon'ble Supreme Court and

from the analysis of the document in question, hereinbefore, it is

apparent that the document is only a Will and the same cannot be

termed as a gift despite use of the term c[lhlukek/c["khl at more than one place in the document.

In view thereof, the determination made by the trial court

with regard to nature of the document and its admissibility cannot

be faulted.

It would be appropriate at this stage, to deal with the

applications filed by the appellant under Order XLI Rule 27 CPC.

As noticed, hereinbefore, the appellant has sought to produce a

sale-deed said to have been executed by Hastimal in the year

1968 with an intention to show his signatures so as to contrast the

same as appearing on the Will (Ex.1).

Further two death certificates pertain to mother of Hastimal,

issued after the judgment impugned was delivered by the trial

court, to show that as mother of Hastimal was alive till the year

1976, the property in question, which originally belonged to

Nathmal - Father of Hastimal, Hastimal alone had no right in the

suit property.

Further in the second application filed under Order XLI Rule

27 CPC a report of the Handwriting Expert has been produced to

indicate that the signatures on the sale-deed of the year 1968 and

the Will (Ex.1), do not match.

The indication made in the application that the appellant

become aware of the execution of sale-deed in the year 1968 in

relation to a shop by Hastimal after the judgment impugned was

(15 of 23) [CFA-212/2002]

passed, apparently cannot be believed, inasmuch as, the suit was

filed in the year 1992 and the same was decided in the year 2002

and though during ten years, the informant did not inform the

appellant about the document in question, however, as soon as

the judgment was delivered on 07.08.2002, the appellant claims

that the informant informed him about the existence of the

document sought to be produced, inasmuch as the certified copy

of the document produced is dated 27.08.2002 i.e. the same has

been issued within 20 days of passing of the judgment and

thereafter the present appeal has been filed alongwith the

application.

The very fact that the two other documents which are the

death certificate of mother of Hastimal have been produced

apparently only with a view to somehow frustrate the claim of the

plaintiff, indicates that the appellant obtained certificate dated

18.08.2002 from Hindu Sewa Mandal and on 21.08.2002 got the

fact of death of Mooli Bai registered with the Municipal Council,

Pali with date of death as 20.06.1972 i.e. after 30 years. However,

in the application the appellant has not cared to indicate that the

said document pertaining to death of Mooli Bai with date of death

as 20.06.1972 were procured by him/got registered by him, which

clearly shows that the attempt is not bona fide. Further the

defendant in his statement had clearly indicated that the property

in question belonged to Hastimal alone.

Another document pertains to the so-called expert opinion

based on the sale-deed as well as the Will also is of no

consequence and/or relevance, inasmuch as, neither of the two

documents which formed the basis for comparison by the

(16 of 23) [CFA-212/2002]

Handwriting Expert were before him, in original.

In view of the above, as the various judgments cited by

learned counsel for the appellant and learned counsel for the

respondent, deal with the general principles in relation to

applications under Order XLI Rule 27 CPC and go on to deal with

the circumstances existing in the respective cases, as such there

is no need to burden the present judgment by dealing with the

said judgments.

In view of the above, as the appellant has failed to make out

a case for production of additional evidence, for the reasons

discussed hereinbefore, pertaining to the nature of documents as

well as the plea raised regarding due diligence on part of the

appellant, both the applications are rejected.

Coming to the issue pertaining to the validity of the Will, it is

well settled that the onus to prove a Will is on the propounder and

the same is required to be proved with reference to provisions of

Section 67 & 68 of the Evidence Act.

A perusal of the document (Ex.1) reveals that the testator

besides bequeathing the suit property and other goods to the

plaintiff, has provided for certain other obligations also requiring

the beneficiary to undertake certain expenses for executant's

sisters and niece. The Will thereafter goes on to indicate that the

goods having handed over to Sukniya Bai would be handed over

to the plaintiff and that she would reside in the house during her

lifetime, it was required of the beneficiary to look after her.

The testator further left it to Sukniya Bai to reside with the

plaintiff or to reside in a room of the property. The document

bears signatures of the testator and two attesting witnesses-

(17 of 23) [CFA-212/2002]

Santok Chand and Jeevraj. Plaintiff as PW1, indicated the

execution of the Will and stated that the same was executed at

Rui Katla at his shop, which was also their residence, the Will was

executed at the shop and was dictated by Hastimal point-wise and

the same was scribed by plaintiff's father. The time was indicated

at between 4:00 to 5:00 PM. It was indicated that Hastimalji

signed the Will, whereafter, the two attesting witnesses Santok

Chand and Jeevraj were called in the room and at the request of

Hastimal Ji, they signed as attesting witnesses. First Santok

Chand signed it and thereafter Jeevraj signed it. As to why the Will

was not scribed by Hastimal Ji? It was indicated that his hand on

account of old age used to shake, therefore, he was unable to

write and, therefore, got it written by plaintiff's father.

The plaintiff also claimed that based on the Will in 1987

notice was given to Sukniya Bai, however, she refused to hand

over the property indicated in the Will, though it was claimed that

he had a copy of the notice, however, the same was not produced.

It was denied that the signatures on Ex.1 were not that of

Hastimal Ji.

PW2 Footarmal- father of the plaintiff and scribe of the Will

stated that he has indicated in the Will, as was told by Hastimal Ji,

the document was executed at his residence, which was above his

shop at around 3:00-4:00PM. One of the attesting witness -

Santok Chand has died. Santok Chand and Jeevraj were sitting at

the shop. Hastimal Ji signed the document after the same was

written, denied that the attesting witnesses were called after the

document was signed.

PW3- Jeevraj, surviving attesting witness admitted his

(18 of 23) [CFA-212/2002]

signatures on Ex.1, indicated that Hastimalji signed the document

after the same was written by Footarmal as asked by Hastimalji,

Santok Chand, the other attesting witness signed before him. It

was indicated that Footarmal executed the document at the shop

of Champalal situated at Rui Katla. At the time of execution of the

document, he alongwith Footarmal, Santok Chand, Shantilal &

Footarmal's family were present. The witness indicated that he

was sitting at Champalal's Shop and above the shop Footarmal

used to reside and that Hastimal & Footarmal called him and

Santok Chand was already sitting there.

Learned counsel for the appellant attempted to make

submissions that there are material contradictions regarding event

of execution of the Will, inasmuch as, while PW1- Shantilal and

PW2- Footarmal have indicated the document was executed at

their residence above the shop, whereas, the attesting witness-

Jeevraj- PW3, has indicated that the document was executed at

the shop of Champalal situated at Rui Katla and as such, the

execution of the document at the instance of Hastimal is

suspicious.

The trial court has dealt with the said aspect exhaustively

and has accepted the submissions on behalf of the plaintiff that as

the Footarmal and Champalal are partners in the shop, the same

led to the attesting witness indicating the shop as that of

Champalal.

The said aspect regarding the witness PW3 referring to the

same shop i.e. of Footarmal is fortified from the assertion made by

the said witness that Footarmal used to reside above the shop,

which aspect was also indicated by PW1 and PW2 as such, the so

(19 of 23) [CFA-212/2002]

called contradiction based on the location where the Will was

executed apparently has no substance.

Beside above, it has to be noticed that while the Will was

executed in the year 1976, the statements of - PW2 & PW3 were

recorded on 29.04.1999 i.e. after over 23 years of execution of

the document and both the witnesses PW2 & PW3 were aged 75

years at the time of recording of their statements and as such,

minor contradictions, if at all the same can be termed as

contradictions, which are not material, are obvious.

In the case of Bahadur Singh (supra), a Division Bench of

this Court, even in a case where the difference between execution

of the Will and the date when the evidence was recorded was

about 8-9 years, held that there were bound to be certain minor

discrepancies in the evidence which should not be given undue

weightage.

In view of the overall evidence produced by the plaintiff in

the present case, as already noticed hereinbefore, the difference

between the date when the Will was executed and the evidence

recorded is over 23 years and as such, the so-called discrepancy

alleged regarding the place and the sequence in which the

document was executed, cannot be given much credence.

Regarding the submissions made that it was claimed by the

plaintiff in his statement that Hastimalji's hand used to shake,

which indicates that he was not well, however, in the entire cross-

examination, not a word was put to any of the witness pertaining

to the valid disposing state of mind of the deceased Hastimal and

as such, undue importance cannot be put on account of shaking of

the hand because of the age. It cannot be said that the plaintiff

(20 of 23) [CFA-212/2002]

accepted that the deceased was not well.

It would be relevant to consider that, in case, the document

was not as per the wishes of Hastimal and was a fraudulent

document, there appears no reason for the plaintiff and his father

to indicate in the document c[lhlukek instead of a Will and then

to indicate several bequeaths in favour of sisters of the deceased.

The DW1 - appellant, though claimed that he was acquainted

with the writing and signatures of Hastimal, as he used to reside

with him and was always with him, and also claimed that since

before the death of Hastimal, he was living with him and

continued to live in the house till the suit was filed, could not

produce a single document indicating the signature of deceased

Hastimal, which could have brought on record material in support

of the plea, that the document Ex.1 did not bear the signatures of

deceased- Hastimal. Except for a bald denial regarding the

signatures of Hastimal, nothing was placed on record to contradict

that the signatures were not that of deceased - Hastimal.

So far as alleged non-disclosure of the Will from 1976-1992

is concerned. Apparently there was no occassion for putting the

Will to use, inasmuch as, Sukniya Bai was given right of residence

in the suit property, as such during her life time even otherwise

the plaintiff could not have sought possession of the property.

However, it has been stated by the plaintiff that in 1987,

when defendant was kept in the house, objection based on the

Will was raised, which probably was the occassion to assert the

right, when it is claimed, the same was asserted.

In view thereof, as the plaintiff has produced the original

(21 of 23) [CFA-212/2002]

Will, the scribe, one of the attesting witnesses, as the other

attesting witness had died, and that nothing could be brought on

record by their cross-examination so as to substantiate the so-

called suspicious circumstances, the finding recorded by the trial

court on the issue regarding the validity of the Will, does not call

for any interference.

Coming to the plea raised by the appellant regarding Sukniya

Bai becoming owner of the property by adverse possession, it

would be interesting to refer to the Will (Ex.1A) dated 20.05.1987,

said to have been executed by Sukniya Bai. In the Will, the said

Sukniya Bai had indicated the house in question as ' esjs ihgj dk

edku' and went on to indicate that after death of her husband, she started living with her brother - Hastimal and that it was wish of

Hastimal that after his death she (Sukniya Bai) would be owner of

the house.

Throughout the Will, which was executed in the year 1987

i.e. after 11 years of death of Hastimal, the suit property has been

described as 'esjs ihgj dk edku', which clearly shows that even in

the year 1987 i.e. after 11 years of death of Hastimal, Sukniya Bai

continued to indicate the house as that of her ' ihgj' i.e her

parental house and did not claim that the house belonged to her/it

was her house.

Even as per the Will, she indicated that it was the wish of

deceased - Hastimal that after his death, she should be the owner

of the house, which necessarily means that the house belonged to

Hastimal. However, there is no material relied on and/or available,

whereby, Hastimal had bequeathed the property to Sukniya Bai

(22 of 23) [CFA-212/2002]

and as such, by mere wish, Sukniya Bai could not get ownership

of the property.

Further even in the Will the Sukniya Bai did not claim that as

she had remained in possession of the property for a long time

based on such possession, she had become owner and as such,

the claim sought to be made by the defendant on part of Sukniya

Bai of adverse possession cannot be countenanced under any

principle of law.

The Will (Ex.1) clearly indicated that Sukniya Bai would have

right of residence in the house during her lifetime and as such,

the status of Smt. Sukniya Bai after death of Hastimal, was that of

a beneficiary under the Will/licensee only.

Further, the license by its very nature is not heritable and as

such, on death of Sukniya Bai the right of residence, which she

had in the property under the Will, came to an end.

The defendant has claimed right to remain in possession of

the property only on the basis that Sukniya Bai was owner of the

property and she had executed Will in his favour.

As it is an admitted case that the property belonged to

Hastimal which fact has been admitted by DW1 in his statement

and is clearly reflected in Will (Ex.A1) said to have been executed

by Sukniya Bai and Will executed by Hastimal (Ex.1) has been

found proved, the defendant cannot claim any right to continue to

remain in possession of the property in question.

Further submissions made regarding the suit being barred by

limitation also, apparently have no substance, inasmuch as, the

claim of adverse possession already stands negative and the only

material which has come on record based on the statement of

(23 of 23) [CFA-212/2002]

PW1 pertains to a so-called denial by Sukniya Bai in the year 1987

and as such, as the suit has been filed in the year 1992, the same

is well within limitation prescribed under Article 65 of the

Limitation Act, which is 12 years for possession of immovable

property or any interest therein based on title and the time from

which period begins to run is when the possession of the

defendant becomes adverse to the plaintiff.

It was nowhere the case of the defendant and/or the point of

time has not been asserted as to from which point of time the

possession become adverse and/or the limitation to claim

possession started to run.

Further the very fact that a plea of adverse possession is

sought to be raised that also of Sukniya Bai, also clearly results in

an admission on part of the defendant regarding the title of the

plaintiff, as the plea of adverse possession can only be raised

against the true owner.

In view of the above discussion, the findings recorded by the

trial court on various issues are based on the evidence available

on record and the consideration cannot be termed as perverse,

the same, therefore, do not call for any interference.

No other submission was made, except for what has been

noticed hereinbefore.

In view of the above discussion, the appeal has no

substance, the same is, therefore, dismissed.

No order as to costs.

(ARUN BHANSALI),J

pradeep/-

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