Dismissed

Shyam Bahadur Singh v. Kaula Devi (Since Deceased) and 3 Ors.

Allahabad HC23 Oct 2018SAPL/974/2018

Case brief

AI extract

What is this about?

In this second appeal challenging a decree cancelling a Will, the High Court upheld the trial court's finding that the Will was executed by impersonation. Citing suspicious circumstances and the beneficiary's failure to produce expert evidence rebutting a handwriting report, the appeal was dismissed.

What did the court decide?

The second appeal was dismissed; the original decree confirming the invalidity of the Will was upheld.

Shyam Bahadur Singh Vs Kaula Devi (Since… — Succession and Inheritance | Allahabad HC (2018)

A.F.R.

Court No. - 26

Case :- SECOND APPEAL No. - 974 of 2018

¶5

Appellant :- Shyam Bahadur Singh Respondent :- Kaula Devi (Since Deceased) And 3 Ors Counsel for Appellant :- Ashutosh Pandey,Shashi Prakash Misra Counsel for Respondent :- Kshitij Shailendra

¶6

Hon'ble Ajit Kumar,J.

¶7

Heard learned counsels for the parties.

¶8

This second appeal under Section 100 of Code of Civil Procedure, 1908 is directed against the judgment dated 31.07.2018 and decree dated 10.08.2018 passed by Additional District Judge-1st, Basti in Civil Appeal No. 318 of 1986 confirming the judgment and decree dated 23.09.1986 passed by Munsif, Basti in Original Suit No. 320 of 1983.

¶9

According to the plaint case, Jamuna Singh, died on 03.12.1982 issueless and consequently, plaintiff no. 1 being real sister succeeded the rights in bhumidhari property. According to her, defendant Shyam Bahadur Singh has no right and by impersonation, he got a Will executed and registered on 03.12.1982. Since, the Will was a forged and fabricated document and got registered by impersonation, it was null and void and was having no binding effect upon the plaintiff and hence the suit declaring the document of Will to be null and void and be cancelled as such. It is also alleged in the plaint that the defendant-

¶10

¶11

appellant was not in possession over the suit property.

¶12

The defendant-appellant, on the other hand, contested the suit and denied the plaint allegations altogether and took special plea that the Will deed was validly executed in his favour and after death of Jamuna Singh, the testator, he became an absolute owner in possession of the property bequeathed under the Will. He also stated that he is brother (cousin) in relation of Jamuna Singh and since Jamuna Singh, in last days of his life, was living with him and he was rendering his services to Jamuna Singh quite selflessly, it was out of sheer love and affection that Jamuna Singh executed Will in his favour qua his property. He also stated that the plaintiff is a greedy person and she never took care of late Jamuna Singh and even had earlier filed a suit to declare him as insane during life time of Jamuna Singh but the suit was ultimately dismissed on 17.09.1977. It is thus, the present suit has been filed.

¶13

The parties led their documentary as well as oral evidence. Since the plaint allegation was that Jamuna Singh had never executed Will as he never signed the Will and Will was got executed by impersonation, the initial burden lay upno the plaintiff to prove that the Will was not signed by the Testator.

¶14

In support of the plaint allegations, the plaintiff-respondent no. 1

¶15

¶16

deposed herself as PW-1 and also filed the Handwriting Expert's report in respect of thumb impression that the Will carried. The sale deed was also brought on record which was admitted to the parties to have been executed by Jamuna Singh, the testator on 31.05.1965 in favour of Anwar, Ajmat Ali and Alid Ali which is paper no. 47-A. According to the Handwriting Expert's report, the thumb impression, that was on the document of sale deed dated 31.05.1965, paper no. 47-A, totally deferred from the thumb impression alleged to have been made by the testator on the Will in question. Since, the document of sale deed, as admitted to the parties, carried the original thumb impression of Jamuna Singh and the document of Will deferred from that in respect to the thumb impression, the onus was shifted upon the defendant to produce Handwriting Expert to rebut the report or to give any evidence in support of claim that it was not a Will by impersonation but was in fact executed by Jamuna Singh.

¶17

The date was fixed for evidence of defendant on 25.04.1986 but nothing was done by the defendant-appellant. On 15.05.1986 again, no pairvi (effort in law) was done and the case was fixed for hearing on 20.05.1986. On 16.05.1986 the defendant-appellant moved an application (paper no. 87-C) for recalling of order dated 15.05.1986 by which the case was directed to be put up for hearing on 20.05.1986. The trial court, on 16.05.1986 recalled its order dated 15.05.1986 and

¶18

¶19

gave further time to the defendant-appellant to adduce evidence of Handwriting Expert fixing 07.07.1986. On 07.07.1986, the defendantappellant moved another adjournment application (paper no. 93-C) and 09.07.1986 was fixed for the evidence of DW-3 and DW-4. Their statements were recorded and 21.07.1986 was fixed for hearing. On 21.07.1986 since Presiding Officer was on leave, so matter could not be heard and 30.07.1986 was fixed. On 30.07.1986 no witness was produced by the defendant-appellant nor, any Handwriting Expert report was submitted nor any Handwriting Expert was produced and instead paper no. 100-C adjournment application was moved. Even this time request for adjournment was accepted and then 25.08.1986 was given as a long date to enable the defendant-appellant to submit Handwriting Expert's report and to produce the Expert. Again on 25.08.1986 paper no. 102-C adjournment application was moved by the defendant-appellant. This adjournment application was rejected and 28.08.1986 was fixed for argument. On 28.08.1986 again defendantappellant moved application for adjournment (105-C) under Order 18 Rule 17 read with Section 151 Code of Civil Procedure, 1908 on which 11.09.1986 was fixed, and yet again on this date no expert was produced nor, any report was submitted and DW-3 and DW-4 were produced for cross examination and they were cross examined by plaintiff's counsel fixing 17.09.1986. On 17.09.1986 again the defendant-appellant moved an adjournment application paper no. 109-

¶20

¶21

Gha on the ground that he wanted to produce the Handwriting Expert.

¶22

Considering the over all conduct of the defendant that he was just seeking adjournment after adjournment and instead of producing the handwriting expert for which he was seeking evidence he was producing one witness or the other and even those witnesses were examined and cross examined, the court concluded that defendant was not producing the Handwriting Expert or his report and was virtually not able to do so and so application for adjournment was rejected on 17.09.1986 and 22.09.1986 was fixed for hearing and on that date case was finally heard.

¶23

Thus, the trial court concluded that as far as Handwriting Expert's report, which was submitted by the plaintiff, was final in the sense that, it remained unrebutted and further the document paper no. 47-A being admitted document to the parties, the court was itself in a position to match the two documents for the purposes of thumb impression etc. The court ultimately, after comparing the two dcuments concluded that the document paper no. 47-A bears the signatures of Jamuna Singh and also the thumb impression and held that the reason for doubting the Will is that while admitted document carried the signature of Jamuna Singh on 47-A, the disputed document did not bear the signature and secondly that the report of PW-3 Radha Krishna Sahai remained unrebutted.

¶24

¶25

Thus, evaluating both oral and documentary evidence, the Court concluded and thus hold that the Will was a document fraudulently executed by way of impersonation and Jamuna Singh never signed such document nor, executed the same.

¶26

In view of the above, the trial court decreed the suit and cancelled the document of Will dated 30.11.1982.

¶27

The defendant-appellant filed regular appeal challenging the findings returned by the trial court. In appeal, the court below framed three issues and answered all the three issues in favour of plaintiff and negatived the appeal of defendant-appellant. The court, while concurring with the findings of trial court, on the question of validity of document of Will, has held that not only the expert report had remained unrebutted but even from the close scrutiny of two documents and its perusal from bare eyes the trial court did not commit any manifest injustice in concluding that the document of Will was in fact not executed by late Jamuna Singh.

¶28

Raising substantial questions of law with regard to proof of Will, counsel for the appellant has strenuously argued that the only thing in law required is that the Will should be proved as per Section 68 of Indian Evidence Act. According to him once he has produced the attesting witness before the trial court and he has proved execution of

¶29

¶30

Will it is sufficient for the Court to raise presumption qua the validity of the Will. He further argued that the handwriting expert opinion is not of binding nature but is only advisory in character and therefore, court below manifestly erred in relying upon the expert opinion.

¶31

Learned counsel for the appellant in support of his argument has relied upon a judgment of this Court in Tikaram and others vs. Daulat Ram and others (2013) 8 ADJ 617 . Learned counsel for the appellant has also placed reliance upon a judgment of Supreme Court in Janki Narain Bhoir v. Narayana Namdeo Kadam (2003) 3 AIC 139 (SC) = Laws (SC) 2002 1241 .

¶32

Per contra, the argument advanced by learned counsel for the plaintiffs-respondents is that while it is true that Will is required to be proved by producing an attesting witness but this evidence is rebuttable. Apart from that the court is also entitled to go into the question as to whether Will was executed in any suspicious circumstances or not. Learned counsel for the respondents has placed reliance upon Gurdial Kaur & Ors v. Kartar Kaur & Ors AIR 1998 SC 2861, Chander Singh v. Chottu Lal AIR 1994 Raj 186 .

¶33

There is no quarrel about the legal preposition as discussed in the judgments relied upon by the appellant that the Will is required to be proved in the manner prescribed under Section 68 of Indian Evidence

¶34

¶35

Act and once attesting witness is presented and he acknowledges its execution before him, it is worth presenting a document validly executed and is having an evidenciary value to raise presumption of its validity, but this presumption in respect of registered Will, even if proved under Section 68 of Indian Evidence Act, is rebuttable. If the plaint allegation is that Will has been executed by impersonation then the burden lies heavily upon the plaintiff to prove that it is a case of impersonation.

¶36

In the instant case, I find that there is a document which is paper no. 47-A which is registered sale deed and is admitted to the parties to have been executed by the testator himself in the year 1965. This document having not been disputed and it being admitted to the parties that signature and thumb impression that the said document bore were admittedly of late Jamuna Singh coupled with the fact that handwriting expert who was produced and whose report was there before the court, I do not find anything wrong if the court looked into the report and even if advisory in nature, it took aid of report in forming an ultimate opinion after seeing the document from its bare eyes. The court is also well within its jurisdiction to compare the disputed document with the admitted document. The court having considered the two documents and having compared the same and having formed opinion that the admitted signature, which the disputed document did not bear, in my

¶37

¶38

opinion the court was fully justified in relying upon the report of the handwriting expert on the comparison of the thumb impression between admitted document and the disputed document.

¶39

In any view of the matter, the defendants-appellants had been given enough opportunity to produce evidence in rebuttle or to lead such evidence as would have proved that the document of Will on the basis of which he was claiming title, was a valid document truly executed by testator. Looking to the conduct of defendants-appellants, as has been detailed out in the judgment of trial court, the learned counsel for the appellant could not show as to why the details given in the judgment regarding conduct of the defendant should not be believed. He does not dispute that the time was granted on several occasions, but he could not produce the handwriting expert report, all that he claims throughout is that the Will stands proved under Section 68 of Indian Evidence Act and the trial court ought not to have decreed the suit. This argument, in the opinion of the Court is not sustainable. The courts below have considered the two documents and examined the same very carefully. The handwriting expert report relied by the court below was only an aid in support of opinion that the court had formed after seeing the document from naked eyes.

¶40

On the question of suspicious circumstances, it is argued before the court that not naming the real sister in the Will even by reference

¶41

¶42

and saying that testator had no living close relation casts serious doubt rendering the circumstances suspicious.

¶43

The judgment in the case of Janki Narayan Bhoir (supra) is distinguishable on facts. The issue in that case was that whether one attending witness of the Will is sufficient to prove the evidenciary value of the Will as per section 68 as both the attesting witnesses as required to attest it under section 63 of the Indian Succession Act are required to prove the same entering into the witness box. This is neither the issue involved herein this case nor, is the ground for assailing the Will at the end of the plaintiff respondents.

¶44

In so far as the case of Daulat Ram (supra) relied upon by the learned counsel for the appellant is concerned there was no such issue of suspicious circumstances involved and so neither pleaded nor, argued and therefore, the ratio of the said judgment is of no help to the appellants.

¶45

The question why a brother would not refer to his real sister in his Will while bequeathing the property to a third person clipping the right of succession of his real sister in natural course is not answered to remove the doubts. Further according to the attesting witness's own testimony father of testator Jamuna Singh was alive and yet Jamuna Singh does not refer to his father in his WILL and instead, recital is that

¶46

¶47

no close relation was there, while the Will was being executed. These two relevant aspects as an unimpeachable which fact are missing in the Will and cast serious doubt about the execution of the Will by Jamuna Singh. Jamuna Singh was admittedly issueless and nothing would have stopped him from bequeathing his property to any one of his choice but why he would not refer to his own living father and real sister who would have succeeded the property in natural course of succession, does not appeal to reason and logic. If one executes a Will in favour of a third person, the natural corollary is that testator wants to exclude those from succession whom he does not want and then he would of course, be writing as to why he wants to exclude such close relation. It is own deposition of the attesting witness that testator had cardiac problem and was brought on a dunlop bed and was too weak to walk on his own. It has also come on record that testator died within two weeks of the execution of the Will and not naming the living father and living real sister in the Will and with no recital as to why their right of succession was being denied by the testator creates suspicion; and instead the recital being that testator was no having any close relation, renders the entire circumstances suspicious as well and the defendant has not been able to dispel the suspicious circumstances by leading any oral or documentary evidence.

¶48

It has been observed in the case of Gurdial Kaur & Ors v.

¶49

¶50

Kartar Kaur & Ors (supra) the conscience of the Court must be

¶51

justified. Vide para 4 of the judgment Court held thus:

¶52

“The law is well settled that the conscience of the Court must be satisfied that the will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said will was the product of the free volition of the executant who had voluntarily executed the same after knowing and understanding the contents of the will. Therefore, whenever there is any suspicious circumstance, the obligation is cast on the propounder of the will to dispel suspicous circumstance. As in the facts and circumstances of the case, the Court of Appeal below did not accept the valid execution of the will by indicating reasons and coming to a specific finding that suspicion had not been dispelled to the satisfaction of the Court and such finding of the Court of Appeal below has also has been upheld by the High Court by the impugned judgement, we do not find any reason to interfere with such decision. This appeal, therefore, fails and is dismissed without any order as to costs.”

¶53

In view of the above, no substantial question of law arises for

¶54

consideration of this Court in this appeal.

¶55

Accordingly, appeal lacks merit and is dismissed. Cost made

¶56

easy.

¶57

Order Date :- 23.10.2018 IrfanUddin

Shyam Bahadur Singh v. Kaula Devi (Since Deceased) and 3 Ors.

Case brief

What is this about?

What did the court decide?

Shyam Bahadur Singh v. Kaula Devi (Since Deceased) and 3 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Balwant Singh (Deceased) and 4 Others Vs Shanti Prakash (Deceased) and 6 Others

Keshav Nath Vs Mukti Narayan Chaturvedi

ramesh chand yadav Vs amita and 3 Ors.

Sujan Singh Vs State of U.P. and 3 Others

Shambhu Nath Vs Jeet Narain Vishwakarma and Another

National Insurance Co. Ltd. Vs Smt. Meera Devi and Others