YASHODABAI Vs. KUMARI RUKMAN

JUDGEMENT

(1.) SO far as the Will (Ex. P.1) is concerned, the learned counsel for the appellant could not successfully attack the same. Late Jankibai had earlier executed Will (Ex. P.2) on 5.11.1966, in favour of Kamlabai, the first wife of Tulsiram. Kamlabai died of bum injuries during life time of Jankibai. Therefore, Jankibai executed a second will on 17.11.1971 (Ex. P.1), in favour of the plaintiff which is the foundation of the present suit. In the present case, neither party has led any documentary evidence to prove title to the suit property. The plaintiff set up a case that Jankibai was in exclusive possession and ownership of the entire suit property. The defendants on the other hand came with a specific case, as stated by him in his oral statement in paragraph 12 of his cross -examination, that his father Jagan had acquired the suit property on the basis of a registered will executed by his aunt in favour of his father. He very categorically stated that that document of will is in his possession. The so called registered Will said to have been executed by the aunt of late Tulsiram in favour of his father Jagan having not been produced although admitted to be in possession of the witness, gives rise to an adverse inference against the defendants, that no such Will -was executed and Jagan had not acquired the suit property by any mode known to law.

(2.) THE second question that arises is whether the plaintiff is entitled to succeed on the basis of the Will Ex. P. 1 although she has not been able to produce any document of title in favour of the testator late Jankibai. This is a case where neither of the parties have been able to produce any document of title. The case has, therefore, to be decided on the basis of preponderance of probabilities about the ownership. The party proving better title shall succeed. There are documents on record in the shape of assessment register of the Corporation of Jabalpur showing payment of conservancy, case and water taxes. In regard to the houses No. 323, 323/1 to 323/11 Jankibai alone has been recorded. These are the documents Ex. P. 6 to Ex. P. 9. It is only in respect of houses No. 323/12 and 323/12 -A the name of Jagan appears in Ex. P. 10 and Ex. P. 11. If the property in the hands of Jankibai was joint Hindu family property acquired from Jagan, there was no apparent justification why the names of all the members of the family and particularly Jagan's son Tulsiram was not recorded in the Corporation records in respect of all the houses. The plaintiff's oral evidence, therefore, cannot be dis - believed that till her death houses No. 323 and 323/1 to 323/11 (in some portions of which tenants were residing) were exclusively owned and possessed by Jankibai. In the absence of any document of title, the ownership can be presumed to be with the person in actual possession and enjoyment of the property.