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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.

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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

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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

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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

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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—

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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

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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.