RAJEEV KUMAR Vs. SUSHIL KUMAR

JUDGEMENT

(1.) THIS is defendant's appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code), challenging concurrent findings of fact recorded by the courts below. The Learned Civil Judge while decreeing the suit in favour of plaintiff-respondent for separate possession by way of partition to the extent of 1/7th share in the suit property has held that one Ajit Ram was earlier owner in possession of the property in dispute. He died on 10.5.1973 leaving behind the plaintiff-respondent No. 1 and defendant-respondents No. 2, 3, 4 & 5 as his sons and defendant-respondents No. 6 and 7 as her daughters. He was also survived by his widow known as Prasani Devi. Even Prasani Devi died on 8.9.1988. The Civil Judge has further found that will dated 15.5.1973 Ex. DA was propounded by the defendant-appellant which is surrounded by suspicious circumstances. The suspicious circumstances are that the will is recorded on an ordinary paper on 10.5.1973 in favour of Rajiv Kumar, grand son of Ajit Ram. The will did not see the light of the day for over twenty years till 8.1.1994 when the same is claimed to have been handed over by one Amar Chand an old man, who is stated to be a friend of Ajit Ram. The will has never been entered in any record of the Corporation till the date of its production. No explanation has come as to why the will was with-held by him for a long period of 20 years. The will has not been shown to the father of Rajiv Kumar, who was admittedly staying with him and the will is made to the exclusion of natural heirs. It was in these circumstances that the will has been found to be surrounded by suspicious circumstances and the same has been discarded.

(2.) THE learned Appellate court has affirmed the findings of the Civil Judge. It is further pointed out that Ajit Ram died 5 days after the execution of the will. The will is dated 10.5.1973 and Ajit Ram died on 15.5.1973. The learned District Judge dealt with this aspect and observed as under :-

(3.) I have thoughtfully considered the submissions made by the learned counsel for the defendant-appellant and regret my inability to accept the same. The onus to prove the will is squarely was on the defendant-appellant, who had propounded the will. It was his duty to dispel the lurking doubts entertained by the courts below. The delay of more than 20 years in producing an important document, like the will coupled with numerous other factors can constitute a basis for concluding that the will is surrounded by suspicious circumstances and is thus liable to be discarded. In the case of Guro v. Atma Singh and others, 1992(2) RRR 26 (SC) : 1992(2) SCC 507, the Supreme Court has held that will can be proved by showing testamentary capacity and signature of the testator in addition to satisfying the requirement of Section 63 of the Indian Succession Act, 1925. It has further been pointed out that shaky signatures, a feeble mind, unfair and unjust disposal of property etc. would be suspicious circumstances. The observations of their Lordships in this regard read as under :-