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Onkar Prasad & Others v. Shanti Swarup - SECOND APPEAL No. 2281 of 1983 [2006] RD-AH 2722 (6 February 2006)


This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).


Judgment reserved on 12.1.2006

Judgment delivered on 06.2.2006


Second Appeal No.2281 of  1983

Sri Onkar Prasad & others Vs. Sri Shanti Swarup

Hon. Sunil Ambwani, J.

This defendants' second appeal arises out of a suit No.13 of 1978  for cancellation of  `will' dated 5.8.72 executed by late Shri Brij Lal and for joint possession over the land in dispute.  The suit was dismissed with the finding that Brij Lal  father of Onkar Prasad, defendant No.1, Shanti Swaroop and the plaintiff used to live with Onkar Prasad, had executed the `will' dated 5.8.72 with his free will and in sound disposing mind. That the suit was filed with malafide intentions, long after the plaintiff had came to know about the will.   The trial Court further found that the defendants are in possession of the land in dispute.  The suit was held to be barred by Article 59 of the Limitation Act  as it was filed three years after the knowledge of the execution of the will.

Civil Appeal No.23/1980 filed by plaintiff Shanti Swaroop against the judgment of the trial Court dated 20.11.1978 was allowed by Civil Judge, Aligarh on 21.9.83,  decreeing the suit for cancellation of `will' dated 5.8.72.  

The appeal was admitted on 6.10.83.  All the grounds raised in the memorandum of appeal to be treated as substantial questions of law arising for determination in the appeal.    There are seven grounds in the appeal out of which ground Nos.1, 2, 3, 4 and 6, were  certified by the then counsel appearing for the appellant to be substantial question of law.    Shri H.N. Sharma, learned counsel for the appellants submits that ground No.4 namely whether the defendants- appellants  have proved the execution of the will dated 5.8.72 by examining the attesting witnesses, and that  the lower appellate court acted illegally  in holding otherwise, is the substantial question of law to be considered in this second appeal.

Brief facts giving rise to the suit are that late Brij Lal, father of the plaintiff appellant  was bhumidhar  of the agricultural land in dispute, and after his death both the plaintiff and defendant succeeded him by virtue of law of succession applicable to them, and their names were so mutated in the revenue record.  Brij Lal was 90 years of age at the time of his death.  His mental condition was not stable.  He was not in a position to maintain his affairs and was depending on his sons.  The defendant No.1 is a clever person and that  about six months before filing of the suit the plaintiff came to know that defendant No.1 had got his name mutated in the revenue record; on the basis of will dated 5.8.72 alleged to be executed by Shri Brij Lal.   The five sons of defendant No.1, namely defendant No.2 to 6 threatened the plaintiff  that they shall not part with possession.  It was alleged that Late Brij Lal did not execute any will in the year 1972.    The plaintiff and his sons had always taken care of Brij Lal, who used to live them, and had no intention to disinherit them.     The defendant No.1 played fraud and had got a forged  will prepared.  Late Brij Lal did not have any intention to execute the will and to get it registered.    

The defendant filed a written statement alleging that defendant No.1 is  the younger brother of the plaintiff.  Their father late Brij Lal had executed will dated 5.8.72  in his free disposing mind and had got it registered.   The suit was filed on incorrect facts.    The plaintiff did not treat his father well and was never  in possession of the land.     Late Brij Lal had informed the plaintiff and his family about execution of the will on 5.11.76 and  on his death the defendant had made application for mutation over the land in dispute.   The plaintiff's wife  applied for cancellation of mutation order, which was rejected.  The appeal was also dismissed.  The testator late Brij Lal was the owner of the land  from before the abolition of zamindari, and that the plaintiff or defendant No.1 were not co-owners along with him.   The two animals possessed by Brij Lal had died during his life time.

The trial Court while deciding issue No.4 and 5 as to whether late Brij Lal had right to execute the will in respect of land in dispute and whether he was exclusive owner of the same, held that  Brij Lal was recorded in the khatauni (records of title) and defendant No.1 had admitted in his statement that he has no proof  for claim of 1/3 of land.  The land in dispute was not ancestral land. On issue No.1  as to whether the will dated 5.8.72 is fraudulent and is a manufactured document prepared by playing fraud, the trial Court held that the will, which is registered document bears signatures and thumb impression of Brij Lal at about five places on the document.   The registration of the will gives a presumption that document was executed him.  The will is attested by Hoti Lal Sharma and Shobha Raj, who were also present at the time of registration of the will.  The will was executed on 5.8.72.  Brij Lal died more than four years i.e. on 5.11.76.  The plaintiff did lead any evidence with regard to the willingness or the mental condition of the testator.  The will was executed in favour of the sons of defendant No.1.   The plaintiff's son Lajput Rai  was serving in the army and was posted in Laddakh on 5.8.72.  He could not establish the fact of fraud as he was not present at the time of execution of the `will' in the village.   He had not taken any steps to summon Shri Bhawani Shankar, scribe, Shri Hoti Lal Sharma and Baba Roshan Das the attesting witness of the will.  

The trial Court believed the statement of DW3, Onkar Prasad (defendant No.1) that the will was handed over to him after the death of his father in the presence of the plaintiff and since then the plaintiff had knowledge of the will.   According to the  plaint the plaintiff came to know about the execution of the will from Pradhan, who had orally informed him six months after the death of his father that the will was executed in favour of sons of defendant No.1.  The trial Court disbelieved that the plaintiff came to know about the will, after inspection of the document on 5.5.77 in a criminal case No.929/78 under Section 325 IPC.  In the statement of plaintiff's wife paper No. 39 `Ga',  it is suggested that she was aware that his father will leave the property in favour of sons of Onkar Prasad.  The trial Court thus held that all the circumstances pointed out that the will was validly executed and was registered, in accordance with law.

The appellate Court appreciated the same evidence and reversed the findings of the trial Court, regarding due and valid execution of the will.  The Civil Judge, Aligarh  found that the Brij Lal had four sons.   Apart from plaintiff and defendant No.1, his third son has died  and fourth son Jamuna Prasad renounced the world  at the age of 30-35.    He had no other property except the agricultural land.  In the khatauni of 1345 fasli,  khewat, and Form 23 and 24 of the Consolidation of Holdings Act (CH Act) Brij Lal was recorded along with Jamuna Prasad.  The land in khatauni of 1345 fasli was khudkast land and CH form 32 shows that he was given same plots, which were recorded in khatauni of 1345 fasli.  The plot Nos.946/1 and 951/1 were recorded as khudkast of Lalji father of Brij Lal.  CH form 42 shows that the plots allotted to Brij Lal were mostly the same, which were earlier recorded in the name of Brij Lal and his father and that he had inherited this land from his father.  The appellate Court thus found that  on the date of abolition of Zamindari his sons had acquired interest in the ancestral land and as such Brij Lal was not the sole owner of the land.  He did not have the capacity to transfer the entire land, after his death, through his will in  favour of sons, defendant Nos. 2 to 6.

The appellate Court further found that when Shobha Ram, the attesting witness of the will was produced, the original will was not filed on record.  Shri Shobha Ram, as such, could not have proved the document.  The defendant, Onkar Prasad appeared as a witness, thereafter,  and filed the original will.    He was not the attesting witness to have proved the document. The will was thus not proved in accordance with Section 68 of the Evidence Act and could not be read in evidence.  Once the plaintiff had challenged the will on the ground that  it was not executed by late Brij Lal, the defendant No.1 was required to prove the document on record.  The appellate Court allowed the appeal, and decreed the suit for cancellation of the `will', with intimation to Sub-Registrar, Hathras.

Learned counsel for the appellant has not challenged the findings about the ownership of the land and the right of the testator to execute the will as sole owner of the property.   The findings that plot No.946/1 and 195/1 were recorded khudkast land  in the name of Lal Ji father of Brij Lal and that the same plot came to be allotted to Brij Lal   and were so recorded in Form No.42 under U.P. Consolidation of Holdings Act, 1963,  established that the land was ancestral.  It  is a finding of fact.  The appellant has not taken a ground or alleged that it is beyond the pleadings or the evidence available on record.   The application dated 10.1.2006, filed after twenty three years to bring on record CH Form No.41 and 45, and  certified copies of Khataunies of few Fasli years, on the grounds that appellants were minors during relevant period did not fulfill the conditions under Order 41 Rule 27 CPC and was rejected on the date of hearing.

Once allegations are made that the will not executed by the testator, the person propounding  the will must satisfy the Court that it was executed by the testator.    In a suit by legal heirs of a person for declaration that the will disinherits one of the natural heirs and was result of forgery, the onus lies on the defendants to prove that it was the will of the deceased and it is desirable that all witness capable of being called should be examined.

The will requires attestation in law. Section 68 of the Evidence Act provides that a will cannot be used in evidence unless at least one attesting witness has been called for the purpose of proving its execution.  The proviso to Section 68 does not save a will from its proof by attesting witness, even if it is registered  in accordance with the provisions of Indian Registration Act 1908.

In the present case the original will was not on record when the attesting witness deposed of its execution.  It was filed by defendant No.1, as DW1 when he appeared in the witness box after the attesting witness.  The principle, which governed proof of will are well settled.  The mode of proving the will does not ordinarily differ from that and any other document except as to the special requirement of attestation prescribed under Section 63 (c) of the Indian Succession Act, 1925.   The will shall be attested  by two or more witnesses each of whom has seen the testator signed or affixed his mark on the will or has seen some other person sign the will in the presence and by the direction of the testator, and each of the witness shall sign the will in the presence of the testator.   It shall however, not be necessary that more than one witness is present at the same time.  No particular form of attestation is necessary.  

The will in the present case was not available on record when the attesting witness made an attempt to prove it. The will as such was not proved in accordance with Section 63 of the Indian Succession Act, 1925.  Once the will itself was not proved in accordance with law, the question whether the testator was in sound disposing mind, is not relevant at all.  The judgments cited by Shri Vinod Sinha namely Rabhubir Singh & another Vs. District Judge, Fatehpur & others, 1980 All. L.J. 630  and Jagdish Vs. Rajendra, AIR 1975 Allahabad 395, support the proposition of law.

The appellate Court, as such did not commit any illegality in decreeing the suit for cancellation of will and for joint possession. The substantial question of law regarding proof of the will is, as such, decided against the defendant- appellant. The second appeal is, consequently, dismissed, with no order as to costs.



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