Smt. Shakuntala Bai & Ors. v. Mr. Mahaveer Prasad

Judgment

CIVILAPPELLATE JURISDICTION: Civil Appeal Nos. F 1630-1631 of2010 From the Judgment and Order dated 25.09.2003 in S. B. Civil Misc. Appeal No. 414 of 1997 of the High Court of Rajasthan at Jodhpur. Madhurima Tatia for the Appellants. YashankAdhyeru, Aruna Gapta, Sumita Hazarika for the Respondent. The Judgment of the Court was delivered by AMITAVA ROY, J.

1The present appeals, mount an assailment against the judgment and order dated 25.9.2003 rendered by a Single Bench of the High Court of Judicature for Rajasthan, allowing SB Civil Misc.Appeal No. 414/19.97, preferred before it, by the Respondent No. 1, Mahaveer Prasad against the verdict of the learned District Judge, Udaipur dated 24.5.1997, in Original Civil Case No. 32/1992, instituted by him under Section 372 of the Indian Succession Act 1925 for issuance of succession certificate in his favour, as well as the judgment and order dated 23.08.2007 passed in Division Bench Civil Special Appeal No.187 /2003 rendered by a Division Bench of the High Court sustaining the decision dated 25.09.2003 above referred to. Aggrieved on both the counts, the non-applicants in the succession certificate proceedings are in appeal. We have heard the learned counsel for the parties.

2The facts in pare minimum as offered by the rival pleadings, are that the predecessor-in-interest of the Respondent No.1, Velchand had_ two sons, Amba Lal and Kanhaiya Lal. Respondent No. 1, Mahaveer Prasad was the son of Amba Lal who died in 1956. The other siblings of Respondent No. 1 were Shanti Lal, Chhabi Lal and Shakuntala Bai, the Appellant No. 1 herein. Chhabi Lal died leaving behind Shakuntala Jain, the Appellant No. 2, his widow and daughter Vishakha Jain, Appellant No.

3The Respondent No. 1 was taken in adoption by Kanhaiya Lal, who had no son, in the year 1962, and a registered deed of adoption was executed on 30.10.1962 .. Kanhaiya Lal died on 06.01.1992 leaving besides his adopted son, Respondent No. 1, Mahaveer Prasad, his wife Sohanbai and his daughter Kantabai. Sohanbai died on 01.03.2001 and Kantabai on 25.11.2007 leaving behind two daughters, named Vijay Lakshmi and SMT. SHAKUNTALABAI & ORS. v. MR. MAHAVEER PRASAD [AMITAVA ROY, J.] Kanchan Devi, Appellant No. 4 and 5 respectively. In due A course, the name of Kantabai who had died during the pendency of the instant appeals, was deleted from the array of the parties. 3. The respondent No. 1, Mahaveer Prasad, filed an B application before the learned Trial Court under Section 372 of the Indian Succession Act 1925 (for short hereinafter referred to as 'theAe;t') for issuance of succession certificate, to enable him to collect the rent from the tenants of the ground floor and basement thereunder of the property of Kanhaiya Lal (who was C by then dead) situated at Plot No. 2, Bapu Bazar, Udaipur and the deposits in the bank account of the deceased.

This was preceded by a Will dated 15.11.1978, which the Respondent No. 1 claimed to have been executed by Kanhaiya Lal, bequeathing property mentioned therein to him. As the records D would reveal, this Will was in supersession of earlier Wills dated 01.11.1962 and 23.12.197 4. The Respondent No. 1 founded his application for succession of certificate on the Will dated 15.11.1978, which according to him was the last in the line, validly executed by the testator Kanhaiya Lal. While nonapplicant No. 1 and 2, Sohanbai (wife of Kan~aiya Lal) and Kantabai (daughter of Kanhaiya Lal) in their written-statement · supported the application of the Respondent No.1 and pleaded that the succession certificate may be issued him as prayed for, the non-applicant No. 3 and 4 Chhabi Lal and Shakuntla alleged that the Will dated 15.11.1978 was a fictitious one and asserted that the one dated 23.12.197 4, was the last valid Will of Kanhaiya Lal. Non-applicant No. 5 and 6 Vijay Lakshmi and Kanchan Devi, both daughters of Kantabai, did also G · avowed that the Will dated 15.11.1978 was a fake document and the one dated 23.12.197 4 was the last valid Will for the testator above named.

4On the basis of the pleadings of the parties, the H learned Trial Court framed the following issues: [2015] 1 O S.C.R. "1. If deceased Shri Kanhaiya Lal had adopted applicant Shri Mahaveer Prasad in a legal manner and on 15.11.1978, he had voluntarily executed a legal WILL in favour of the applicant? 2. If on 23.12.1974, deceased Shri Kanhaiya Lal had executed his Will and deposited with the Registrar, Udaipur and this Will is last and legal Will of late Shri Kanhaiya Lal ? 3. If applicant Shri Mahaveer Prasad or out of objectors, who are entitled to get succession certificate?" 4.1 Admittedly by order dated 09.02.2006, the learned Trial Court deleted the issue No. 2 quoted hereinabove, thus 0 leaving the issues No. 1 and 3, originally framed, to be decided in the proceedings before it.

5Both sides adduced evidence, both oral and documentary. Amongst others, the Will dated 15.11.1978 was proved as Exh. 2 and the Respondent No. 1 examined himself in respect of the said document ano also Mohan Lal AW 3 and Mangi Lal AW 4, more particularly, to prove the attestation of · the said document. He also examined Mr. P S Mamik, a handwriting expert. The contesting non-applicants also interalia examined one Shri Achyut, DW 1, a handwriting expert, apart from other witnesses.

6The learned Trial Court, on a consideration of the pleadings of the parties and the evidence on record, held that the Will dated 15.11.1978 was not a valid one and had been deceitfully obtained by converting two blank papers, on which the signatures of the testator Kanhaiya Lal had been procured by fraud. It instead returned a finding that the Will dated 23.12.1974 was last the valid instrumentof bequest, though as adverted to hereinabove th.e issue No. 2, pertaining thereto, had been deleted. PRASAD [AMIT AVA ROY, J .] 6.1 The learned Trial Court in concluding· as above, A though did notice the testimony of AW 3 Mohan- Lal, that he had signed the Will dated 15.11.1978 and that his signatures had been obtained in such capacity by the testator himself and further, that he (testator) had also signed on every page of the document in his presence, disbelieved this witness, amongst others on the ground, that he had been at the relevant point of time, working as a salesman in the shop of the testator and that he had failed to correctly recollect many facts pertaining to the strained relationship between the legatee, the Respondent No. 1, Mahaveer Prasad and the testator. The C learned Trial Court rejected as well the testimony of AW 4 Mangi Lal, to the effect that his uncle Kanhaiya Lal Kunawat was the other attesting witness, who had signed the disputed Will, Exh. 2, in proof of attestation of the execution thereof by the testator. 0

7According to the learned Trial Court, this witness was not reliable, as the son of Kanhaiya Lal Kunawat though alive, was not produced as a witness and he (Mangi Lal) too was the employee of testator. The identification of the signatures of the testator Kanhaiya Lal Kunawat on the Will, Exh. 2, by Mangi Lal was also discarded, on the ground that he had faltered to correctly recall the year of execution of the document. The learned Trial Court was of the view, that as at the relevant time of the family members were living together F with the Kanhaiya Lal, and shared a cordial relationship, there was no justification for the disputed Will dated 15.11.1978, by superseding the earlier bequest made vide the Will dated 23.12.1974.

8Shri P. S. Mamik, the handwriting expert, examined G by the Respondent No.1 on an examination of the Will, Exh. 2 and the disputed signatures thereon, had opined that those were 1n fact of the deceased Kanhaiya l.:al. This witness also proved his report to this effect, Exh. 3. The learned Trial Court H instead relied on· the opinion of Shri Achyut, NAW 1, the handwriting expert examined by the contesting non applicants though this witness too had opined that the signatures appearing on the disputed Will, Exh. 2 were of the testator Kanhaiya Lal, but had expressed his view that having regard to the contents of the document and the spacing of the lines, it appeared to have been prepared later.

9Being aggrieved by this determination, the Respondent No. 1 preferred appeal before the High Court and as referred to hereinabove, SB Civil Misc. Appeal No. 414/ 1997 preferred by the Respondent No. 1 was allowed and DB Civil Special Appeal No. 87 /2003 instituted by the appellants was dismissed. The High Court reversed the decision of the Trial Court and allowed the appeal filed by the Respondent No. 1 herein and directed issuance of the successiqn certificate in his favour. 1 o: On an elaborate assessment of the pleadings and the evidence adduced, the High Court at the threshold, noticed the error apparent on the face of the records committed by the learned Trial Court in examining the rival contentions in the context of the Will dated 23.12.1974, which was the subject matter of issue No. 2 that stood deleted. It recorded as well, that on the consensus of the parties, the disputed Will, Exh.

2 had been referred to the Forensic Science Laboratory and that the report furnished did prove that the signatures appearing thereon were of the testator. It discarded the testimony of NAW 1 Shri Achyut Narayan that though the two sheets of paper comprising the Will, Exh. 2 did contain the signatures of the testator, those had been obtained on blank papers and were later on converted into the instrument of dispensation. The High Court held amongst others that the evidence of Mahaveer Prasad and his ·witnesses Mohan Lal (AW 3) and Mangi Lal (AW 4) proved the execution and attestation of the will Exh. 2. PRASAD [AMITAVAROY, J.] The High Court did also take notice of the fact that the A Respondent No. 1, had been taken in adoption by the testator, a fact not disputed and that in absence of any Will, he (Respondent No.1) would have even otherwise, succeeded to the property of Kanhaiya Lal in that capacity.

It viewed the disputed Will to be an instrument, whereby the status of B the Respondent No. 1 as the son of the family had been restored after initial misgivings. It also dismissed the grounds on which the testimony of attesting witnesses Mohan Lal and that of Maingi Lal qua attestation by his uncle Kanhaiya Lal Kunawat had been rejected by the learned Trial Court. The fact that the C non-applicants, who claimed to be the beneficiaries of the Will dated 23.12.197 4 had not at any point of time sought for a probate thereof was noticed as well. That the application for succession certificate made by the Respondent No. 1, was 0 supported by the wife and the daughter of the testator, also weighed with the High Court in his (Respondent No. 1) favour.

11The learned counsel for the appellants has strenuously argued that neitherthe execution of the Will, Exh. 2, nor the attestation thereof has been proved and thus the E High Court was clearly in error in reversing the determination made by the learned Trial Court. According to her, the last valid Will of the testat~r Kanhaiya Lal was dated 23.12.1974, a registered document. She urged that the disputed Will being an instrument, whereby patently unfair and illogical dispensations have been made, is also otherwise rejectable, being surrounded by several suspicious circumstances, which the propounder had failed to dispel. In her endeavour to buttress the above contentions, the learned counsel for the G appellants, had drawn our attention to the contents of the Wills dated 23.12.1974 and 15.11.1978.

12As against this, the learned counsel for the Respondent No. 1 urged that the Will, Exh. 2 had been duly H ·.~·l A executed by the testator Kanhaiya Lal, as required in law and in the face of the evidence on record, more particularly, of Mohan Lal (AW 3) arid Mangi Lal (AW 4 ), the attestation thereof also starids established. Apart from the fact that Respondent i · ·No. 1, had been adopted by the testator and that he was thus B the o'nly son ,of the family .for all intents and purposes, the , contents of the Will dated 15.11.1978, did clearly explain the '.bequest in his favour, he maintained. The learnedcounsel · :asserted that the fact that the wife and daughter of Kanhaiya i ,) l' Lal did support the application of the Respondent No. 1 for the c 'succession certificate authenticated as well, the validity of the 'disputed Will, Exh: 2. He pointed out that the succession ,certificate was toi-'the rimited purpose'of collectingthe rent 'paid by the tena'nts in respect of the premises; mentioned 1~ ,therein and lying in.dep6sitwith thebank and thus in any view of the matter, the instant appeal lacks in merit and is liable to be dismiss.Eid. · f·:.n~· 1 :. :~ . .

13We have traversed the pleadings, the evidence on . , record to the extent necessary and have also carefully analysed E . the competin'g a'rguments advanced, Undisputedly, the. : Respondent No'. 1 had been adopted by Kanhaiya Lal in the · year 1962 and had become a part of the family thereby .. As ~the Will dated 15.11.1978, Exh. 2would reveal, it was preceded 1.tiy,tw6Wills· dated .01.1.1.1962 ·and 2~.12,1974.,',.jhich · witnessed different patterns of disposition of the properties . mentioned therein. The Will dated 15.11.1978, as the recital I . thereof, would reveal superseded the earlier Wills dated '01.11.1962 and 23:12.1974. The contents of this Will, Exh.2 ;:;G ~ c!i~closesc that the te~tafor 'being earlier annoyed ~ith Respondent No. 1 and as advised by others, had sought to ·disinherit him and with that state of mind had execute'd the Will · dated 23.12.197 4.

However, following deeper reflections and , ... ·.·self introspections generally as well as review in.the spiritual H perspectives, he decided to cancel the Will dated 23.12.1974 ' SMT.' SHAKUNTALA BAI & ORS. v. MR. MAHAVEER , PRASAD [AMITAVA ROY, J.] and instead execute the one dated 15.11.1978. Thereby, the .A . property referred to therein was bequeathed to Respondent . : No. 1, who was also entrusted with the responsibility of looking ·after his (testator) wife Sohanbai and daughter Kantabai during · · ttieir lifetime. The wife and daughter of the testator, as named '. above· were also given full rights to live in the house named , B · 'Jain Rishabh Bhawan' which stood otherwise bequeathed by .·the instrument; in favour of Respondent No. 1 Mahaveer Prasad.

The Will mentioned as well, that the testator had written and ' verified the document iri presence of and under the signatures . of two witnesses, namely, Mohan Lal Jain and Kanhaiya Lal c · afterconsiderable thought and voluntarily without any pressure. These documents, also contained the signatures of Shri Mohan Lal,Jairi· and Shri Kanhaiya Lal/. as witnesses who had · ~ti:t:rs 1 ~:~ t~e s:g~atures of:the t.~stator ther~~~ as ~ertified by ·., 0 ,(',..:i:- ,,.J• . c:;•: ' : 1.4. On a perusal of the evidence of AW 3, Mohan Lal and AW 4, Mangi Lal, it is apparentthat these two witnesses have been able to satisfactorily prove the execution of the Will . · dated 15.1.1.1978 and the attestation thereof by two witnesses, "E · '· as required in law: As adverle'd to herein above, the signature \of the testator Kanhaiya Lal, on these documents has been ;. el'ldcirsed by both the handwriting experts. The report of the _For.:nsic:.Science Labor~~ory also corroborates this finding.

1 F ~rhe view expressed by ShnAchyut Narayan, NAW 1 that though the signatures are genuine! those had been obtained on blank papers, which later on were .converted into the Will, in the face . of the overwhelming testimony of AW 3, Mohan Lal and AW 4, Mangi Lal, had been rightly rejected by the .High Court.; The G recitals of the Will,.Exh. 2, also provide sufficientjustification for the bequest in favour of Respondent No. 1, Mahaveer Prasad. The factthatwife and daughter of the testator had, at all relevant time, supported the Respondent No. 1 in his. initiatives to obtain the succession certificate is also a· H formidable factor in his favour as well as in endorsement of the genuineness of the Will, 15.11.1978. Noticeably though, the Will dated 23.12.1974 had been registered, no steps had been taken by the non-applicants to obtain the probate thereof. It is not unlikely, that the testator, out of, some disappointment and reseNations qua the adopted son, Respondent No. 1 had in the rush of moment and as advised by the persons interested, as recited in the Will dated 1.5.11.1978, did momentarily decide to disinherit the only son of the family.

However, on an equanimous re-consideration and following indepth and dispassionate cogitation, he eventually decided again to bequeath all his properties to him. The approval of the mother and the sister to this bequest is a strong indicator to this effect. We are thus of the view, that in the above factual background, 0 the dispensation made by the testator in favour of the Respqndent Mo. 1 cannot be repudiated to be in defiance of log!c or unfair vis-a-vis the other members of the family. We do not find as well, any vitiating or suspicious circumstance invalidating the bequest.

15The upshot of the above narration is that, the conclusions recorded by the High Court are plausible being based on the materials on record and thus do not warrant any interference in the appeals. On an overall consideration of the pleadings and the evidence adduced, the findings of the learned Trial Court have been rightly reversed. These appeals thus fail and are dismissed.

16No cost. Kalpana K. Tripathy Appeals dismissed.