advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Tuesday, July 7, 2015

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==== “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? “= On a perusal of the evidence of AW 3, Mohan Lal and AW 4, Mangi Lal, it is apparent that these two witnesses have been able to satisfactorily prove the execution of the Will dated 15.11.1978 and the attestation thereof by two witnesses, as required in law. As adverted to herein above, the signature of the testator Kanhaiya Lal, on these documents has been endorsed by both the handwriting experts. The report of the Forensic Science Laboratory also corroborates this finding. The view expressed by Shri Achyut 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 recitals of the Will, Exh. 2, also provide sufficient justification for the bequest in favour of Respondent No. 1, Mahaveer Prasad. The fact that wife 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 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 reservations 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 15.11.1978, 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, the dispensation made by the testator in favour of the Respondent No. 1 cannot be repudiated to be in defiance of logic or unfair vis-à-vis the other members of the family. We do not find as well, any vitiating or suspicious circumstance invalidating the bequest. 15. The 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.

                                                   {REPORTABLE}


                 IN THE SUPREME COURT OF INDIA
                  CIVIL APPELLATE JURISDICTION
                 CIVIL APPEAL NOS. 1630-31 OF 2010




Smt. Shakuntala Bai & Ors.                         ….Appellants

                             Versus

Mr. Mahaveer Prasad                                ….Respondent



                            JUDGMENT

AMITAVA ROY, J.

   1. The 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. 414/1997,
      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.

   2. The facts in bare 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.
      3. The 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 Kanchan Devi, Appellant No. 4 and 5 respectively.  In  due
      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 application before the
      learned Trial Court under Section 372 of  the  Indian  Succession  Act
      1925 (for short hereinafter referred to as ‘the Act’) 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 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 would reveal, this Will  was
      in supersession of earlier Wills dated 01.11.1962 and 23.12.1974.  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  non-
      applicant No. 1 and 2, Sohanbai (wife of Kanhaiya  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  23.12.1974,  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  avowed
      that the Will dated 15.11.1978 was a fake document and the  one  dated
      23.12.1974 was the last valid Will for the testator above named.

   4. On the basis of the pleadings of the parties, the learned Trial  Court
      framed the following issues:

      “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 leaving the issues  No.  1  and  3,
originally framed, to be decided in the proceedings before it.

5.    Both 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 and  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 inter-alia examined one Shri Achyut, DW 1,  a
handwriting expert, apart from other witnesses.

6.    The 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 instrument of bequest, though as  adverted  to
hereinabove the issue No. 2, pertaining thereto, had been deleted.

6.1   The learned Trial Court in concluding as above, 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
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.

7.    According 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 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.

8.    Shri P. S. Mamik, the handwriting expert, examined by  the  Respondent
No.1 on an examination of the Will,  Exh.  2  and  the  disputed  signatures
thereon, had opined that those were in fact of the  deceased  Kanhaiya  Lal.
This witness also proved his report to this effect,  Exh.  3.   The  learned
Trial Court 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.

9.    Being 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 succession certificate in his favour.

10.   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.  The  High  Court  did  also  take  notice  of  the  fact  that  the
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 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 Mangi Lal  qua  attestation  by
his uncle Kanhaiya Lal Kunawat  had  been  rejected  by  the  learned  Trial
Court.   The  fact  that  the  non-applicants,  who  claimed   to   be   the
beneficiaries of the Will dated 23.12.1974 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  supported  by  the
wife and the daughter of the testator, also weighed with the High  Court  in
his (Respondent No. 1) favour.

11.   The learned counsel for the appellants  has  strenuously  argued  that
neither the execution of the Will, Exh. 2, nor the attestation  thereof  has
been proved and thus the 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 testator 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  appellants,  had  drawn
our attention to the contents of the Wills dated 23.12.1974 and 15.11.1978.

12.   As against this, the learned counsel for the Respondent  No.  1  urged
that the Will, Exh. 2 had been duly 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) and Mangi  Lal  (AW  4),  the  attestation
thereof also stands established.  Apart from the fact  that  Respondent  No.
1, had been adopted by the testator and that he was thus  the  only  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 learned counsel asserted that the fact that the  wife  and  daughter  of
Kanhaiya Lal did support the application of the Respondent  No.  1  for  the
succession certificate authenticated as well, the validity of  the  disputed
Will, Exh. 2.  He pointed out that the succession certificate  was  for  the
limited purpose of collecting the rent paid by the  tenants  in  respect  of
the premises, mentioned therein and lying in deposit with the bank and  thus
in any view of the matter, the instant appeal lacks in merit and  is  liable
to be dismissed.

13.   We have traversed the pleadings, the evidence on record to the  extent
necessary  and  have  also  carefully  analysed  the   competing   arguments
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. 2 would reveal, it was  preceded  by  two  Wills
dated 01.11.1962  and  23.12.1974  which  witnessed  different  patterns  of
disposition  of  the  properties  mentioned   therein.    The   Will   dated
15.11.1978, as the recital thereof,  would  reveal  superseded  the  earlier
Wills dated 01.11.1962 and 23.12.1974.  The contents of this  Will,  Exh.  2
discloses that the testator being earlier annoyed with Respondent No. 1  and
as advised by others, had sought to disinherit him and with  that  state  of
mind had executed the Will  dated  23.12.1974.   However,  following  deeper
reflections and self introspections generally  as  well  as  review  in  the
spiritual perspectives, he decided to cancel the Will dated  23.12.1974  and
instead execute the one dated 15.11.1978.  Thereby,  the  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 their lifetime.   The  wife  and  daughter  of  the
testator, as named above were also given full rights to live  in  the  house
named  ‘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
in presence of and under the signatures of two witnesses, namely, Mohan  Lal
Jain and Kanhaiya Lal after considerable  thought  and  voluntarily  without
any pressure.  These documents, also contained the signatures of Shri  Mohan
Lal  Jain  and  Shri  Kanhaiya  Lal,  as  witnesses  who  had  endorsed  the
signatures of the testator thereon as certified by them.

14.   On a perusal of the evidence of AW 3, Mohan Lal and AW 4,  Mangi  Lal,
it is apparent that these two witnesses have  been  able  to  satisfactorily
prove the execution  of  the  Will  dated  15.11.1978  and  the  attestation
thereof by two witnesses, as required in law.  As adverted to herein  above,
the signature of the testator Kanhaiya Lal,  on  these  documents  has  been
endorsed by both the  handwriting  experts.   The  report  of  the  Forensic
Science Laboratory also corroborates this finding.  The  view  expressed  by
Shri Achyut 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 recitals  of
the Will, Exh. 2, also provide sufficient justification for the  bequest  in
favour of Respondent  No.  1,  Mahaveer  Prasad.  The  fact  that  wife  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 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 reservations 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 15.11.1978, 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,  the  dispensation  made  by  the  testator  in  favour  of  the
Respondent No. 1  cannot be repudiated to be in defiance of logic or  unfair
vis-à-vis the other members of the family.  We do  not  find  as  well,  any
vitiating or suspicious circumstance invalidating the bequest.

15.   The 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.

16.   No cost.


                                                                ..……………………J.
                                                      (R. K. Agrawal)


                                                                ……………………..J.
                                                      (Amitava Roy)
New Delhi
Dated: 02 July, 2015










No comments:

Post a Comment

Note: Only a member of this blog may post a comment.