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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No.3410 of 2007

DHANNULAL AND OTHERS …..Appellant(s)

versus

GANESHRAM AND ANOTHER       …..Respondent(s)

WITH

Civil Appeal No.3411 of 2007 GANESHRAM …..Appellant(s)

versus

DHANNULAL AND OTHERS       …..Respondent(s)

JUDGMENT

M. Y. EQBAL, J.  

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Aggrieved by the judgment and order  passed by the  

High  Court,  partly  dismissing  First  Appeal  No.92  of  2001,  

both  the  plaintiff  and  the  defendant  have  filed  the  

aforementioned  two  appeals.   While  confirming  judgment  

and decree, the High Court reversed the finding recorded by  

the trial court on the issue of will executed by the testatrix.  

2. The  plaintiff-Ganeshram,  appellant  in  Civil  Appeal  

No.3411 of 2007, filed suit for declaration, possession and  

damages  in  relation  to  the  two  suit  houses  described  in  

Schedule A & B of  the plaint,  pleading inter  alia  that  the  

registered  sale  deed  of  1987,  executed by  Phoolbasa  Bai  

(original defendant no.1, who died during the pendency of  

the  suit)  in  favour  of  defendant  no.5  Mukesh  Kumar  

Chourasia, which relates to some portion of suit house, be  

declared illegal, void and not binding on him.

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3. To understand factual matrix and issue involved in the  

case, we would like to reproduce here the pedigree table as  

submitted before us:

Shivram (Died in 1932)

____________________________________|_____________________________ | | Sumitrabai (Daughter)(died in 1976)        Chhatrapati(Son) (died in 1945)    Husband of Sumitra-Mangal Prasad   Kept-wife: Phulbasabai (def.no.1)

(Died in 1954) | | Mannulal (son)(  | (died unmarried on 14.4.1967)

______|___________________________ |     | Shyamlal (son) Radha Bai (daughter) (died in 1973)

| _______|____________________________________________________ | |       | Ganeshram (son) Laxmi Bai (daughter) Ganga Bai (daughter) Plaintiff

4. The suit property was originally owned by Shivram who  

had  a  daughter  Sumitrabai  and  a  son  Chhatrapati.  The  

plaintiff,  the  grandson  of  Sumitrabai,  filed  a  suit  for  

declaration  of  ownership,  possession  and  damages  in  

relation to the suit property against defendant nos.1 to 5.  

The  plaintiff  challenged  the  validity  of  the  Will  dated  

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18.08.1977 purported to have been executed by Phoolbasa  

Bai  in  favour  of  the  sons  of  her  brother  Gayaprasad,  

defendant nos.1-4. The plaintiff also challenged the validity  

of  the  sale  deed  purported  to  have  been  executed  by  

Phoolbasa Bai in 1987 in favour of defendant no. 5 in relation  

to a portion of the suit property.

5. The  plaintiff  alleged  that  Sumitrabai  (plaintiff’s  

grandmother) had become the owner of the suit property by  

adverse possession having stayed therein, after the death of  

her husband Mangal, with her father Shivram till his death in  

1932 and till  her  own death in  1976.   Phoolbasa Bai  was  

alleged  to  have  been  the  mistress  and  not  the  legally  

wedded wife  of  Chhatrapati  and their  son  was  alleged to  

have died unmarried and issueless in 1967.  The sale deed  

and the Will purported to have been executed by Phoolbasa  

Bai were alleged to be illegal.

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6.  The  suit  was  contested  firstly  by  filing  joint  written  

statement by the original defendants namely Phoolbasa Bai  

and Gaya Prasad stating that after the death of Shiv Ram  

the entire property was succeeded by Chhatrapati (his only  

son) as Sumitrabai was a married daughter.  It was further  

pleaded that Phoolbasa Bai, being the lawful wedded wife of  

Chhatrapati,  became the owner  of  the  suit  property  after  

Chhatrapati’s  death in 1945.   During the pendency of the  

suit, when Phoolbasa died, she was substituted by defendant  

nos.1  to  4,  who  also  filed  separate  written  statement  in  

addition  to  earlier  written  statement  filed  by  the  original  

defendants.   Defendant  no.5  also  filed  separate  written  

statement  claiming  to  be  the  owner  of  the  portion  of  

property by virtue of a sale deed executed in his favour in  

1987.

7. The trial court dismissed the civil suit holding that the  

Will  executed by Phoolbasa in  the year  1977 in favour  of  

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defendants nos.1 to 4 is legal and the sale effected by her  

during the pendency of the civil suit in favour of defendant  

no.5 is  also legal  and valid.   The trial  judge recorded the  

finding  that  Sumitra  Bai  had  not  perfected  her  title  by  

adverse possession and the plaintiff could not establish that  

Phoolbasa Bai was a concubine of late Chhatrapati.  The trial  

court  also  recorded  a  finding  that  the  plaintiff  failed  to  

establish  that  the  Will  was  a  fraudulent  and  fabricated  

document.

8. Aggrieved  by  the  judgment  and  decree  of  the  trial  

court, plaintiff moved the High Court preferring First Appeal,  

which was partly dismissed by the learned Single Judge of  

the High Court.  Although learned Single Judge set aside the  

finding of the trial court on the issue of validity of the Will on  

the  ground  that  the  Will  was  not  proved as  per  law,  but  

upheld the sale deed executed by Phoolbasa Bai in favour of  

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defendant no.5.  The concluding paragraphs of the impugned  

order are, therefore, quoted hereinbelow:

“In the facts and circumstances, the sale in favour of  defendant no.5 was a valid sale and the same cannot  be held to be illegal, void and not binding against the  plaintiff.   The  arguments  advanced  in  this  regard  cannot be accepted.

Now the question arises,  what should be the legal  position after the death of Smt. Phoolbasa and her  son namely Mannulal when it has been held that the  alleged will executed in favour of defendants nos.1 to  4 was not proved.  Certainly these properties were  succeeded  by  her  from  her  husband  or  from  her  father-in-law, therefore, according to Section 15(2)(b)  of the Hindu Succesion Act, this shall devolve, in the  absence  of  any  son  or  daughter  of  the  deceased  (including  the  children  of  any  predeceased  son  or  daughter)  upon  the  heirs  of  her  husband.   In  this  case, if we look to the pedigree set forth in the plaint,  the  succeeding  heir  of  her  husband,  namely  Chhatrapati, would be sister’s daughter which finds  place as serial no.4 in Entry IV of Class II of Schedule.  When Radha Bai, the sister’s daughter is said to be  alive  on  the  date  of  succession  according  to  the  plaint  allegations  itself,  then  the  plaintiff,  in  the  reversionary right will  not get the ownership of the  property.

In the result, the appeal is dismissed.  The judgment  and  decree  passed  by  the  trial  court  are  hereby  confirmed  with  the  aforesaid  modifications  in  the  finding regard the ‘Will’.”

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9. Hence, present cross appeals filed by both side against  

each other including purchaser-defendant no.5.  Defendants  

nos.1 to 4 have preferred Civil Appeal No.3410 of 2007 and  

the plaintiff has preferred Civil Appeal No.3411 of 2007.

10. Mr. Naveen Prakash, learned counsel appearing for the  

plaintiff-appellant  in  C.A.  No.3411  of  2007  assailed  the  

finding on the relationship of Chhatrapati and Phoolbasa Bai  

as  husband  and  legally  married  wife.   Learned  counsel  

submitted that no witness from the side of defendant has  

been examined to prove the marriage of Phoolbasa Bai with  

Chhatrapati.   Learned  counsel  further  submitted  that  no  

finding has been recorded by the Trial Court or the Appellate  

Court as to when Chhatrapati died.  However, in course of  

argument, learned counsel does not deny that Phoolbasa Bai  

was living with the joint family when Chhatrapati was alive  

for  the  last  20  years,  but  there  is  no  evidence  of  valid  

marriage.   

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11. We are unable to accept the submissions made by Mr.  

Naveen Prakash, learned counsel appearing for the plaintiff-

appellant. Indisputably, the first wife of Chhatrapati died in  

the very early age and immediately thereafter the original  

defendant No.1 Phoolbasa Bai started living with Chhatrapati  

as his second wife.  Out of the wedlock of Phoolbasa Bai and  

Chhatrapati, one son was born, whose name was Mannu Lal.  

The  said  son  of  Chhatrapati  and  Phoolbasa  Bai  died  

unmarried.  It is also not in dispute that  the original owner  

Shiv Ram had only  one son namely,  Chhatrapati  and one  

daughter  Sumitrabai.  Phoolbasa  Bai  died  during  the  

pendency of the suit in the year 1992.  The relationship of  

Chhatrapati and Phoolbasa Bai has not been denied.  It has  

also not been denied that they had been living together as  

husband and wife in a joint family.

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12. In the fact of the case there is strong presumption in  

favour of the validity of a marriage and the legitimacy of its  

child for the reason that the relationship of Chhatrapati and  

Phoolbasa Bai are recognized by all persons concerned.  

13. In the case of A. Dinohamy vs. W.L. Balahamy, AIR  

1927 PC 185, it was held that where a man and woman are  

proved to have lived together as husband and wife, the law  

will presume, unless the contrary is clearly proved, that they  

were living together in consequence of a valid marriage, and  

not  in  a  state  of  concubinage.   The  Court  observed  as  

follows-

“The parties lived together for twenty years in  the same house, and eight children were born  to  them.  The  husband  during  his  life  recognized, by affectionate provisions, his wife,  and children, The evidence' of the Registrar of  the  District  shows  that  for  a  long  course  of  years the parties were recognized as married  citizens,  and  even  the  family  functions  and  ceremonies,  such  as,  in  particular,  the  reception of the relations and other guests in  the family house by Don Andris and Balahamy  as  host  and  hostess--all  such  functions  were  conducted on the footing alone that they were  

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man  and  wife.  No  evidence  whatsoever  is  afforded  of  repudiation  of  this  relation  by  husband or wife or anybody.”

14. In the case of  Gokal Chand vs. Parvin Kumari, AIR  

1952  SC  231,  this  Court  observed  that  continuous  co-

habitation  of  woman  as  husband  and  wife  and  their  

treatment  as  such  for  a  number  of  years  may  raise  the  

presumption of marriage, but the presumption which may be  

drawn from long co-habitation is rebuttable and if there are  

circumstances which weaken and destroy that presumption,  

the Court cannot ignore them.

15. It  is  well  settled  that  the  law  presumes  in  favour  of  

marriage and against concubinage, when a man and woman  

have cohabited continuously for a long time.  However, the  

presumption  can  be  rebutted  by  leading  unimpeachable  

evidence.   A heavy burden lies  on a party,  who seeks to  

deprive the relationship of legal origin. In the instant case,  

instead of adducing unimpeachable evidence by the plaintiff,  

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a plea was taken that the defendant has failed to prove the  

fact  that  Phoolbasa  Bai  was  the  legally  married  wife  of  

Chhatrapati.  The High Court, therefore, came to a correct  

conclusion by recording a finding that Phoolbasa Bai was the  

legally married wife of Chhatrapati.  

16. For the aforesaid reason, we do not find any merit in  

C.A. No.3411 of 2007.

17. So far the validity of will is concerned, the High Court  

after considering a catena of decisions came to the following  

conclusion:-

“26.  If  we  apply  the  above  law  in  the  present  matter it would appear that the attesting witnesses  were not  examined because they were not  alive  and will  has been proved by only  examining the  scribe as P.W.3. Though it has been stated by the  Scribe that he has drafted and typed the will  on  the  instructions  of  the  testatrix,  but  this  fact  appears to be false on the face of the document  itself;  There  are  many  suspicious  circumstances  appearing  on the  face of  document  which  go to  suggest that in fact, nothing was drafted or typed  by the scribe on the instructions of the testatrix,  

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but  a  typed  matter  was  placed  before  him  for  getting  it  registered  showing  as  the  will  of  the  testatrix. First of all, it would appear that though  the will  has ended in the very second sheet but  there is no space left  for signature of  the scribe  and  the  scribe  has  inserted  his  signature  in  between the last  two lines  by using an ink pen.  Secondly  it  appears  that  the  complete  date  like  18.8.1977 was not typed in the second page and  only -8-1977 was typed and figures like 18 have  been  inserted  by  an  ink  pen  showing  as  the  document  was  executed  on  18.8.1977.  EX.D-72  Muktarnama was also written  and signed on the  said date and the suspicious circumstance appears  that when this document (Muktarnama) was being  executed, the thumb impression over the alleged  will  was also  taken by  the  beneficiaries  and the  document writer was shown to be the Scribe of the  document whereas, in fact, the document was not  scribed by him. Another important circumstance is  that the original defendant namely Smt. Phoolbasa  had died on 20.9.1992 after  filing  of  her  written  statement on 14.7.1987. The date of execution of  the will is 18.8.1977 but there is no whisper of her  will in her written statement which she had filed on  the said date. Though it was not a requirement of  law, but under a normal human nature if she has  pleaded  the  detailed  administration  of  property,  vide para 9 of her written statement, right from its  acquisition by Shiv Ram to the date of filing of the  suit, (please see para 9 of the written statement).  She should have mentioned something about the  will, if this alleged will was in her knowledge and  she in  fact  had executed the  same in  favour  of  defendant no. 1 to 4. These circumstances which  are highly suspicious, have not been removed or  cleared by the beneficiaries of the will and only by  examining  the  scribe,  who  is  not  an  attesting  witness  and  whose  statement  is  not  very  satisfactory  in  appreciation  on  all  above  points,  particularly in the situation when the testatrix was  residing in the dominion of  the beneficiaries and  their father and was keeping a fiduciary relations  

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with them, it cannot be held that a due execution  of  will  has  been  proved  by  the  defendants  in  accordance  with  the  provisions  of  section  68  or  other provisions of  the Evidence Act. The finding  recorded by the court below that due execution of  the will  is  proved,  is  not in accordance with law  and the same is set aside. The will is held to be not  proved in this case.”

18. It  is  evident  from the  findings  recorded  by  the  High  

Court in the paragraph referred to hereinabove that the Will  

suffers  from  serious  suspicious  circumstances.   The  

execution of a document does not mean mechanical act of  

signing the document or getting it signed, but an intelligent  

appreciation of the contents of the document and signing it  

in token of acceptance of those contents.

19. Proof of a Will stands in a higher degree in comparison  

to other documents.  There must be a clear evidence of the  

attesting witnesses or other witnesses that the contents of  

the  Will  were  read  over  to  the  executant  and  he,  after  

admitting  the  same  to  be  correct,  puts  his  signature  in  

presence of the witnesses.  It is only after the executant puts  

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his  signature,  the  attesting  witnesses  shall  put  their  

signatures in the presence of the executant.

20. In  the  instant  case,  the  suspicious  circumstance  

appears to be that when the Will was being executed, the  

thumb impression over the alleged Will  was also taken by  

the beneficiaries and the document-writer was shown to be  

scribe  of  the  document,  whereas  the  document  was  not  

scribed by him.  However, late Phoolbasa Bai although filed  

written statement before her death, but she did not whisper  

anything  about  the  Will  in  the  written  statement.  

Admittedly, the Will was allegedly executed in 1977 whereas  

the written statement was filed some time in 1987.  Taking  

into consideration all these facts, we do not filed any error in  

the  conclusion  arrived  at  by  the  High  Court.   The  said  

finding, therefore, needs no interference by this Court.

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21. For the reasons aforesaid, we do not find any merit in  

these appeals which are accordingly dismissed.

…………………………….J. (M.Y. Eqbal)

…………………………….J. (Amitava Roy)

New Delhi, April 08, 2015.

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