Rajasthan High Court - Jodhpur

Abhay Kumar vs Dhanraj on 3 January, 2025

Author: Birendra Kumar

Bench: Birendra Kumar

[2024:RJ-JD:53174]

       HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                        JODHPUR
                     S.B. Civil First Appeal No. 37/2011

Abhay Kumar S/o Shikhar Chandra, aged about 23 years, R/o
Nai Lain Indra Chowk, Ganga Shahar, Bikaner.
                                                                      ----Appellant
                                       Versus
Dhanraj S/o Shri Surendra Kumar, R/o Nai Lain Indra Chowk,
Ganga Shahar, Bikaner.
                                                                    ----Respondent


For Appellant(s)             :     Mr. Abhay Kumar appellant present in
                                   person.
For Respondent(s)            :     Mr. Sanjeet Purohit.
                                   Mr. Rahul Vyas.


        HON'BLE MR. JUSTICE BIRENDRA KUMAR

Judgment Reserved on :- 28/11/2024 Pronounced on :- 03/01/2025

1. The sole plaintiff/respondent Dhanraj brought Civil Suit No.

201/2005 seeking partition of 1/2 share in the suit property as

well as a decree of permanent injunction against the

defendant/appellant restraining the defendant from changing the

physical feature of the suit property or alienating the same in any

way till partition by meets and bounds.

2. The suit property is a house situated at Indra Chowk, Nai

Lain, Ganga Shahar in the District of Bikaner, details whereof is

mentioned in the plaint. By the impugned judgment and decree

dated 20.08.2009, the Learned Fast Track Court No. 3, Bikaner

decreed the suit.

3. It is not controverted that great grand father of the plaintiff

and sole defendant namely Late Sardarmal Sethiya had purchased

the suit property through sale deed dated 19.12.1929. In the year

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1950, Sardarmal Sethiya died leaving behind two sons Ramlal and

Kesari Chand. On 23.08.1975, Ram Lal and Kesari Chand divided

their share in the suit property whereunder northern portion was

allotted to Ram Lal, the document of division was registered on

8.9.1975 (Ex.1). Ram Lal had two sons Surendra Kumar and

Shikhar Chandra, plaintiff Dhanraj is son of Surendra Kumar and

defendant/appellant Abhay Kumar is son of Shikhar Chandra.

4. The case of the plaintiff is that Ram Lal the grand father of

the plaintiff and the denfedant had executed a Will dated

30.6.1992, which was registered on 3.7.1992. As per Will, suit

property was bequeathed to Bala Devi W/o Ram Lal till her life,

and if, Bala Devi does not dispose of the said property during her

lifetime then to the plaintiff and the defendant equally. Bala Devi

died on 16.1.1998 without making against disposition of property.

Hence, the plaintiff and the defendant equally got 1/2 share in the

suit property.

5. The case of the defendant / appellant is that in fact Ram Lal

had not executed any Will on 30.6.1992, if any such document is

there, it is a forged document. Even if, Ram Lal had executed

ignorantly any Will that was revoked by the subsequent Will dated

15.06.2002. As per the subsequent Will of Ram Lal, entire share of

Ram Lal in the house at Bikaner was given to the

defendant/appellant and the rented premise in the City of the

Kolkata was given to the plaintiff/respondent. The defendant

further asserted that possession of the plaintiff in suit house was

permissive one initially and later on became unlawful after Will of

Late Ram Lal dated 15.06.2002.

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6.    The     Learned     trial     Judge       framed       following   issues   for

adjudication:-

(i) Whether the suit property mentioned in para 1 of the

plaint was bequeathed by Late Ram Lal Ji Sethiya

through Will dated 30.06.1992 registered on

03.07.1992 whereunder the plaintiff got 1/2 undivided

share?

(ii) Whether Will dated 30.6.1992 is a forged and showyd

document?

(iii) Whether Will dated 15.6.2002 was executed by Ram

Lal and after death of Ram Lal, the defendant got the

suit property as absolute owner thereof?

All the issues were of conjointly decided and it was held that

Will of the year 1992 was a valid Will and was duly proved.

Unregistered Will of 2002 was not valid as such 1 st Will stood as it

is.

7. Mr. Abhay Kumar, the appellant appearing in person contends

that the plaintiff never brought the registered Will of 1992 before

death of Ram Lal nor the defendant had knowledge about the said

Will. Though, in the State of Rajasthan probate of the Will is not

requirement of law to give effect to the Will of testator but the Will

requires to be proved as per the law which has not been done in

the present case. Moreover, the law is clear that the testator can

revoked the Will in other mode prescribed under the law including

by execution of a subsequent Will. In the case on hand, there is

subsequent Will of Ram Lal vide Ex.A-1, therefore, Will of the year

1992, even if, it was there was revoked by the testator, therefore,

[2024:RJ-JD:53174] (4 of 10) [CFA-37/2011]

the plaintiff suit was fit to be dismissed. The learned trial Judge

has conjointly decided all the three issues without considering the

facts and law correctly.

8. On the other hand, Mr. Sanjeet Purhoit assisted by Mr. Rahul

Vyas learned counsel for the respondent contends that the Will of

the year 1992 (Ex.2) was a registered Will. The father of the

plaintiff as well as the defendant where appointed as executor of

the Will that is why the defendant's father though examined as

DW.2 has evasively expressed ignorance about the earlier Will.

Learned counsel submits that the subsequent Will vide Ex.A-1

would itself show that the Will was not executed voluntarily and in

sound disposing state of mind by Late Ram Lal, rather, it was

created by the collusive act of the defendant's witnesses.

9. The point for consideration is whether the Will of the year

1992 vide Ex.2 was a valid and genuine Will of Late Ram Lal.

Whether Ram Lal really revoked the earlier Will of the year 1992

by the subsequent Will dated 15.06.2002 vide Ex.A-1.

10. PW.1 Dhanraj has categorically supported what is pleaded in

the plaint and has denied that Ram Lal had any property at

Kolkata, rather, the business of Kolkata is exclusive and self

business of the plaintiff. PW.2 Gulab Chand is son in law of Ram

Lal, he has proved the due execution of the Will of the year 1992.

The witness specifically denied signature of Ram Lal on the second

Will of the year 2002. According to PW.2, his father in law Late

Ram Lal had executed a Will in respect of the house at Bikaner,

whereunder initially the property was given to Bala Devi W/o Ram

Lal and after her death, to two grand sons, who are plaintiff and

defendant herein. Late Ram Lal called this witness to his house

[2024:RJ-JD:53174] (5 of 10) [CFA-37/2011]

and reported that he is going to execute a Will and asked PW.2

Gulab Chand and PW.3 Pradeep Kumar Sharma to attest the Will.

PW.2 further deposed that Ram Lal Ji put his signature in presence

of this witness and witness Pradeep Kumar Sharma as well as Mr.

Poonam Chand Khatol, Advocate, after Poonam Chand Khatol read

over and explained the Will to him. The witnesses also signed, in

presence of the testator and the Advocate Poonam Chand Khatol,

on each of the two pages of the Will on the request of the testator.

On 3.7.1992, the Will was taken for registration where also Ram

lal Ji and these witnesses as well as Advocate Poonam Chand

signed on the register of the Sub Registrar.

11. DW.2 is wholly reliable witness as he has stood the test of

cross-examination. The witness was close relative and having

interest in the property bequeathed. If the Will would not have

been executed, the wife of this witness was also a sharer in the

property of Late Ram Lal Ji, therefore, trustworthiness of this

witness cannot be doubted. Another attesting witness PW.3

Pradeep Kumar Sharma filed affidavit in support of due execution

and attestation of the Will, however, he did not appear for cross-

examination, therefore, his evidence was not considered by the

trial Judge. PW.2 is specific that at the time of execution of Will,

Ram Lal Ji was mentally and physically fit and was aware of the

contents of the Will. Moreover, these facts cannot be challenged

by the defendants for the reason that the defendant has also

pleaded a case of subsequent Will by Late Ram Lal Ji, therefore,

the defendant cannot deny the sound disposing mind of Ram Lal Ji

at the time of execution of Will of 1992. It is case of the plaintiff

that original Will was with the defendant as defendant was also a

[2024:RJ-JD:53174] (6 of 10) [CFA-37/2011]

beneficiary and his father was executor of the Will but taking

advantage of the absence of the plaintiff they develop greed and

suppressed the Original Will, thereafter, the plaintiff obtained

certified copy of the registered Will and produced the same before

the Court.

12. Therefore, it is held that the first Will of Late Ram Lal dated

30.6.1992 was a duly executed Will and has validly been proved

as per requirement of law. Therefore, this point is decided against

the appellant.

13. Section 63(c) of the Indian Succession Act, 1925 requires a

Will to be attested by two or more witnesses, each of whom has

seen the testator sign or affix his mark to the Will or has seen

some other person sign the Will, in the presence and by the

direction of the testator, or has received from the testator a

personal acknowledge of his signature or mark, or the signature

of such other person; and each of the witnesses shall sign the Will

in the presence of the testator, but it shall not be necessary that

more than one witness be present at the same time, and no

particular form of attestation shall be necessary.

14. Section 68 of the Evidence Act deals with proof of execution

of document required by law to be attested, the said provision

reads as follows:-

"If a document is required by law to be attested, it shall not be used as evidence as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject

to the process of the Court and capable of giving evidence."

In the case on hand, both the attesting witnesses on the Will

of 2002, namely Sumati (DW.3) and Mahaveer Prasad Sharma

(DW.4) were produced in the Court since Mahaveer Prasad Sharma

[2024:RJ-JD:53174] (7 of 10) [CFA-37/2011]

did not appear for cross-examination, his evidence was not

considered.

15. DW.1 Abhay Kumar, the party/defendant has deposed that by

Will dated 15.6.2002 the grand father cancelled the earlier Will of

1992, the Will was written at the Court premise in presence of

Advocate Mahaveer Prasad. Mahaveer Prasad had dictated the Will

to the typist. Thereafter, it was taken to the house where Ram Lal

Ji was there as he was unable to move in the age of 82 years. In

the room of Ram Lal Ji other exercise of signing on the Will after

getting it read over to him was done, the witnesses also signed on

the Will there at the house. The Will was typed at the seat of

Notary, Mahaveer Prasad in the Court premise itself. The witness

admitted that infact there is no reference of the earlier Will of

1992, in the Will of 2002 vide Ex.A-1.

16. The defendant failed to discharge its burden that Kolkata

property was of Ram Lal at any point of time and hence, bequeath

of the Kolkata Property in favour of the plaintiff in the subsequent

Will itself creates doubt on the genuineness of the Will coupled

with other suspicious circumstances what the testator had said to

Mahaveer Prasad was not pen down even in shorthand nor the

dictation to the typist was made in presence of Ram Lal Ji.

17. DW.2 Shikhar Chandra is father of DW.1, he has admitted

that DW.3 Sumati, a witness on the Will of the year 2002 was his

sala. The plaintiff was in permissive possession of the house. In

the case on hand, admittedly there was a Will by the same

testator which was registered one and if the testator wanted to

revoke the same he should have clearly disclosed his mind with

[2024:RJ-JD:53174] (8 of 10) [CFA-37/2011]

reference to the particular Will which was already registered one

in the absence of clear and acceptable evidence on the point, it

cannot be accepted that the Will of 1992 was revoked by testator

Ram Lal Ji.

18. DW.3 Sumati could not prove due attestation of the Will, he

has deposed that his saw the typed copy of the Will, first Ram Lal

Ji read it thereafter, Advocate Mahaveer Prasad got it read over to

him then Ram Lal Ji signed on each page of the Will but the

witness did not sign on each page of the Will. The attestation

requires that every signature on the Will by the testator should be

in presence of the witnesses and the witnesses should also sign

attesting the signature of the testator. In absence of clear and

unambiguous evidence on the point it cannot be said that the Will

was duly proved.

19. DW.4 Mahaveer Prasad, who had drafted the Will had

deposed that on 2.6.2002, Ram Lal Ji had asked to draft a Will and

on 15.6.2002, the execution was notrified. In the cross-examined

the witness has admitted that Late Ram Lal Ji had not come to the

Court for drafting of the Will rather Will was drafted and typed at

the Court premises at the dictation of Mahaveer Prasad Ji. Though,

Mahaveer Prasad deposed that he had dictated as per instruction

of the testator but he could not remember what the testator had

dictated to him. Evidently, there is lack of evidence that the Will

produced by the defendant was the last Will duly executed by Late

Ram Lal Ji. The defendant/appellant failed to prove that the Will of

the year 2002 was a duly executed Will of Late Ram Lal Ji

revoking the earlier registered Will in absence of specific

[2024:RJ-JD:53174] (9 of 10) [CFA-37/2011]

stipulation in the subsequent Will regarding revocation of that

particular Will. The defendant further failed to prove that the

property at Kolkata was property of Ram Lal Ji which he could

have bequeathed to anyone. Therefore, subsequent Will of the

year 2002 Ex.A-1 was not a genuine and effective Will.

20. To sum up the preponderance of probability is in faovur of

the plaintiff/respondent case and against the case of the

defendant/appellant for following doubtful and suspicious

circumstances:-

A. Though, registration of a Will is not the requirement of law,

however, once a Will is registered it inspires confidence regarding

genuineness because registration is performed in presence of a

competent public authority. In the case on hand, the defendant

claims that registered Will was revoked by a subsequent

unregistered Will of the year 2002. The subsequent Will does not

specifically say that earlier registered Will has been revoked.

B. Though, a testator can revoke the first Will by a subsequent

Will or any other instrument during his lifetime but in the case on

hand, the revocation is doubtful. The defendant failed to prove its

pleading that there was any property of the testator in Kolkata

much less capable of being bequeathed. The plaintiff specifically

denied that the testator had any property in Kolkata. The

defendant also pleaded that testator had a rented premise at

Kolkata, which was bequeathed to the plaintiff/respondent. No one

can transfer title which he himself does not possess. A tenant

cannot transfer the rented premise, ownership whereof lies in

some other person. Thus, bequeathing a property not owned by

[2024:RJ-JD:53174] (10 of 10) [CFA-37/2011]

testator by the Will of the year 2002 is doubtful circumstance

regarding genuineness of the Will of the year 2002.

C. At the time of execution of the Will of 2002 admittedly, the

testator was aged about 82 years and unable to move, the last

Will of the testator was not pen down by Mr. Mahaveer Prasad,

even in short form, to whom testator allegedly made statement of

desire to execute a fresh Will revoking the earlier Will. Mahaveer

Prasad had admitted that Will was dictated by him in the Court

premise behind the back of the testator and the typist typed

accordingly. For the act aforesaid, the advocate has charged fee

which was not paid by the testator, the typed copy was brought

before testator at the house on which he put his signature. None

of the defendant witnesses have deposed that at the time of

execution of the Will, the testator was in sound disposing state of

mind. Evidently, there is lack of proof of execution of free Will with

sound disposing state of mind in the year 2002 by the testator. To

conclude, the defendant/appellant failed to prove the case

pleaded, rather, the case pleaded by the defendant and nature of

evidence brought probablizes the preponderance of probability in

favour of the plaintiff/respondent case.