CHANDRAKANTA JAISWAL Vs. LEELA BAI AND OTHERS

JUDGEMENT

(1.) THIS is an appeal filed against judgment dt. 8 -12 -1999 passed in Civil Suit No. 23 -A/99 by IInd Addl. District Judge, Hoshangabad dismissing the suit filed by the plaintiff/appellant for declaration that the registered Will dt. 5 -1 -1995 was void. The plaintiff filed a suit for possession, declaration and mesne profit. The plaintiff was the only legal heir of the deceased Durga Prasad, she was residing separately from her husband at village Raipur. Plaintiff's father and uncle; Kaluram/defendant No. 3 purchased plot in area 2000 sq.ft. vide registered sale -deed dated 3 -6 -1998 from one Shri Babu Bhupendra Kumar Verma. The name of Kaluram Chouksey was also mentioned in the sale -deed. Entire consideration was paid by her father Durga Prasad. A House was constructed on the plot in question. Thereafter there was partition between Durga Prasad and Kaluram. One of the portion came to the share of Durgaprasad and other portion was given to Kaluram. It was further averred that Durga Prasad was ailing, taking advantage of this, one of the Will was got executed on 21 -12 -1981 and thereafter another Will dt. 19 -2 -1983 was obtained which was registered on 21 -2 -1983 it was in favour of Lila Bai and Anil Kumar. Wife of Durga Prasad had died in his life time. The earlier Wills were cancelled. Thereafter Lila Bai and Anil Kumar again started looking after Durga Prasad and they again got executed a Will dt. 5 -1 -1995, at that time Durga Prasad was not in a position to understand the contents of the Will and used to remain ill and ultimately died on 14 -9 -1997. By way of amendment, plaintiff denied the execution of acknowledgment dt. 7 -6 -1994. It was also submitted that by playing fraud on Durga Prasad Will was got executed. One after the other several Wills were got executed. Thus, the Will and so -called acknowledgment were void. Defendants No. 1 and 2 obtained possession of the house after death of Durga Prasad, hence, the suit was filed for declaring the Will dt. 5 -1 -1995 to be invalid, for restoration of possession and for mesne profit.

(2.) THE defendant in the written statement contended that the plaintiff was residing with her husband. Her family was well settled. There was partition of the house. Southern portion of the house came to the share of Durga Prasad, 3 Wills were executed by Durga Prasad, without any undue influence initially the Will was executed on 21 -12 -1981. One of beneficiary was Harishanker, he died as such another Will was executed on 19 -2 -1983 which was registered on 21 -2 -1983. Kaluram Chouksey and his family used to look after and respect Late Durga Prasad. After the Will dated 19 -2 -1983 as additional construction was made, as such it became necessary to execute the fresh Will, which was registered also. He died after more than two years on 14 -9 -1997. No fraud was played. Deceased executed the Will fully understanding its contents. He has executed the Will out of his own volition. Hence, it was prayed that the suit be dismissed. Both the parties adduced evidence oral and documentary. The trial Court on due consideration of evidence has found that the execution of the Will has been proved. No fraud was played while the Will dated 5 -1 -1995 was executed, it was not illegal or void. The house in question was not given in gift to the husband of the plaintiff at the time of marriage. Thus, plaintiff was not entitled to recover the possession of the house. Suit has been dismissed. Consequently, the plaintiff has preferred this appeal. Shri Umesh Trivedi, learned counsel on behalf of the appellant has submitted that the due execution of the Will has not been proved as required under section 63 of the Indian Succession Act, 1925, section 3 of Transfer of Property Act and section 68 of the Evidence Act. The sole attesting witness Daulat Singh (DW -3) has not stated that he had signed in presence of deceased and another attesting witness also signed in his presence and in the presence of Durga Prasad the testator, as such due execution of the Will has not been established. He has further submitted that the deceased was under an influence of the liquor, he was ailing, as such taking undue advantage of the situation the execution of Will was obtained. There was no reason to exclude the only daughter from succession. It was also a suspicious circumstance attached to execution of the Will. There was no reason for deceased. Durga Prasad to exclude the only daughter from the succession. Thus, the finding recorded by the trial Court that the due execution of the Will has been established is perverse.

(3.) IT is submitted by Shri Imtiaz Hussein, learned counsel appearing on behalf of the respondents/defendants that not only one, but, several Wills were executed by the deceased, in favour of the defendants, he intended in his life time to give the house to the defendants No. 1 and 2, execution of the Will has been admitted even by the plaintiff, she has stated that she was informed by her father that the Will had been got executed by the defendants. Even in the plaint it was not disputed that the deceased had signed the Will. A plea that he was ailing was raised, thus, he was not able to understand the nature of documents, that plea has not been established. As such no case for interference in this appeal was, thus, made out. First question for consideration is whether due attestation of the Will has been established? Shri Trivedi has referred to the statement of Daulat Singh the attesting witness of the Will dt. 5 -1 -1995, he has clearly stated that Sarvanlal Sharma the scribe of the Will, reduced it in writing on being asked by Durga Prasad, he was present at that time, Kaluram, Anil Kumar and Durga Prasad were present, the Will was read by Durga Prasad and thereafter he had signed it, besides Anil Kumar, it was also signed by the scribe. Thereafter they went to the office of Sub -Registrar, Registration for the purpose of getting the Will registered. Shri Umesh Trivedi, learned counsel for the appellant has submitted that Daulat Singh has not stated that he had signed in presence of Durga Prasad, similarly it has not been stated that Anil Kumar signed in the presence of Durga Prasad. The, requirement of attestation as per section 63 of the Indian Succession Act has not been established. Section 63(c) requires that the Will shall be attested by two or more witnesses each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time and no particular form of attestation shall be necessary. Thus, the requirement under section 63(c) of Indian Succession Act is that the testator should have signed in the presence of attesting witnesses and each of the witnesses shall sign the Will in the presence of the testator. Similar is the requirement of section 3 of the TP Act. Definition of "attestation" is pari -materia to section 63(c) of the Indian Succession Act. Section 68 of the Indian Evidence Act, 1972 provides that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving it's execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.