Shiv Dayal Shrivastava, J.
1. This second appeal arises out ofa decree passed by the Additional District Judge, Gwalior, reversing the decree passed by the Civil Judge, first class, Lashkar, whereby the plaintiff's suit for declaration of title and possession was decided in favour of the plaintiff. Tulsiram instituted this suit on 10-7-1950, on the allegations that Smt. Kapolibai was the owner of the suit property, that she died on 2-4-1950, leaving a will dated 19-5-1920 whereby she bequeathed in his favour the suit house -and other movable property, and that the defendants took wrongful possession, of it. He also complained in the plaint that the defendants had thrown out stone slabs kept in two-rooms and occupied them and. further, that Shyamlal (defendant No. 1) had given notice to the tenants residing in another portion of the house asserting. his own title.
2. Initially there were two defendants namely (1) Shyam Lal minor son of Ganpatilal and (2) Rewadmal. Later on Ganapatlal was also made a. defendant (No. 3). On September 12, 1950, Rewadmal filed his written statement. On 28-5-1951, a written statement was filed on behalf of Shyamlal and on 18-12-1951, Ganapatlal's written statement was filed. The three defendants resisted the plaintiffs suit on three different grounds. Rewadmal claimed that the house was bequeathed to him by Kapolibai under a will dated 11-4-1950. That will is marked as Ex. D1 and shall heareafter be called the 'disputed will.' Shyamlal claimed the title to the house in himself. Ganapatlal did not claim the house either for himself or for Shymlal, but he asserted the title of Rewadmal On a different ground. According to him Rewadmal was the owner of the suit property for 30 years and more. The defendants challenged the will of May 19, 1929 executed by Kapoli Bai in favour of Tulsi Ram plaintiff.
3. Shyam Lal defendant No. 1 is the son of Ganpat Lal defendant No. 3. Rewadmal defendant No. 2 was the brother of Ganpatlal defendant No. 3, but it is said that the former was adopted by their uncle, Nathoo Lal and so they became cousins. There is nothing on the record to suggest any relationship between Rewadmal and Kapolibai, but it is said in the disputed will that he had served her for a long time. Tulsi Ram plaintiff is Kapoli Bai's sister's son.
4. Today the will dated May 19, 1920 is not disputed and Shri Kak concedes that it is a valid and operative will, subject to such rights as were conferred on Rewadmal under the disputed will. Shyamlal was a minor when this case was before the courts below and also when this decree waspreferred. Now he has attained the age of majority. Shri Kak represents him as also Canpatlal.
5. Rewadmal died on 12-2-1954. An application was made by the plaintiff on 17-3-1954, praying that Ganpatlal be brought on record as legal representative of Rewadmal and if Shyamlal was found to be the legal representative of the deceased he may be brought on record in that capacity and, further, since both Ganpatlal and Shyamlal were defendants in the suit, the name of Kapoli Bai be struck off. This application was allowed by the trial Judge on March 30, 1954 because neither Ganpatlal nor Shyamlal raised any objection to it. In my opinion this was not proper. The learned trial Judge should have decided which of the two defendants was entitled to re-present Rewadmal in this suit.
Obviously, Shyamlal could not be his legal representative because Ganpatlal came first in the order of succession. Any way, that is wholly immaterial for the decision of this appeal. The learned trial Judge found that the will dated May 19, 1920, had been fully proved and thereunder Tulsiram succeeded to the properties bequeathed thereby. As regards the disputed will of 1950 he found that its genuineness was doubtful and that the will had not been proved to the satisfaction of the Court. In the result he passed a decree in favour of the plaintiff as prayed for by him except that the relief of mesne profits was refused. On appeal the Additional District Judge, Gwalior, held that the disputed will of 1950 was proved by the evidence of two attesting witnesses, and the scribe and, since under this disputed will only a portion of the whole house namely 4 rooms and a courtyard had been bequeathed in favour of Rewadmal, he found that the plaintiff's suit could not succeed regarding the back portion. As regards the rest of the house to which he found the plaintiff to have succeeded on the death of Kapoli Bai under the will of 1920, he dismissed the suit on the ground that the will of 1950 did not cover the rest of the house and the plaintiff unnecessarily included that part in the suit. In the result he dismissed the entire suit of the plaintiff.
6. In this second appeal the first contention raised by Shri Gupta is that the appeal before the District Judge was not competent. That appeal was filed by Ganpatlal on behalf of himself and as a guardian of Shyamlal. As regards Shyamlal the Facts are these. To start with, the plaintiff applied to the trial Judge to appoint Ganpatlal, that is his lather as guardian ad litem, but Ganpatlal refused. Then his mother was proposed. She too declined. Ultimately the Nazir of the Court was appointed as guardian. But the first appeal was not filed by the Nazir; it was filed by Ganpatlal as guardian of Shyamlal, The argument of Snri Gupta is that once a guardian ad litem is appointed no one else can file an appeal because such, appointment inures for the whole of the lis and in all its ramifications unless and until it is revoked by the Court or the guardian dies or retires. This proposition finds support in a number of authorities including a decision of Dixit J. (as he then was) in Sardar Singh v. Kesar Bai, 1954 Madh-BLJ (IICR) 777. Shri Kak does not contest this proposition but his argument is that since no objection was taken before the tower appellate Judge and the result of the appeal is favourable to the minor, the irregularity should in the interest of justice be condoned. He relies on Sulaiman v. Abdul Shakoor AIR 1940 Nag 99 and Raj Behari Lal v. Dr. Mahabir Prasad, AIR 1950 All 310 (FB).
7. In my opinion the provisions contained in Order 32 C, P. G. are primarily intended to saleguard the interests of the minor. If an appeal is preferred on behalf of a minor by any person other than his guardian ad litem and no objection is taken about it and the appeal is decided in favour of the minor, it cannot be contended that all proceedings in the appellate Court were null and void and the decree must be set aside.
8. Regarding Ganpatlal, the argument of the learned counsel for the appellant is that his defence and the defence of Rewadmal being at variance it was imperative for him on the death of Rewadmal to elect one of the two. As he did not do this he must be bound by his own written statement where he did not clearly mention the property as his own, but asserted title in Rewadmal. That being so, he had no locus standi to go in appeal. In my opinion, his argument has no force, it is true that Ganpatlal, after the death of Rewadmal bad a dual capacity. He was defendant in the suit from before and he was the legal representative of Rewadmal. But it was not obligatory for him to inform the Court which of the two defences he would stick to; he could avail of both the defences in the alternative. He was, therefore, competent to prefer an appeal from the decree of the first Court.
9. Before I consider the merits of the case, it is worthy of mention that Ganpatlal rode three horses in the first appellate Court (1) As Shyamlal's guardian, he was bound to support Shyamlal's claim, namely, that the house belonged to the latter; (2) By himself he had pleaded a possessory title of 30 years in Rewadmal; and (3) As legal representative of Rewadmal he claimed the property on the basis of the disputed will dated April 11, 1950.
10. However, today the first two horses are dead and Shri Kak has not whipped any of them for obvious reasons. Neither in the written statement nor in evidence did it come how Shyamlal got the house. He could not inherit the property from Rewadmal obviously because his father was the preferential heir. Then again, he claimed the house for Rewadmal on the basis of long possession, which was inconsistent with Rewadmal's own case, namely, that he got a portion of the house under Kapolibai's will. This appeal, therefore, boils down only to one issue, that is, whether the will dated 11-4-1950, alleged to have been executed by Kapolibai is genuine or not. That Kapolibai was the owner of the house until her death is common ground.
11. The disputed will Ex. D1 is on a ruled paper, the appearance of which shows that it is a leaf torn out from a student's exercise book. It purports to bear the thumb impression of Kapolibai, There are four marginal witnesses out of whom Mangalchand and Prabhu Dayal were examined by the defence. Laxmi Narnin the scribe of the will was also examined. It was recited in this will that about 25 years ago she had appointed her sister's son Sarwanlal as her heir. It was her desire to give away the back portion of the house to Rewadmal. It is common ground that Sarwanlal is another name of Tulsiram plaintiff.
12. This will was registered on 2nd of December, 1950, that is not only after her death but also after the suit had been filed and also Rewadmal's written statement had been tiled. It is at once striking why the will was not registered in her life time when it appears that the woman was conscious of the advisibility of registration. In paragraph 4 of the will these words appear, 'is wasiyat nama ko main bimari se achchi hokar 10 ya 15 din men registry karadungi.' Even if she was ill, the will could he registered at her residence. The argument of Shri Kak is that a will is not a document which requires compulsory registration. That is quite true, but then it was not necessary to mention in the will that she would get it registered after her recovery from illness. Moreover, at the end of paragraph 1 the following words appear to have been added in a blank space 'mere bad panchan iski registry karadeven.' These words were not added in paragraph 4 referred to above. Paragraph 1 of the will' was originally this, 'jabtak main zinda hun kul jaidad ki malik rahungi.' Here the subsequently added words do not fit in.
13. There is no doubt that Kapolibai was indisposed from some time before her death, as has been stated not only by plaintiff's witnesses, but ako by defendant's witnesses. Dr. Nand Nandan Swamp (P- W. 7) stated that Kapolabai was under his treatment for about a month and that for two or three days before her death she had lost the faculty of speech and was unable to sit. This witness has not been believed on the ground that he did not maintain any register of patients. It is doubtful whether that ground alone is sufficient to discredit a Homeopath, but in view of the other evidence, I do not propose to dwell upon it any further. Budhamal P. W. 6 stated that Kapolibai was unconscious and could not speak for two days before her death.
There is nothing in the cross-examination ot this witness to suggest why he should not be relied upon. The trial Judge believed him. Shri Kak's objection is that this witness was interested in Kapolibai 'because his mother and the deceased were 'Dharam Sisters.' In any event, it is not shown how Budhmal is interested in the plaintiff. In civil cases relationship cannot be a ground for discrediting a witness. Likewise it is no argument that a witness must be believed just because the other side failed to show that he was not interested in the party which produced him. Such factors cannot determine the credibility of a witness. Their effect is very meagre. All this I am saying because there is an observation in the judgment of the lower appellate Court that Prabhu Dayal, Mangal Chand and Laxmi Narain must be believed because the plaintiff could not prove any enmity between himself and these witnesses, nor could he prove any particular interest which they might have had in the defendants.
14. According to the defence witnesses Kapolibai was no doubt ailing for sometime, but she could move about and could also eat and drink. The fact remains that she had been indisposed for sometime before her death and she was an old woman.
15. It must be recalled here that Kapolibai died on April 12, 1950, while the disputed will bears the elate April 11, 1950. The plaintiff examined a handwriting expert. Beharilal Saxena P. W. 9, who by obtaining a photographic enlargements demonstrated to the Court that the thumb impression alleged to be of Kapolibai was a super-imposition of one over another. He compared the thumb impression with that on the register of documents maintained by the Registrar against an entry dated 15-6-1937 recording a mortgage deed executed by her, as also with another thumb impression on a site plan Ex. P. 1 which was submitted to the Registrar of documents and which bears the date June 16, 1937. In the opinion of the expert those thumb impressions do not tally with the thumb impressions on the disputed will. The testimony of this witness has been discredited on the ground that the witness did not know whether the standard thumb impressions were of the right hand or of the left hand, nor was it known from the will whether the thumb impression thereon was of the right or of the left hand.
16. It is an outstanding feature of this case that on May 9, 1950, notices were given to two tenants namely Brij Mohan and Maharaj who were residing in the disputed portion of the house, by Ganpatlal as guardian of his minor son Shyamlal. In these notices the tenants were informed of the death of Kapolibai and of Shyamlal's succeeding to her estate as heir 'chunki ab Mst. Maskoor ka dehant hogaya wa uski pichari ki jaidad ka malik aur waris Shyamlal hat isliye zaria notice itla deta hun ki...' A very strong suspicion arises from this undisputed fact. If the will had been executed in the life-time of Kapolibai, Ganpatlal could not issue such a notice. This notice did not make any mention of the disputed wilt.
Shri M. L. Gupta has thrown a straight suggestion that the disputed will was brought into being after Kapolibai's death and somewhere between the 9th May and the 12th September, 1950. Shri Kak could not explain it away by pleading ignorance of the will. The argument that the will might have been executed behind the back of Ganpatlal was not available to the learned counsel because Rewadmal himself and Prabhudayal, an attesting witness, have stated that Ganpatlal waa present when the will was written and executed. It is difficult to think of any other explanation. And if there could be any, it could come only in the statement of Ganpatial.
17. The above facts, and particularly the last mentioned fact of notice issued by Ganpatlal on behalf of Shyamlal give rise to suspicions. The burden of proof is always upon the propounder of a will and the presence of suspicious circumstances naturally tends to make the initial onus very heavy. (see Venkatachala Iyengar v. V. N. Thimmajamma, AIR 1959 SC 443). It is, therefore, to be seem whether these suspicions have been removed by the evidence adduced by the defendants. Ganpatlal was, in this situation, a necessary witness and his abstention from stepping into the witness box is the strongest circumstance against him.
The learned trial Judge pointed out certain discrepancies in the statements of the attesting witnesses and the scribe. The opinion of the trial Judge has to be given weight regarding the appreciation of oral evidence. Some features are outstanding. Laxmi Narain, the scribe, stated that he had been brought by Prabhu Dayal to write the will. On the contrary, Prabhu Dayal stated that when he reached Kapolibai's house, Laxmi Narain was already there and writing the will. Then again, according to Mangalchand the will was being written on a platform (chabutra) while Laxmi Narain stated that the will was written in a room (kotha). The lower appellate court has brushed aside these discrepancies by calling them minor.
In my opinion, having regard to the observations of the Supreme Court in the case cited above, such discrepancies cannot be ignored. One would have understood it, if the witnesses had stated about these details that they did not remember. But, if they chose to answer the details asked and then they are found to be discrepant their veracity becomes doubtful. The tesatrix who has already departed from the world cannot say whether it was her will or not and that is why the evidence led by the propounder of a will must be cautiously scrutinized. I have carefully perused the judgment of the first Court and I find that the conclusion arrived at is based on firm premises, and as held by their Lordships in the case ot Sarjuprasad v. Raja Jwaleshwari Prasad, 1950 SCR 781 : (AIR 1951 SC 120), it was not open to the lower appellate Court to disturb it ligntiy.
18. The learned Additional District Judge, it appears from his judgment, has been deeply impressed by the argument that if the will of 1950 was fictitious the whole of the estate of Kapolibai, could have been, included therein and there was no reason to restrict it only to the back portion of the said house. This argument is no doubt attractive, but a little reflection snows that it is not inconsistent with Shri Gupta's suggestion that the will was created after May 9, 1950, and since in the notices issued by Ganpatlal on the last mentioned date he claimed 'pichari ki jayadad' the will was not made a universal one. For these reasons I am at one with the trial Judge and hold that the defendants have miserably failed to remove the suspicions about the genuineness of the disputed will.
19. As for the front portion of the house, the lower appellate Court has dismissed the suit without any reason. All the three defendants prayed in their written statements that the plaintiffs suit be dismissed. It is not only when a property is wrongfully occupied or there is an express denial of his title that a plaintiff can bring a suit for declaration thereof: as soon as his title is threatened or there is a cloud cast on his title, he becomes entitled to have the necessary declaration from the Court.
20. The trial Judge did not allow mesne profits to the plaintiff. Aggrieved by the same he preferred a separate appeal before the District Judge (Civil Appeal No. 156 of 1954). The plaintiffs appeal was dismissed as a necessary consequence by the learned Additional District Judge when he allowed defendant's appeal No. 146 of 1954. Now that the plaintiff's appeal is being allowed I have to consider whether he is entitled to mesne profits or not. It is undisputed that the back portion of the house has been in the occupation of the defendants since April, 1950. If the plaintiff who was entitled to the whole house under the will of 1920 was deprived of a portion of the house there is no reason why he should not get mesne profits from the defendants whose possession has been wrongful.
21. This appeal is, therefore, allowed. Thejudgment and decree passed by the AdditionalDistrict Judge, Gwalior are set aside and thosepassed by the trial Judge are restored so far asthe declaration of title and possession is concerned. As retards mesne profits the trial Judge shallproceed with an inquiry under Order 20 Rule 12(c),C. P. C. The plaintiff shall get his costs throughout from Ganpatlal defendant.