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Rajesh Chand, Etc. Vs. Dayawati and ors. - Court Judgment

LegalCrystal Citation
CourtDelhi High Court
Decided On
Case NumberRegular First (OS) Appeal No. 16 of 1979 and Civil Miscellaneous Appeal Nos. 925 and 926 of 1979 and
Reported inILR1981Delhi477
ActsSuccession Act, 1925 - Sections 59; Evidence Act, 1872 - Sections 110
AppellantRajesh Chand, Etc.
RespondentDayawati and ors.
Advocates: S.N. Marwah,; A.K. Marwaha,; R.L. Kohli and;
Cases ReferredIn Hall v. Hall
indian succession act - sections 59 and 61 and explanationn 4-a will taken by such importunity as to take away the free will of the testator is invalid--indian evidence act, section 110--raises a presumption in favor of the person who is shown to be in possession but not vice-versa.; this appeal arise out of the decision in suit no. 414 of 1973 declaring the respondent entitled to the ownership of a house and recovery of debts due to the testator form his debtors, under a will made in her favor by her brother. appellant are step brothers of the deceased testator and the respondent. on 30-8-1973 a will bequeathing a house and the right to recover debts due to the testator in favor of the respondent was executed and duly registered. another will put up by the appellants in the court.....v.s. deshpande, j.(1) beneficiaries under wills are often propounders thereof, (who else will be interested ?). but this circumstance necessitates a caution against the voluntary nature of the will. such a propounder is expected to dispel the suspicion created by this and such other circumstances in addition to his duty to prove the execution and attestation of the will. what is the law governing the burden of proof placed on beneficiary propounder of the will to dispel the suspicious circumstances surrounding it the origin of the law is simply the rule of commonsense and prudence now embodied in section 114 of the evidence act, which is as below : 'thecourt may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural.....

V.S. Deshpande, J.

(1) Beneficiaries under wills are often propounders thereof, (who else will be interested ?). But this circumstance necessitates a caution against the voluntary nature of the will. Such a propounder is expected to dispel the suspicion created by this and such other circumstances in addition to his duty to prove the execution and attestation of the will. What is the law governing the burden of proof placed on beneficiary propounder of the will to dispel the suspicious circumstances surrounding it The origin of the law is simply the rule of commonsense and prudence now embodied in section 114 of the Evidence Act, which is as below :

'THEcourt may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.'

This is also supplemented by sections 59 and 61 of the Indian Succession Act, 1925, the relevant parts of which are as below : '59. Every person of sound mind not being a minor may dispose of his property by will. * * * * Explanationn 4.-No person can make a will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.' Illustrations

(I)A can perceive what is going on in his immediate neighborhood, and can answer familiar questions, but has not a competent understanding as to the nature of his property, or the persons who are of kindred to him. or in whose favor it would be proper that he should make his will. A cannot make a valid will.

(II)A executes an instrument purporting to be his will, but he does not understand the nature of the instrument. nor the effect of its provisions. This instrument is not a valid will.

(III)A being very feeble and debilitated, but capable of exercising a judgment as to the proper mode of disposing of his property, makes a will. This is a valid win.'

'61.A will or any part of a will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void. Illustrations '

(V)A, being of sufficient intellect, if undisturbed by the influence of others, to make a will yet being so much under the control of B that he is not a free agent, makes a will, dictated by B. It appears that he would have executed the will but for fear of B. The will is invalid.

(VI)A, being in so feeble a state of health as to be unable to resist importunity, is pressed by B to make a will of a certain purport and does so merely to purchase peace and in submission to B. The will is invalid.

(2) The principle of section 16 of the contract Act defining undue influence is also applicable to the burden of proof resting on the beneficiary propounder when he is in a position to dominate the will of the testator and seems to have taken an unfair advantage over the testator of his disposition. But as observed by the Supreme Court in H. Venkatachala Iyengar v. B. N. Thimmajamma and others (1959) Supp. (1) Scr 426 (1) ,

'EVENwithout such pleas (of undue influence, fraud or coercion) circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter (initial onus resting on the propounder).'

On this slender basis the law has been greatly elaborated by the judicial decisions. The facts to which it is to be applied in this case are briefly stated below :

(3) The testator was Amar Nath, son of Ram Lal from his first wife. Amar Nath's real sister from the same mother is Dayawati. After the death of his first wife, Ram Lal married again and the second wife is alive. From the second wife Ram Lal has six sons and five daughters. Ram Lal was the Karta of a joint family consisting of his second life, Amar Nath and the sons from the second wife. Apparently because the step-brothers of Amar Nath did not want Amar Nath to continue in the joint family, a partition suit was filed by the step-brothers of Amar Nath. The result was that Amar Nath alone was thrown out of the joint family, while Ram Lal, his second wife and her sons continued to be joint. With the money received at the partition as his share, Amar Nath bought a house No. 5682, Kucha Khan Chand, Nai Sarak, Delhi.

(4) Amar Nath lived alone in this house and worked as a commission agent. He was well-to-do and possessed sufficient means. On the one hand, he had his real sister, Dayawati as the nearest relation. On the other hand, he had his father, Ram Lal also as the nearest relation. But Ram Lal lived with his second wife and her sons who were step-mother and step-brothers to Amar Nath. On the whole, Amar Nath seems to have preferred his real sister, Dayawati, to his step-brothers, though his relations with both the sides were normal. On 30th August, 1973 Amar Nath made a will in favor of his real sister, Dayawati and got it registered. On 5th September, 1973 Amar Nath purported to make a second will in favor of his step-brothers revoking the first will. On 7th September, 1973 Amar Nath died.

(5) Suit No. 414 of 1973 was filed by Dayawati on 17th September, 1973 for a declaration that she was entitled to succeed to the property of Amar Nath as the sole legatee by virtue of the first will, dated 30th August, 1973. The first six defendants were her and Amar Nath's step-brothers. Defendant No. 7 was Ram Lal. Defendants 8 and 11 were debtors of Amar Nath, the right to recover which debts was bequeathed to Dayawati in the first will. Defendant No. 12 is the tenant occupying the ground floor of Amar Nath's house. Dayawati averred that the first will was duly executed by Amar Nath in a disposing state of mind and was duly attested, while the second will was invalid because on 5th September, 1973 Amar Nath was removed by defendants 5 and 6 to their own house and was made to execute the second will against the will and desire of Amar Nath. She said that she was in possession of the house of Amar Nath when the suit was tiled, but subsequently she was dispossessed by her step-brothers.

(6) The defense by the step-brothers was that Dayawati was not in possession of the house when the suit was filed and the suit for declaration did not lie and had to be one for possession. It was also averred by them that the first will was not made by Amar Nath by his own free will. On the other hand, the second will was validly executed and attested by Amar Nath in disposing state of mind.

(7) H. N. Aggarwal J. found that the first will was valid and the suspicious circumstances surrounding the second will were not explained to the satisfaction of the court and,herefore, the second will was not valid. The house was declared to belong to Dayawati who was also entitled to .recover the debts due to Amar Nath from his debtors. Though there was a doubt as to who was in possession on the date of the suit, since the plaintiff was the owner of the house, the benefit of doubt was given to her and she was held to be in possession on that date. Hence this appeal by the six step-brothers. The father has not joined as an appellant-.

(8) Initially the burden was on the plaintiff to prove the validity of the first will. This burden however, was lightened by the following circumstances :

(1)Relations of Amar Nath with Dayawati appear to have been better than his relations with his stepbrothers. This is shown by the fact that in August, 1973 when Amar Nath was ill, he was got admitted to the All India Medical Institute by Shiv Kumar, son of Dayawati, who also probably brought his home on the 26th August, 1973 from the said hospital. This was not done by the appellants.

(2)Had Amar Nath died intestate his estate would have gone to his step-mother as the preferential heir. In The first will Amar Nath affirmed his affection for his sister staring that since the partition he had nothing to do with his father and stepbrothers. Even in the second will Amar Nath did not refer to his step-mother at all, though he had stated that his father and step-brothers were looking after him. The principal reason for making the will is to change the course of succession. If Amar Nath had not minded estate going to his step-mother and thereafter to his father, six step-brothers and five step-sisters and one real sister in equal shares, he would not have made any will at all. These circumstances show that it was natural for Amar Nath to have made the first will in favor of his real sister.

(3)If the first will had not been made by Amar Nath with afree will, he would have said so in the second will. On the contrary, he referred to the making and registration of the first will as apparently valid. The only reason for revoking the first will stated in the second will was that Amar Nath had lost confidence in Dayawati. No reason for the loss of confidence was given.

(4)While the first will was registered after the admission of its execution was made by Amar Nath before the registering authority, the second will was registered without any such admission being made by Amar Nath as he died before the second will was registered. A presumption of due execution of the first will arises by its registration after its execution was admitted by the testator himself before the registering authority (Rani Purnima Devi and another v. Kumar Khagendra Narayan Dev and Another, : [1962]3SCR195 et see.

(5)The first will when drafted by the scribe recited the names of the attesting witnesses also showing that the attesting witnesses were present when the will was drafted and at any rate the scribe was told the names of the persons who were going to attest the will. By way of contrast the same scribe drafted the second will without mentioning who were to be the attesting witnesses which could create a doubt as to whether and when it was attested at all since Amar Nath died within less than two days of the making of the second will.

(6)Public Witness 6, Dr. Surinder Mohan Seth was called specifically to see Amar Nath and he has certified on the will it self as to the disposing state of mind of Amar Nath.

(7)Public Witness 10, Dr. O. P. Bhargava, who admittedly examined Amar Nath on several occasions and who is an eminent physician (and M.R.C.P.), examined Amar Nath at his own clinic on 3rd September, 1973 which shows that Amar Nath was definitely in a physical and mental state of mind capable of making the first will on 30th August, 1973.

(9) We, thereforee, agree with the learned single Judge that the valid execution and attestation of the first will was proved and also that it was natural for Amar Nath to have executed it in favor of Dayawati.

(10) The second will sharply contrasts with the first will, both regarding the circumstances under which it was bronght about and also in its contents. Suspicious Circumstances :

(1)The only reason why Amar Nath lived separately from the appellants was that the appellants did not want him to live with them and for that purpose obtained a decree for partition against him. Even when Amar Nath came home from the Hospital on 28th August, 1973 he stayed at his own house, though he was seriously ill. Since the plaintiff and her son had got him admitted to the Hospital and brought him back from the Hospital they were obviously looking after him during his illness. Public Witness 10, Dr. O. P. Bhargava, says in his evidence that some lady had accompanied Amar Nath on 3rd September, 1973 when Amar Nath came to his clinic. In all probability the lady was the plaintiff, though this has not been brought on record. She could not be Amar Nath's step-mother as even in the second will Amar Nath professes his affection only for the father and the step-brothers and does not mention the step-mother at all. The only reason given by the appellants why Amar Nath came to live' in their house was that he wanted medical attention which he was receiving from them in order to enable him to receive the same at their house. In support of this theory, Dw 5. Dr. Prem Behari Mathur. who is only an M.B.B.S.. was examined by the defendants-appellants to show that he had treated Amar Nath before his death and that he saw Amar Nath as late as 5th September. 1973. Aggarwal J. has seen and heard this witness and has concluded that he could not rely on his testimony. We have seen the certificate given by him to the effect that Amar Nath was suffering from 'congestive heart-failure'. He has explained it is mean failure of the right side of the heart. He says that the left failure of the heart is not called congestive heart failure and it is called left ventricle failure'. He thus made a distinction between congestive heart-failure and left ventricle failure and was positive that Amar Nath suffered from the former and not from the latter. This appears to be in direct contradiction with the evidence of Pw 10, Dr. Bhargava, who has stated that Amar Nath had cardiac enlargement going into left ventrical failure. Dr. Bhargava, who is an M.B.B.S. and M.R.C.P. is also a heart specialist as against Dr. Mathur (DW 5), who is only an M.B.B.S. and a general practitioner. Dr. Bhargava (Public Witness 10) undoubtedly examined Amar Nath several times as is shown by the various prescriptions written by him for Amar Nath. On the other hand, not a single prescription by Dr. Mathur has been produced. In these circumstances we are not persuaded to disregard the finding of the learned single Judge about the evidentiary value of the statement of Dw 5, and our conclusion is that there is no reliable or convincing evidence that the appellants arranged any medical attendance to Amar Nath after he shifted to their residence. thereforee the only reason given by the appellants why Amar Nath shifted from his own house to the house of the appellants on 5th September, 1973, i.e. medical attention, is shown to be nonexistent.

(2)If Amar Nath did not go to the house of the appellants for medical attention and was not given any medical attention by the appellants, the reason for his going to their house could only be that the appellants were keen to get him to their own house for what followed, i.e. the second will. It would be unrealistic to think that the appellants wanted Amar Nath to be in their own house for showering their affection on him. They had never done so at any time. Amar Nath showed a sturdy independence in living alone in his own house from the tone of the partition till 5th September, 1973. In para- graph 9 of the plaint, it is specifically pleaded that Amar Nath was removed to the appellants' house on the morning of 5th September, 1973. In reply by defendants 2 and 7 it was merely stated that Amar Nath came to the house of the defendants 'prior to 5th September, 1973', but no specific date was pleaded. This evasive reply makes the averments of the plaintiff more credit worthy and we are inclined to believe that Amar Nath was taken to the house of the stepbrothers on the morning of 5th September, 1973 and he executed the will in their favor on the evening of the same day and died on 7th September, 1973.

(3)From the executing of the 2nd will on the very day when Amar Nath went to the house of the appellants and because there appears- to be no truth in the theory that Amar Nath shifted to the house of the appellants for the better medical attention, one begins to see that the appellants took him to their house on 5th as a part of their plan to get him to execute the second will against his free-will. This becomes clearer from other circumstances too.

(4)Since Amar Nath died on 7th September, 1973 at about 4.00 p.m., he must have been very ill on the evening of 5th September. 1973. The will was executed inside the privacy and secrecy of the house of the appellants. No independent person was present at that time. It was the duty of the appellants', thereforee, to rebut the presumption which arises against them that from illness and extreme feebleness Amar Nath did not know what he was doing withln the meaning of section 59. Explanationn 4 and the illustrations under that section of the Indian Succession Act. It was also the duty of the appallants to show that the execution of the second will was not caused by such importunity on their part as to take away the free agency of the testatory within the meaning of section 61 and illustrations (v) and (vi) below it of the Indian Succession Act.

10.Harmes v. Hinkson Air 1946 P.C. 156, is the leading decision on the subject of the burden of proof resting on the beneficiary propounder of the wills to dispel suspicious circumstances attending to the. execution of the will. In that case the beneficiary propunder of the will, Hinkson, was the best friend and the only friend of the testator. Further, the testator was in the Hospital far away from the house of the beneficiary propounder. The testator was attended to by the doctors and nurses. Even then in paragraph 29 of the judgment the Judicial Committee of the Privy Council speaking through Lord du Parcq observed as- follows :

'THEIRLordships.........are far from commending Mr. Hinkson's conduct as an example to be followed... Elementary prudence would have suggested that either the sick man should be advised to procure the services of a lawyer, acting professionally, or, at least that some third person, a medical man if possible, should be present to hear the testator's approval of the contents of the will.'

It may be restated that not only was no lawyer or doctor present at the time of the second will, but no independent person was also present there.

(5)The father. Ram Lal, who was the only link between Amar Nath and the appellants could be expected to be Impartial between Dayawati and the appellants. He was made a defendant in the suit because the appellants are a part of his joint family. One written statement was drafted to be signed by defendant No. 2 and Ram Lal, but Ram Lal did not sign it. Hie swore short affidavit that the averments made in the written statement were true. No Explanationn is given why Ram Lal did not join in signing the written statement. Further Ram Lal has not signed either as an attesting witness or otherwise on the will to show that he regarded the will as being made by the free will of Amar Nath. Lastly, when a commission was issued to examine Ram Lal as a witness he refused to give evidence on the pretext that he would not do so unless his legal adviser was by his side. Ram Lal seems to have kept himself aloof from the second will probably because it was not a clean affair.

(6)Independence of the attesting witnesses to the second will was absolutely necessary to show that the will was not the result of importunity of the appellants and that though extremely ill Amar Nath desired of his own free will to revoke the first will which was executed only six days ago and wanted to give his estate to the appellants. But both the attesting witnesses are close relations of the appellants, will, Vishnu Bhagwan Gupta is married to the sister of the wife of defendant, Gopi Nath. During the cross-examination the witness twice denied that his wife was the sister of the wife of Gopi Nath, but had ultimately to admit this relationship. Prithvi Raj J. who examined this witness has made the following observation as to the testimony and de-ceanour of the witness:

'NOTE: The witness after having made an unsuccessful bid to refute that Smt. Bala, wife of Gopi Nath defendant No. 4, was the sister of his wife, Satya-wati and after haggling, had to concede in crossexamination that they were sisters. The witness obviously is a partisan witness who appears to have come to the court to support the case of defendants and would not feel shy of keeping back the truth.'

This conduct of the witness recalls to our minds a similar behavior of an attesting witness, who was a close relation of the beneficiary propounder and the observation of the Supreme Court in Rani Purnima Devi's case, referred to above, at page 203, about him.

'IT is obvious thereforee that Sarma tried to pose as an independent witness by denying what his son-in-law had already stated about his connection with the respondent. In the circumstances he cannot also be held to be a disinterested witness, which be tried to be'

The resort by the appellants to get the will attested by such a person who would do anything for the appellants further confirms the suspicion about the second will being obtained from Amar Nath without his free will. The second attesting, witness is Dw 8, Siri Krishan Dass, who is the son of the sister of the mother of the appellants and thus is very closely related to the appellants. His partiality and interest in the appellants is shown by a grievous contradiction. When examined before the Registrar during the proceedings for the registration of the second will he had said that all the appellants were present at the time of the execution of the will. But when examined in the court he said that they were not present there. He was contradicted by his statement before the Registrar, but could not explain the contradiction between these two statements. His testimony also is full of negative and evasive answers that he does not remember this thing or that thing. He was found unreliable by Aggarwal J. and we have not been persuaded to disagree with the assessment. The result is that there is no independent witness to prove the fact that the second will was executed by Amar Nath of his free will. The scribe of the will was examined before the Sub-Registrar and his statement is admissible in evidence under s. 33 of the Evidence Act as the scribe died subsequently. But .the scribe is not an attesting witness. The crucial lacuna for the proof of the second will is two-fold. Firstly, the attestation itself is not proved because both' the attesting witnesses have been held by the learned single Judges who have examined them to be unreliable. The Privy Council emphasised in Harmes v. Hinkson, referred to above, that the appellate court ought to pay respect .to the opinion of the trial court as to the credibility of a witness. For this reason, as also on our independent examination, of the evidence of these witnesses and the circumstances of their close relationship with the appellants and the manner in whtch the second will was obtained by the appellants from Amar Nath we are of the view that valid attestation of the will is not proved. Secondly, the appellants have failed to dispel the suspicion that the second will was not the result of the free will of Amar Nath. Here, the .distinction between a disposing state of mind and voluntary and free action of the testator has to be borne in mind. We may even assume that Amar Nath knew that he was executing the will when he executed the second will and that he intended to do so But this assump tioni is not sufficient. In Huguenin v. Baseley (1807) 14 Ves. Jun. 273(4) , a lady made over her property to a clergyman in whom she reposed confidence. Lord Eldon said :

'THEquestion is, not, whether she knew what she was doing, had done, or proposed to do, but how the intention was produced : whether all that care and providence was placed round her, as against those. who advised her, which, from their situation and relation with respect to her. they were bound to exert on her behalt.'

In a subsequent case the Privy Council said that it was essential to show tha't the transaction was 'the result of the free exercise of the independent will (Inche Noriah v. Shaik Allie Bin Omar (192) A. C. 127 .(5)The distinction exists, thereforee, between the mere intention, on the one hand, and how the intendon was produced, on the other hand. It also exists between the mere factum of execution of a will on the one hand and disposing mind in the sense of a free exercise of an independent will in such execution, on the other.

(7)A reference was made to the decision of the Supreme Court in Surendra Pal and others v. Dr. (Mrs.) Saraswati Arora and another, : [1975]1SCR687 , by the learned counset for the appellants. The sufficient Explanationn of the suspicious circumstances existing in that case was that the testator lived for three years after the execution of the will and that neither at the time of the execution of the will nor subsequently was he ill. This disgusting circumstances clearly makes the decision inapplicable to the case before us.

(8)We need hardly mention that in examining the suspi-cious circumstances surrounding the execution of the second will and the lack of Explanationn to dispel the suspicion offered by the appellants. We have borne in mind the words of the Privy Council in Harmes v. Hinkson, supra, that the rules enioin a reasonable scepticism, not an abdurate persistence in disbelief. They do not demand from the Judge, even in circumstance's of grave suspicion, a reasonable and impenetrable incredulity. He is never required to close his mind to the truth. We have not found any satisfactory Explanationn of the gravely suspicious circumstances surrounding the execution of the will offered by the appellants. In spite of all sympathy thereforee we could not save the second will from being declared invalid. We have also borne in mind the observation of Lord Penzance in Hall v. Hall (1868) 1 P& D 481(7) , quoted by the Supreme Court in Naresh Charan Das Gupta v. Paresh Charan Das Gupta, : [1955]1ITR1035(SC) , which is as below :

'BUTall influences are not unlawful. Persuation, appeals to the affections or ties of kindred, to a sentiment of gratitude for the past services, or pity for future, destitution, or the lake, these are all legitimate and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has the courage to resist moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator's judgment, discretion, or wishes is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led. but not driven; and his will must be the off-spring of his own volition, and not the record of some one else's.'

Section 61 of the Indian Succession Act invalidates a will which is taken by such opportunity as to take away the free will of the testator. In Hall v. Hall, referred to above, it is said that the degree to which free play of the testator's judgment is overborne will decide if the will was the result of his free will or not.

(11) In the present case. the importunity of the appellants must be regarded as having reached the required degree to take away the free will of Amar Nath. because, firstly Amar Nath having died so soon after must have been gravely ill. Secondly, there is no reliable evidence to prove that medical attention was provided to him by the appellants. Thirdly, no independent person was present when the will was executed in the secrecy of the house of appellants. It appears that perhaps Amar Nath would not have made the will in favor of the appellants at all and would not have revoked the will in favor of his sister so soon after making it if the appellants had not removed Amar Nath bodily to their own residence or pressurised him to move himself to their residence.

(12) We, thereforee, uphold the decision of the learned single Judge and agree with him that the suspicious circumstances surrounding the second will have not been explained away by the appellants, and thereforee, the attestation of the second Will is not proved, nor is it proved that it was executed by Amar Nath by his free will. Since the appellants were the beneficiaries under the will which was executed in their own house shortly before the death of Amar Nath without any independent persons being present, the burden of proof resting on the appellants was not dischargcd. Contents of the will :

(13) The above conclusion is reinformed if the contents of the two wills are compared and contrasted. The following contrasts are significant:

(1)The scribe of the first will has written out the will and also the names of the attesting witnesses, but in the second will he did not write the names of the attesting witnesses presumably leaving it for the appllants to fill the names of convenient witnesses who would attest that Amar Nath was executing the will of his free will.

(2)As admitted by Public Witness R, J. N. Gupta, Amar Nath waited to have a room in Swargashram at Rishikesh of which the csti- mated cost was Rs. 15,000. He also said that Rs. 5,000 only out of this had been paid by Amar Nath. This accords with the recital in the first will by which Amar Nath directed Smt. Dayawati to pay a sum of Rs. 10,000 to Swargashram or whatever Smt. Dayawati may consider proper in that. behalf. in the second will, however, the testator only advises his stepbrothers to give a sum of Rs. 5,000 only to Swargashram saying that he was already paid a sum of Rs. 5,000 for that purpose. This recital does not accord with reality. No further amount of Rs. 5,000 was paid to Swargashram after the execution of the first will and before the execution of the second will. The reduction of the amount from Rs. 10,000 to Rs. 5,000 thus obviously enables the appellants to get that amount instead of the said amount being given to Swargashram. The only purpose of the bequest to Swargashram was spiritual as stated in the first will as also in the second will. If so, no Explanationn is given why Amar Nath of his own free will reduced the amount from Rs. 10,000 to Rs. 5,000 in the second will to the detriment of the spiritual purpose. This, in our view, shows directly the in fluance exercised by the appellants on the free will of Amar Nath.

(3)In the first will Amar Nath made a bequest regarding his personal effects 'Khana Dani' in favor of the plaintiff. In the second will no reference' is made to 'Khana Dani' at all. The result of this is that 'Khana Dani' would go by intestate succession to the step-mother of Amar Nath, who was never intended to be a legatee by him even according to the appellants. This is another piece of evidence to shew that Amar Nath was not conscious of the fact that 'Khana Dani' was not being disposed of by the second will. Its non-mention would give it to the step-mother, a result which he could not have contemplated.

Possession :

(14) The Second question for consideration 's whether the plaintiff was in possession of the 'house on the date of the suit. The learned single Judge has noted the discrepancies in the evidence of the plaintiff, as well as in the evidence of her son, Pw 7, Shiv Kumar. The burden of proof was on the plaintiff. In the ordinary course of events, the possession of the house on 17th September, 1973 was in all probability with the appellants because they had already taken the second will from Amar Nath on 5th September, 1973. The tenant had also paid rent to one of the defendants as representing Amar Nath on 4th September, 1973. The learned Judge thought that when evidence was conflicting the ownership of the house vesting in the plaintiff should be a ground for presuming that the possession Was also with the plaintiff. In the present case, we are not sure that such a presumption can be drawn, though we do not say that in different circumstances such a presumption may not arise. Section 110 of the Evidence Act raises the presumption of ownership in favor of a person who is shown to be in possession, but not vice-versa. We hold, thereforee, that the plaintiff was not in possession on the date of the suit. She could not, thereforee, sue for a mere declaration. Under Order Vii, Rule 7, Code of Civil Procedure, the court can grant appropriate relief on the facts proved. The plaintiff is entitled to possession from the defendants provided that the plaintiff pays ad valorem court fees on the amount of Rs. 90,000 which is said to be the market value of the house in suit on the plaint. It is true that the defendants stated that Rs. 90,000 was an under-valuation. We are not inclined to either ourselves take evidence or refer the case to the learned single Judge as to the market value of the house. For, if the plaintiff is made to pay court-fees on a valuation of more than Rs. 90,000, it is ultimately the appellants who will suffer because the court-fees paid by the plaintiff would be added to the costs of the plaintiff payable by the defendants and further the defendants would be required to pay the same court-fees on the memorandum of appeal with no gain to the defendants.

(15) We, thereforee, dismiss the appeal with the following observations:

(1)The plaintiff shall pay ad valorem court-fees on the market value of the house, i.e. Rs. 90,000 within a period of three months or such further time as may be extended by the court on her request. (2)After the payment of court fees on relief of possession by the plaintiff, the defendants 1 to 6 shall deliver the possession of the house to the plaintiff if this has not already been done.

(3)If the plaintiff does not pay the court-fees on the relief of possession, whether or not she is already inpossession of the house within three months or within the time extended by the court, the suit itself shall stand dismissed for non-payment of court-fees.

(4)The costs of the suit as also the costs of this appeal shall be payable by the appellants to the plaintiff-respondent. Counsel fee Rs. 500 in the appeal.

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