1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5887 OF 2009
MOHAN LAL … APPELLANT
VERSUS
NAND LAL … RESPONDENT
JUDGMENT
N.V. RAMANA, J.
This appeal by special leave is directed against the
judgment dated 29th November, 2006 passed by the High Court
of Madhya Pradesh, Bench at Indore in First Appeal No. 239 of
1996 whereby the High Court while confirming the judgment of
the trial Court, dismissed the appeal preferred by the appellant
with costs.
2
2. In the year 1989, the respondent herein instituted a
Suit, before the District Judge, Indore seeking ejectment of his
brother—the appellant herein from the suit property and also
claiming mesne profits. The defendant—appellant herein
contested the Suit on the ground that he got half share in the
disputed property as it originally belonged to his late maternal
grandfather who was survived by only two daughters. On the
death of his grandfather his mother entered the succession and
he has been staying with his mother in the suit property.
Therefore the plaintiff—respondent cannot claim to be the sole
owner of the suit property and the Suit itself is misconceived.
Subsequently, the respondent—plaintiff amended the plaint to
the effect that during the lifetime of his grandfather, late
Goverdhanlal bequeathed the house property by executing a
Will on 9th September, 1945 in favour of the plaintiff, and after
the death of his grandfather in the year 1947, he has become
sole owner of the Suit property. Taking into account the Will
dated 9.9.1945, the trial Court decreed the Suit in favour of the
respondent—plaintiff. The aggrieved defendant—appellant
herein filed first appeal before the High Court. By the judgment
3
impugned herein, the High Court confirmed the judgment of
the trial Court and dismissed his appeal. Hence, the appellant
is before us in this appeal assailing the findings of the Courts
below.
3. We have heard learned counsel for the parties and
carefully gone through the material on record.
4. The case of the appellant is that he is entitled to half
share in the disputed property being grandson of late
Goverdhanlal and his name was also mutated in the municipal
records. The Will in question was put in evidence by the
plaintiff by amending the plaint after the filing of written
statement by him. It was not even executed in accordance with
the provisions of Sections 61 and 63 of the Indian Succession
Act and therefore, it cannot be taken into account as a valid
and genuine one under the Evidence Act. Further argument on
behalf of the appellant is that late Goverdhanlal has two
surviving daughters, namely, Manibai (mother of the parties)
and Durgabai and after the death of Durgabai, her daughters
4
Sarjubai and Rajubai also acquired rights on the disputed
property and therefore they are necessary parties to the Suit,
but none of these legal heirs of Late Goverdhanlal was made a
party to the Suit. Under these circumstances, the Courts below
could not have believed the Will to be a genuine document, but
by decreeing the Suit in favour of the plaintiff—respondent on
the basis of the said Will, both the Courts below have
committed an error or law.
5. On behalf of the respondent-plaintiff it was submitted
that at the time of execution of the Will on 9th September, 1945
the respondent—plaintiff alone was the male child in the family
and the Will was written by Late Goverdhanlal, who was an
advocate by profession, in his own handwriting. At the time of
death of Late Goverdhanlal, the respondent-plaintiff was about
13 years age and the appellant-defendant was born about 8
years after the death of Late Goverdhanlal. The appellant,
being younger brother of the respondent, was permitted to live
in the disputed property with an assurance from him that he
would vacate the house and hand over vacant possession of the
5
house to the respondent when demanded. But the appellant
failed to keep his promise and dishonestly got his name
mutated in the records of property tax. The Courts below have
rightly decided the matter after assessing the witnesses and
taking the Will into consideration and therefore the appeal at
hand deserves to be dismissed.
6. Now the short question that arises for consideration of
this Court in this appeal is whether the Courts below were
right in decreeing the suit in favour of the respondent—plaintiff
on the basis of the Will.
7. It is not in dispute that the Will was executed by the
testator in the year 1945 and it was drawn in the own
handwriting of the executant himself. His handwriting was also
duly proved by PW5—Nandlal Nagar, grandson-in-law of late
Goverdhanlal, who used to correspond with him and thereby
well acquainted with the handwriting of the testator. The
argument that the Will lacks credibility because the idea of
bringing it on record was an afterthought of the respondent—
6
plaintiff, that too after filing the written statement, cannot be
sustained for the reason that PW2—Tushar Akolekar, Clerk of
Indore Paraspar Sahkari Bank, clearly deposed, supported by
documentary evidence, that the respondent secured a loan
from the Bank by pledging the Will in the year 1964 and since
then the Will was kept in the bank. It is also on record that the
said witness (PW2) was not cross-examined at the trial. Going
by the material on record, we do not find any suspicious
circumstance surrounding the genuineness of the Will.
8. Merely taking the ground that the name of appellant
has also been mutated in the municipal record and thereby he
acquires right in the property, cannot be given effect to in the
absence of any cogent evidence in support of the claim. The
record shows that prior to the addition of his name in the
municipal records, when the respondent’s name alone was
there, the defendant—appellant had deposited the taxes in the
name of plaintiff—respondent, and there was no material on
record to show how the name of appellant—defendant was
added in the municipal records. In our opinion, the Courts
7
below have thoroughly assessed the material evidences and
accordingly came to the right conclusion. Once the will is
believed to be a genuine piece of document, there is no need for
us to delve into the matter further. In such circumstances, we
do not find any reason to disturb the concurrent findings
recorded by the Courts below by reasoned judgments.
9. For all the aforesaid reasons, the appeal lacks merit
and is, therefore, dismissed with no order as to costs.
…………......................J.
(N.V. RAMANA)
..................................J.
(S. ABDUL NAZEER)
NEW DELHI,
MARCH 21, 2018.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5887 OF 2009
MOHAN LAL … APPELLANT
VERSUS
NAND LAL … RESPONDENT
JUDGMENT
N.V. RAMANA, J.
This appeal by special leave is directed against the
judgment dated 29th November, 2006 passed by the High Court
of Madhya Pradesh, Bench at Indore in First Appeal No. 239 of
1996 whereby the High Court while confirming the judgment of
the trial Court, dismissed the appeal preferred by the appellant
with costs.
2
2. In the year 1989, the respondent herein instituted a
Suit, before the District Judge, Indore seeking ejectment of his
brother—the appellant herein from the suit property and also
claiming mesne profits. The defendant—appellant herein
contested the Suit on the ground that he got half share in the
disputed property as it originally belonged to his late maternal
grandfather who was survived by only two daughters. On the
death of his grandfather his mother entered the succession and
he has been staying with his mother in the suit property.
Therefore the plaintiff—respondent cannot claim to be the sole
owner of the suit property and the Suit itself is misconceived.
Subsequently, the respondent—plaintiff amended the plaint to
the effect that during the lifetime of his grandfather, late
Goverdhanlal bequeathed the house property by executing a
Will on 9th September, 1945 in favour of the plaintiff, and after
the death of his grandfather in the year 1947, he has become
sole owner of the Suit property. Taking into account the Will
dated 9.9.1945, the trial Court decreed the Suit in favour of the
respondent—plaintiff. The aggrieved defendant—appellant
herein filed first appeal before the High Court. By the judgment
3
impugned herein, the High Court confirmed the judgment of
the trial Court and dismissed his appeal. Hence, the appellant
is before us in this appeal assailing the findings of the Courts
below.
3. We have heard learned counsel for the parties and
carefully gone through the material on record.
4. The case of the appellant is that he is entitled to half
share in the disputed property being grandson of late
Goverdhanlal and his name was also mutated in the municipal
records. The Will in question was put in evidence by the
plaintiff by amending the plaint after the filing of written
statement by him. It was not even executed in accordance with
the provisions of Sections 61 and 63 of the Indian Succession
Act and therefore, it cannot be taken into account as a valid
and genuine one under the Evidence Act. Further argument on
behalf of the appellant is that late Goverdhanlal has two
surviving daughters, namely, Manibai (mother of the parties)
and Durgabai and after the death of Durgabai, her daughters
4
Sarjubai and Rajubai also acquired rights on the disputed
property and therefore they are necessary parties to the Suit,
but none of these legal heirs of Late Goverdhanlal was made a
party to the Suit. Under these circumstances, the Courts below
could not have believed the Will to be a genuine document, but
by decreeing the Suit in favour of the plaintiff—respondent on
the basis of the said Will, both the Courts below have
committed an error or law.
5. On behalf of the respondent-plaintiff it was submitted
that at the time of execution of the Will on 9th September, 1945
the respondent—plaintiff alone was the male child in the family
and the Will was written by Late Goverdhanlal, who was an
advocate by profession, in his own handwriting. At the time of
death of Late Goverdhanlal, the respondent-plaintiff was about
13 years age and the appellant-defendant was born about 8
years after the death of Late Goverdhanlal. The appellant,
being younger brother of the respondent, was permitted to live
in the disputed property with an assurance from him that he
would vacate the house and hand over vacant possession of the
5
house to the respondent when demanded. But the appellant
failed to keep his promise and dishonestly got his name
mutated in the records of property tax. The Courts below have
rightly decided the matter after assessing the witnesses and
taking the Will into consideration and therefore the appeal at
hand deserves to be dismissed.
6. Now the short question that arises for consideration of
this Court in this appeal is whether the Courts below were
right in decreeing the suit in favour of the respondent—plaintiff
on the basis of the Will.
7. It is not in dispute that the Will was executed by the
testator in the year 1945 and it was drawn in the own
handwriting of the executant himself. His handwriting was also
duly proved by PW5—Nandlal Nagar, grandson-in-law of late
Goverdhanlal, who used to correspond with him and thereby
well acquainted with the handwriting of the testator. The
argument that the Will lacks credibility because the idea of
bringing it on record was an afterthought of the respondent—
6
plaintiff, that too after filing the written statement, cannot be
sustained for the reason that PW2—Tushar Akolekar, Clerk of
Indore Paraspar Sahkari Bank, clearly deposed, supported by
documentary evidence, that the respondent secured a loan
from the Bank by pledging the Will in the year 1964 and since
then the Will was kept in the bank. It is also on record that the
said witness (PW2) was not cross-examined at the trial. Going
by the material on record, we do not find any suspicious
circumstance surrounding the genuineness of the Will.
8. Merely taking the ground that the name of appellant
has also been mutated in the municipal record and thereby he
acquires right in the property, cannot be given effect to in the
absence of any cogent evidence in support of the claim. The
record shows that prior to the addition of his name in the
municipal records, when the respondent’s name alone was
there, the defendant—appellant had deposited the taxes in the
name of plaintiff—respondent, and there was no material on
record to show how the name of appellant—defendant was
added in the municipal records. In our opinion, the Courts
7
below have thoroughly assessed the material evidences and
accordingly came to the right conclusion. Once the will is
believed to be a genuine piece of document, there is no need for
us to delve into the matter further. In such circumstances, we
do not find any reason to disturb the concurrent findings
recorded by the Courts below by reasoned judgments.
9. For all the aforesaid reasons, the appeal lacks merit
and is, therefore, dismissed with no order as to costs.
…………......................J.
(N.V. RAMANA)
..................................J.
(S. ABDUL NAZEER)
NEW DELHI,
MARCH 21, 2018.
