SHAKUNTALA BAI Vs MAHAVEER PRASAD
Bench: R.K. AGRAWAL,AMITAVA ROY
Case number: C.A. No.-001630-001631 / 2010
Diary number: 27923 / 2007
Advocates: MADHURIMA TATIA Vs
SUMITA HAZARIKA
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{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
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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
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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
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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
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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.
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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
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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.
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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
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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
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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
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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
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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
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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
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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.
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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