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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