Prem Devi and Another Vs. Bholanath Gattani - Court Judgment

Prakash Gupta, J.

1. This second appeal is preferred by the plaintiffs-appellants against the Judgment and Decree dated 23/01/201998 passed by the Additional District Judge No.2, Jaipur City, Jaipur (hereinafter referred to as 'the appellate Court') in Civil Regular appeal No. 34/94 whereby, the appellate Court dismissed the appeal and confirmed the Judgment and Decree dated 23/09/94 passed by the Civil Judge (J.D.) East, Jaipur City, Jaipur (hereinafter referred to as 'the trial Court') in civil suit No. 444/1993.

2. The brief facts giving rise to the this appeal are that the appellants-plaintiffs (hereinafter referred to as 'appellant') filed a suit for possession and permanent injunction with respect to disputed property described as two "Saals" situated in the house Pitalion Ka Chowk, Chowkari Vishvesharji, Jaipur. The said "Saals" have been shown and marked in the map as 'A' and 'B'. It is also alleged that previously, these two "saals" were one but later on had converted into two. The disputed "Saals" belonged to one Smt. Gulab Devi who was said to be the elder mother-in-law of Smt. Rama Bai. It is also alleged in the plaint that Gulab Devi was the owner and in possession thereof and she vide will dated 12/08/1940 bequeathed the said "Saal" to Smt. Rama Bai. Rama Bai made a registered will dated 06/01/1969 in favour of the appellants and thereafter the appellants are owner and in possession of the disputed "Saals". Smt. Gulab Devi died in the year 1945 and Smt. Rama Bai in the year 1969. The respondents-defendants (hereinafter referred to as 'the respondents') have been in possession of this "Saal" with the permission of Smt. Rama bai. The father of the respondent Arjundas took the "Saal" on license orally from Smt. Rama Bai. In the year 1969, some dispute between the parties arose regarding raising of construction and alteration and the respondents filed a suit bearing No. 597/69 in the Court of Munsif, Jaipur City, Jaipur in that suit the respondents filed written statement on 28/05/1970 wherein they claimed the ownership of the disputed "Saal".

3. The respondents resisted the suit by filing the written statement wherein they denied the execution of the will by either Smt. Gulab Devi or Smt. Rama Bai. The ownership of the Smt. Gulab Devi and Rama Bai was also denied and it is contended that the respondents themselves are the owners of the disputed property. Smt. Gulab Devi was not elder mother-in-law of the Smt. Rama Bai. Smt. Gulab Devi was elder sister-in-law of respondents grand father Banshidhar. Kanhaiyalal husband of Smt. Gulab Devi and Banshidar were real brother and belonged to a joint Hindu Family.

4. On the basis of the pleadings, the trial Court framed as many as eight issues, to prove the issues the plaintiffs examined 10 witnesses and defendant examined 13 witnesses. The trial Court vide Judgment and Decree dated 23/09/1994 dismissed the suit of the appellants. Feeling aggrieved the appellants filed an appeal which was dismissed by the Appellate Court vide the impugned Decree and Judgment dated 23/01/98 hence, this second appeal.

5. This appeal was admitted on 22/08/2006 on the following substantial question of law: -

"Whether, the will dated 12/08/1940 executed by Smt. Gulab Devi was more than 30 years old and produced from proper custody then the valid presumption of its due execution and attestation can be raised under Section 90 of the Evidence Act?"

6. I have heard learned counsel for the parties and perused the material on record minutely and carefully.

7. It is submitted by the learned senior counsel for the appellants Sh. J.P. Goyal that both the Courts below have failed to draw presumption about the execution of the will dated 12/08/1940 executed by Smt. Gulab Devi in as much as the said will was more than 30 years old and have been produced from the proper custody, therefore, a presumption should have been taken under Section 90 of the Evidence Act by the Courts below for its due execution and attestation. He submitted that both the courts below have failed to take into consideration the fact that scribe and all the attesting witnesses of the will Ex.-2 had died. The will Ex.-2 was duly proved by the PW2 Suraj Narain to PW4 Padamchand and PW3 Anandilal who were well conversant with the writing of attesting witnesses, therefore, requirement of Section 63(c) of Indian Succession Act and Section 68 of the Evidence Act were fulfilled. In support of his contention, he relied upon AIR (34) 1947 Privy Council 15 Munnalal, minor and others v. Mst. Kashibai and others, AIR 1989 Kerala 228 Saraswathy v. P. Bhavathy Ammal and another,AIR 1993 Patna 129 Haradhan Mahatha and others v. Dukhu Mahatha.

8. Per contra the learned counsel for the respondents Sh. Sudesh Bansal has submitted that presumption regarding documents which are 30 years old does not apply to a will. A will has to be proved in terms of the provision contained in Section 63(c) of the Succession Act and Section 68 of the Evidence Act. He submitted that merely that the will is more than 30 years old no presumption under Section 90 of the Evidence Act can be drawn that the will has been duly executed and attested by persons by whom it purports to have been executed and attested. The will Ex.-2 was not duly proved by the appellants and both the Courts below have rightly held that will Ex.-2 has not been proved by the appellants. He submitted that the Smt. Gulab Devi was not the owner and in possession of the property, therefore, she had no right or interest in the property which could be transferred by a will. Therefore, on the basis of the will Ex.-2, the appellants are not the owner of the disputed property. In support of his contention he relied upon (2013) 7 SCC 490 M.B. Ramesh (Dead) by LRs. v. K.M. Veeraje URS (Dead) by LRs and Others, (2009) 3 SCC 687 Bharpur Singh and Others v. Shamsher Singh, (2012) 8 SCC 148 Union of India v. Ibrahim Uddin and Another and RLW 1960 95 Mst. Mohari v. Mst. Chukli (21).

9. I have given my thoughtful consideration to rival submissions made by the learned counsel for both the parties and perused the material on record carefully and minutely.

10. In Munnalal, minor, and others v. Mst. Kashibai and others (supra) though it was held that in a case of will which is more than 30 years old presumption under Section 90 of Evidence Act could be drawn, but in the case of M.B. Ramesh (Dead) by LRs (supra) the Hon'ble Apex Court in para No. 17 has observed as under: -

"At the same time we cannot accept the submission on behalf of the respondents as well that merely because the will was more than 30 years old, a presumption under Section 90 of the Evidence Act, 1872 ("the Evidence Act", for short) ought to be drawn that the document has been duly executed and attested by the persons by whom it purports to have been executed and attested. As held by this Court in Bharpur Singh v. Shamsher Singh, a presumption regarding documents 30 years old does not apply to a will. A will has to be proved in terms of Section 63(c) of the Succession Act read with Section 68 of the Evidence Act."

11. In the case of Bharpur Singh and Others (supra) the Hon'ble Apex Court in para No. 19 has observed as under: -

"The provisions of Section 90 of the Evidence Act, 1872 keeping in view the nature of proof required for proving a will have no application. A Succession Act, 1925 and Section 68 of the Evidence Act, 1872. In the even the provisions thereof cannot be complied with, the other provisions contained therein, namely, Sections 69 and 70 of the Evidence Act providing for exceptions in relation thereto would be attracted. Compliance with statutory requirements for proving an ordinary document is not sufficient, as Section 68 of the Evidence Act postulates the execution must be proved by at least one of the attesting witnesses, if an attesting witness is alive and subject to the process of the court and capable of giving evidence. (See B. Venkatamuni v. C.J. Ayodhya Ram Singh, SCC p. 458, para 19)."

12. In view of the above legal proposition, in my considered view, the will must be proved in terms of the provision of Section 63(c) of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872. Keeping in view the nature of proof required for proving a will the provisions of Section 90 of Evidence Act 1872 have no application. Therefore, no presumption could be drawn under Section 90 of the Evidence Act with regard to will Ex.-2 dated 12/08/1940 which was said to be executed by Smt. Gulab Devi.

13. So far as the contention that if the attesting witnesses cannot be found, the execution can be proved by examining the witnesses who can identify the signature of the attester is concerned, there is no dispute about it, but in the present case, after having done a thorough appreciation of evidence, both the courts below have categorically held that will Ex.-2 has not been proved. I scrutinised the whole evidence regarding this and found no perversity in the findings recorded by the courts below. Even otherwise the plaintiffs utterly failed to prove that the property in question was personal property of Smt. Gulab Devi and she had any right to bequeath the same. In this regard the findings recorded by the learned trial Court are reproduced as under: -

HINDI

14. The findings with regard to the ownership of the Smt. Gulab Devi recorded by the Appellate Court are reproduced as under: -

HINDI

15. In this regard the learned senior counsel for the appellants has not challenged the above findings during the course of the arguments. Learned senior counsel has not been able to point out any other substantial question of law during the course of arguments. From the perusal of record of the case also no other substantial question of law arises for consideration of this Court.

From the above discussion, this appeal is devoid of merits and hence same is dismissed. No order as to costs.

Order accordingly.