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In The Matter Of Goods Of Late Panna Lal - TESTAMENTARY SUITS No. 6 of 1999  RD-AH 2700 (6 February 2006)
Judgment reserved on 12.1.2006
Judgment delivered on_06.2.2006
Testamentary Suit No.6 of 1999
Smt. Ganga Devi ............... Petitioner
In the matter of the goods of
Late Panna Lal ......................Deceased
Hon. Sunil Ambwani, J.
Heard Shri R.B. Singh, learned counsel for the plaintiff and Shri Vishnu Sahai, learned counsel for the defendant.
This Testamentary Suit was initially registered as Testamentary Case No.19/98 on 18.8.98. On 24.9.98 the Court observed that since the plaintiff is a widow of the deceased, she is permitted, on a statement in her supplementary affidavit to pursue to proceedings without filing the original will, which was said to be in possession of the opposite party and also without naming the attesting witnesses in the will. It was stated in the petition in para 5 that Babu Lal son of Hajari Lal; Bhagwan Swaroop son of Babu Lal; Kali Charan son of Babu Lal, Brij Kishore son of Babu Lal have claimed title in the estate of the deceased Shri Panna Lal, who died on 3.6.93 on the basis of un-registered will dated 8.5.93 and have obtained ex-parte mutation order in their favour, which has been set aside. The plaintiff claimed letters of administration in respect of the estate of the deceased, which he possessed at the time of his death. A typed copy of the alleged will dated 8.5.93 executed by the deceased in favour of his nephews Bhagwan Swaroop, Laxmi Kant, Kali Charan and Brij Kishore sons of Babu Lal was annexed as Annex. No.1 to the petition. The affidavit of valuation described the properties namely khata No.246, khasra No.878 measuring 1.263 hectares, khata No.247, khasra No.1152 measuring 0.389 hectares; 1/2 share of the deceased in area No.0.826 at Rs.5 lacs and one house situated in village Karb, Pargana & Tehsil Mant Mathura for Rs.10,000/-.
Shri Laxmi Kant, one of the defendants filed a counter affidavit alleging that the deceased Panna Lal executed a will in his favour and other persons mentioned in paragraph 6 of the affidavit, on the basis of which the Tehsildar had ordered mutation in khatauni 1396 to 1401 Fasli. The plaintiff, Ganga Devi approached the revenue authorities for expunging the defendants' names. The matter was taken upto the Addl. Commissioner, Agra. The order is now under challenge in revision No.17 of 1997/98 in this Court. In addition, proceedings under Section 145 Cr.P.C. and 146 (1) Cr.P.C. were also initiated and the matter is pending in the criminal court. It is stated in paragraph 7 that suit No.483/96 for cancellation of the will executed in favour of the deponents is pending in which an amendment application has been allowed, against which the defendant and other persons preferred a revision, which was dismissed on 31.10.98. The plaintiff it is alleged concealed these facts from the Court. The plaintiff filed a rejoinder affidavit re-affirming that paragraph 8 of her affidavit is correct. She did not deny that she had filed suit for cancellation of will in favour of defendants.
By order dated 9.7.99 the matter was treated to be contentious and was registered as Testamentary Suit No.6/99. Following issues were struck between the parties:
"1. Whether the plaintiff Smt. Ganga Devi, widow of late Panna Lal is entitled to grant of letters of administration?
2. Whether Panna Lal had executed will dated 8.5.93 in favour of Babu Lal son of Hajari Lal, Bhagwan Swaroop son of Babu Lal, Kali Charan son of Babu Lal and Brij Kishore son of Babu Lal as claimed by them in respect of the property in dispute?
3. Whether the petition for grant of letters of administration is maintainable when the plaintiff has filed suit No.483 of 1996 for cancellation of the will alleged to have been executed by the deceased Panna Lal?
4. Whether this Court can adjudicate upon the validity in execution of the will alleged to have been executed by the deceased Panna Lal?"
The plaintiff filed a certified copy of plaint in suit No.483/96 (Annexure A-13). The defendant filed the documents namely treatment and prescription bills and receipts of medicines (13 vouchers) (Paper No.A-16/12), medical certificate (Paper No.17/1), certified copy of the suit No.456/1994-95 & order dt. 27.7.95 (Paper No.A-18/8), certified copy of Report-Chalani u/s 107/116 Cr.P.C. Raya District Mathura (Paper No.A-19/1), certified copy of the complainant u/s156-(3) Cr.P.C. (Paper No.A-20/5), certified copy of the Commissioner order dated 25.9.95 (Paper No.A-21/1), certified copy of the High Court order dt. 5.1.96 (Paper No.-A22/2), certified copy of the High Court order dt.9.4.1997 (Paper No.A-23/1), certified copy of the Commissioner order dt.1.5.97 (Paper No.A-24/3), certified order dt. 19.1.1998 (Paper No.A-25/3), certified copy of the High Court order dt. 31.3.1998 (Paper No.A-26/2), certified copy of the Pa. Ka.-11 on record, in the testimanty suit (Paper No.A-27) and certified copy of the order dated 12.5.98 u/s 145 and 146 Cr.P.C. (Paper No.A-28/2). The defendants have filed a certified copy of plaint in Original Suit No.483/96 (Paper No.A-13) as the only document in evidence.
Plaintiff examined Nathi Lal and Shri Ganga Prasad as PW1 and PW2. Both these witnesses were examined on 31.7.2000. The defendant examined Dau Dayal, a blind person, as attesting witness to will dated 18.5.93 as DW-1 and Ram Dayal, the other attesting witness to the will as DW-2. Both these witnesses were examined on 16.10.2000.
Shri Vishnu Sahai and Shri Anshu Chaudhary, counsels for the defendants filed an application (A-38) dated 20.10.2003 i.e. after three years of concluding the evidence with a prayer to stay further proceedings in the Testamentary Suit on the ground that the Original Suit No.483/96 filed by the same plaintiff Smt. Ganga Devi Vs. Babu Lal, filed prior to filing of this Testamentary Case, is pending in the Court of Civil Judge (JD), which is a Court of competent jurisdiction. They have also requested to summon the original will filed in mutation case No.239R/351T/701T/23.9.2002 before the Tehsildar Mant District Mathura, a certified copy whereof has been filed in the Original Suit No.483 of 1996. The other certified copy was filed as Annex.No.3 in these proceedings with an application. A counter affidavit has been filed to this application stating that the present suit is a suit for letters of administration, to which reply was given and evidence has been led without raising any objections. The matter has reached the stage of final hearing in this higher Court and thus the matter be decided on merits.
On 25.4.2005 Sri Anshu Choudhary, counsel for the defendants filed a supplementary rejoinder affidavit stating that there is no reason to continue with parallel/ multiple proceedings and thus the present testamentary suit is liable to be stayed under Section 10 of Code of Civil Procedure.
I find that the Court had taken notice of filing of suit No.483/96 on 19.8.99, when the issues were struck between the parties and that issue No.3 calls for a decision from this Court whether this petition for grant of letters of administration is maintainable when the plaintiff has filed suit No.483/96 for cancellation of will alleged to have been executed by the deceased Panna Lal. I propose to decide this issue as preliminary issue and thereafter, to decide other issues.
Issue No.3 and 4
Learned counsel for the defendants states that the plaintiff has filed original suit No.483/96 for cancellation of the will alleged to have been executed by her deceased husband Panna Lal in favour of his nephews. The suit was filed in the competent Court prior to the filing of the testamentary case. This testamentary suit, as such according to the defendant, must be stayed under Section 10 of the Code of Civil Procedure, as no Court can proceed with the trial of any suit in which the matter and issue, is also directly and substantially in issue in a previously instituted suit between the same parties. Section 10 CPC according to him takes away the jurisdiction of this Court to proceed with the trial of this testamentary suit
This suit for cancellation of will dated 8.5.93 in favour of the defendants was filed under Section 9 CPC. The plaintiff also has a remedy to file this testamentary case for letters of administration of the estate of her deceased husband. When her claim for letters of administration was objected, she filed rejoinder affidavit denying the execution of the will by her deceased husband. The testamentary case, praying for letters of administration was then converted into suit. These two remedies though appearing to overlap are under two different statutes and since the conditions specified therein are satisfied, the plaintiff cannot be denied relief, in the testamentary suit, on the ground that she has filed a suit for cancellation of sale deed prior to filing of this testamentary case.
Further I find that the petition for grant of letters of administration, cannot be stayed as the Civil Court does not have jurisdiction to grant such relief. The Civil Court may, decide the question about the validity of the will but having done so it cannot issue letters of administration as the power to give such relief is available only with the High Court.
Section 10 CPC lays down a rule of procedure. It does not vest any substantive right in the parties. It also does not affect the jurisdiction of the Court trying the second suit. The parties can, as such, waive such objection. Where the parties have consented to the later suit being tried, they cannot subsequently turn around and challenge the trial to proceed, invoking Section 10 CPC. In the present case the defendants in their counter affidavit set up the will dated 8.5.93 in their defence. They also informed the Court that the plaintiff has filed suit No.483/96 for cancellation of the same will. They, however, did not choose to apply for stay of the proceedings in this testamentary suit, and chose to file documents and lead evidence in proof of the will. The defendants did not raise objections to the proceedings in the testamentary suit for about seven years. It is only when the testamentary suit came up for final hearing that an objection was raised to stay the proceedings. It is admitted to the parties that evidence has not been led in suit No.483/96 pending in Civil Court. The issue whether the petition for grant of letters of administration is maintainable when the plaintiff has filed suit No.483/96 for cancellation of the will, alleged to have been executed by the deceased Panna Lal in favour of the defendants, is not an objection taken to stay the suit under Section 10 CPC. The issue framed between the parties is to the maintainability of the suit, and not the stay of the trial of the testamentary suit. The defendants, as such, is found to have waived their right for stay of the trial of the suit. They led the evidence, without any protest, in proof of the will and are thus estopped from raising the plea of stay of this testamentary suit under Section 10 CPC.
As observed earlier letters of administration can only be granted by the High Court and thus I hold that this petition for grant of letters of administration is maintainable and that this Court has power to adjudicate upon the validity of the will alleged to have been executed by the deceased Panna Lal, set up in defence to the claim for letters of administration.
The defendants filed a written statement alleging that the plaintiff is not entitled to letters of administration of the estate of her deceased husband as the deceased had executed a will dated 8.5.93 in favour of Bhagwan Swaroop, Laxmi Kant, Kali Charan and Brij Kishore all sons of Shri Babu Lal resident of village Karab, Tehsil and Pargana Mant, District Mathura. They are nephews of the deceased. This will has been challenged by the plaintiff in original suit No.483/96, which is still pending and in which evidence has not been led. While deciding issue No.3 and 4 I have decided that inspite of pendency of suit No.183/96, this suit is not liable to be stayed, and that this Court can proceed to decide the suit in accordance with law.
The defendants have not filed the original will, which they have set up in defence to the claim of the widow for letters of administration by way of an caveat. An application was filed on 12.12.2005, the date fixed for hearing of the suit under Order 11 Rule 14 read with Order 13 Rule 1, 2 and 10 and Section 151 CPC for summoning the original will filed in the Court of Tehsildar Mant, District Mathura. This application was rejected on 12.1.2006, the date when the matter was heard, by following order:
"This is an application under Order 11 Rule 14 read with Order 13 Rules 1, 2 & 10 and Section 151 C.P.C. and for summoning original will which was filed in the Court of Tehsildar, Maath, District Mathura in case No.701T/140R between Bhagwan Swaroop and others Vs. Panna Lal and others.
Issues were struck and evidence was concluded in this on 16.10.2000. The defendants had not made any prayer in the caveat application or thereafter to summon the original will set up by him. This application filed at the state of hearing on 12.12.2005 is accordingly rejected."
The original will set up by the defendants in defenc e is, as such, is not on record.
The defendants, chose to lead evidence to prove will dated 8.5.93. Dau Dayal, DW1 stated that he is not blind from birth. He lost his eye site at the age of 12 years. He knew Panna Lal, who did not do anything and that agriculture was looked after by his younger brother Babu Lal. Babu Lal did not acquire any property of his own. The entire property was ancestral. The village was under consolidation operations in 1964-65 and that Panna Lal and Babu Lal had joint holding. Panna Lal decided to execute the will, which was so executed on 18.5.1993. His wife was alive but there was some differences between the relatives and thus he wanted to execute the will. Shri Nathi Lal, Jagdish and Praye Lal were his brothers in laws. The witness stated that he was attesting witness to the will. In 1996 a suit was filed in the Civil Court in which evidence has not been led and that he proposed to give evidence in the suit. Panna Lal and his wife had three daughters, who are all married. His daughters had no objection to the execution of the will. In the cross examination the witness stated that Panna Lal was his neighbour. He died on 3.6.93. At the time of execution of the will he was 70 years old. The witness admitted that he was blind at the time of execution of the will and had affixed his thumb impression on the will. He had got the will read to him before affixing his thumb impression. Panna Lal's son Kamlesh had written the will. A case was filed against him and Ram Dayal under Section 420 IPC in which final report was given. In this case Laxmi Kant, nephew of Panna Lal had gone to jail but the final report was submitted in the case.
Shri Ram Dayal, DW2 stated that his village is quite large with population of 12,000. He knew Panna Lal, who had desired to execute the will and that he is a witness to the will. A suit for cancellation of will is pending in the civil Court in which he will give his evidence. It is wrong to say that any fraud was played upon him signing the will. Shri Nathi Lal, brother in law of Panna Lal had approached him many time and has demanded money. In the cross examination he stated that he knew Panna Lal as he was acquainted to him. He does not know as to when Panna Lal died. Panna Lal had executed the will in faovur of his nephews. He has gone to attest the will on the request of Panna Lal. He does not know whether the will was registered. The will was valid and was not fraudulent. Ramesh is Bania by caste. He had written the will and had read it out. The will was written in 1993. Nathi Lal used to visit his sister. He sometimes used to visit Panna Lal, who had rebuked him. There were some altercations between them. A case under Section 420 was initiated in respect of the will in which Panna Lal, his nephew, his brother and the evidence were accused.
Shri Nathi Lal and Shri Ganga Prasad were examined as PW1 and PW2. Shri Nathi Lal, PW 1 stated that he is brother of Ganga Devi, who was married to Panna Lal by Hindu rites. Panna Lal had three daughters. He had no son. He was not well for about a month and then died on 3.6.93 in village Karam, district Mathura. He has not executed any will during his life time. After his death sons of his brother Babu Lal prepared a forged will. In the cross examination he admitted that Panna Lal's wife Ganga Devi has filed a suit for cancellation of will, which is still pending. He does not know whether the suit is numbered as Suit No.483/96. He has not given his evidence in the suit and had no further knowledge about this suit. Ganga Prasad, PW-2 stated that Panna Lal had three daughters. He died due to illness. He had not executed any will. After his death sons of Babu Lal, his brother prepared a forged will in respect of which a suit is pending in the Court. In the cross-examination he stated that he does not whether Panna Lal had a brother other than Babu Lal. He does not know about the profession of Panna Lal. Panna Lal had ancestral properties. He is not aware whether Panna Lal had acquired any property on his own or there was any partition between him and Babu Lal. Babu Lal used to live separately. Ganga Devi has filed a suit in respect of will. Ganga Devi is wife of Shri Panna Lal. The witness deposed that he had not given his evidence in the suit.
Section 63 of the Indian Succession Act (The Act) providing for execution of un-privileged wills, reads as follows:
Execution of unprivileged Wills- Every testator, not being a soldier employed in an expedition or engaged in actual warfare [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:-
(a)The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b)The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c)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 been some other person sign the Will, in the presence and by he direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark or 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.
In the present case the original will has not been filed on record. The defendants were fully aware that the original will is not available on record and that issue has been struck between the parties on 19.8.99 about execution of the will. They waited till the entire evidence was recorded and concluded. They did not take any steps to summon the original will and have made an application, after 6 years, on the date of hearing of the suit, to summon the document, which is the basis of their defence. The application was rejected on 12.1.2006.
Both the witnesses to the will namely Shri Dau Dayal, who is blind and Shri Ram Dayal, have not deposed that the testator signed the will in their presence or that they had signed the will in his presence. The will under Section 68 of the Evidence Act is a document, which requires attestation. It cannot be proved unless the attesting witness, depose of the due execution of the will as provided under Section 63 of the Succession Act. Section 63 (c) provides that the will shall be attested by two or more witness each of whom has seen the testator signed or affixed his mark on the will. The witnesses to the will have not made any such statement that the will was signed by the testator in their presence and that they signed in his presence. It was admitted by Shri Dau Dayal that he was blind, at the time, when the will was executed. It was read out to him, and he has affixed his thumb impression on the will. A blind person will not qualify as an attesting witness to the will as he is not in a position to see the testator signed or affixed his mark. The word `seen' in Section 63 of the Act requires the attesting witness to be capable of seeing through his eyes, the testator to have signed or affixed his mark to the will or has seen some other person sign the will in the presence on the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark. The words `personal acknowledgement of his signature or mark,' substitute the act of the testator signing or affixing his mark. The requirement in law for proof of the will does not end here. It further provides that each of the witness shall sign the will in the presence of testator. Even if a blind person may have got the acknowledgement from the testator by his words spoken by mouth, it is further required that the witness sign the will in the presence of testator. Dau Dayal, DW-1, a blind person has nowhere stated in his examination in chief or his cross examination that Panna lal had by words spoken to him acknowledged to have signed on the will in his presence, nor has he stated that he had affixed his thumb impression on the will in the presence of testator. Shri Ram Dayal, DW-2 has also not stated either in his examination in chief or in his cross-examination that the testator had signed on the will in his presence and that he had signed on the will in the presence of the testator.
The will, therefore, which has not been produced in original, has not been proved by the attesting witness, and thus I hold that the execution of the will is not proved in accordance with Section 63 of the Succession Act. It cannot, therefore, be set up in defence to the prayer for grant of letters of administration to the widow of the deceased. The issue, as such, is decided against the defendants and in favour of the plaintiff.
It is not denied that plaintiff Smt. Ganga Devi is the widow of the deceased. Shri Vishnu Sahai, learned counsel states that in her petition for grant of letters of administration she had concealed the filing of the suit for cancellation of sale deed and had made a wrong statement that she is issue less widow of the deceased. The witnesses and Shri Panna Lal himself have stated in his will that he had three daughters. The suit, as such is liable to be dismissed for making false statement and concealing relevant facts from the Court.
In the counter affidavit of Shri Laxmi Kant, he has nowhere stated in paragraph 4 in reply to para 3 of the plaint that deceased had left behind three daughters. I have already found that alleged will dated 8.5.93 has not been proved in accordance with law and therefore, no reliance can be placed upon the statement made in the will. This leaves the statement of Shri Dau Dayal, a blind person, DW-1, who has stated in his examination in chief that Panna Lal had three daughters in his family apart from his wife, who are all married. Shri Ram Dayal, DW-2 has not made any statement with regard to the daughters of deceased Shri Panna Lal. Shri Nathi Lal and Shri Ganga Prasad have stated in their examination in chief that Panna Lal had three daughters.
The citation was published in newspapers. No objection has been filed. The daughters under U.P. Zamindari Abolition and Land Reforms Act, 1951 do not succeed to the agricultural properties of a male tenure holder, prior to its amendments.
The parties did not desire to frame any issue with regard to the effect of Panna Lal leaving behind any daughters. I find that even if it is established that he has left behind three daughters, it will not affect these proceedings in any manner whatsoever.
Shri Vishnu Sahai then contended that the fact that the petitioner had concealed filing of the suit for cancellation of will should not entitled her to any relief in these proceedings. The suit is pending in the Court of Civil Judge (JD). The plaintiff had stated in her statement that the defendant have claimed title on the basis of a will, to which she had filed objections in mutation proceedings. She did not deny the filing of the suit in her rejoinder affidavit. Once a widow is seeking letters of administration to the estate of her deceased husband, to which objections have been filed by the persons claiming will in their favour, this Court is called upon to decide whether the will is genuine and was executed by the testator in his free disposing mind. The parties have led evidence in this suit without any reservations and have submitted to the jurisdiction of the Court. The will has not been proved in accordance with Section 63 of the Succession Act and as such the plaintiff cannot be non suited on such ground and is held entitled to reliefs claimed in the suit.
The suit is consequently, decreed in favour of the plaintiff. The plaintiff shall be granted letters of administration to the estate of her deceased husband late Shri Panna Lal, who died on 3.6.93, upon her she submitting the administration bond along with Court fees to be determined by the Registrar General in accordance with the rules of the Court. The plaintiff shall also be entitled to the cost of the suit.
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