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Nathi and ors. Vs. Hanuman and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Second Appeal No. 462 of 1962
Judge
Reported in1970WLN154
AppellantNathi and ors.
RespondentHanuman and anr.
DispositionAppeal dismissed
Cases Referred and Harbhaj v. Mohur Singh
Excerpt:
.....sebu, who used to live with mst. heera and attend to her and that the other two daughters of mst. heera, viz. the plaintiffs mst. nathi and mst. gani used to live at their in-law's places and did not look after their mother at all. in these circumstances it is quite natural that mst. heera decided to give away the whole property after her death to mst. sebu alone on account of the services rendered by her. the only ailment she was suffering at that time was some muscular pain in the knee. the plaintiffs have not been able to show that mst. heera was suffering from any such disease at the relevant time which might have effected her power of understanding.;(c) hindu law of inheritance and hindu succession act, 1956 - section 14--husband dies in 1939 leaving behind widow and 3..........of cross-examination he has admitted that his son is married to the daughter of the defendant mst. sebu. d w. 1 sebu has stated that she was at a short distance from the place where the will was written but she deposes that her mother had got the will executed of her own free desire as he was not happy with the other two daughters, namely, the plaintiffs mst. nathi and mst, gaini, d.w.8 lichhmanaram states that he was present when the will was scribed and attested. he also states that mst. heera put her thumb-impression on the will in his presence.7. it is argued that there is nothing in the hand-writing of lichhmanaram in the will, therefore, could not be any certainty about his presence at the time of execution of the will. in fact if he had been present, he would have also been asked.....
Judgment:

C.M. Lodha, J.

1. The plaintiffs Mst. Nathi and Mst Gaini and the defendant No. 1 Mst. Sebu, who, is now dead and is represented by her husband No. 1 and her son respondent No.2 were the three daughters of one Dhanna Jat. who is said to have died in Section 1969 equivalent to 1939 A.D., leaving behind the widow Mst. Heera and three daughters. Mst Heera died in Dec.1957 and after her death the plaintiff-appellants filed the present suit on 7-3-1960 for declaration that each of the three daughters of Dhanna is entitled to 1/3rd share in the property of Dhanna. It was also prayed that a perpetual injunction be issued against the defendants viz defendant No. 1 Mst Sebu and her son defendant No. 2 Birbal not to interfere in the share of the plaintiffs.

2. The defendants resisted the suit inter alia on the ground that Mst. Heera had bequeathed the whole of the property belonging to her in favour of the defendant No. 1 Mst. Sebu and her son Birbal, and, therefore, the plaintiffs are not entitled to get any share out of it. It was also pleaded that the plaintiffs were not in possession of the suit property, and therefore, the suit for mere declaration was not maintainable.

3. After recording the evidence produced by the parties, the Munsiff, Sikar, found that the execution of the will was surrounded by suspicious circumstances which have not been cleared away by satisfactory evidence and consequently according to law of inheritance the plaintiffs were entitled to get 2/3rd share in the property in dispute. He also held that since the property in question was an undivided, property, and, therefore, each of the co-shares will be deemed to be in possession on behalf of all and consequently the suit was maintainable even without relief for possession In this view of the matter he decreed the plaintiff's suit and held that each of the two plaintiffs was entitled to get 1/3 rd share in the property left by Mst. Heera.

4. The appeal filed by the defendants from the judgment and decree of the trial court was however, allowed by the Senior Civil Judge, Sikar and the plaintiffs' suit was dismissed. Consequently the plaintiffs have come in second appeal to this court.

5. The main point of controversy in this present appeal is whether the execution of the will dt.12-9-1957(Ex.1)propounded by the defendants is proved to have been duly executed. Learned counsel for the appellants has submitted that the execution of the will by Mst. Heera has not been proved by satisfactory evidence and in any case the defendants have utterly failed to discharge the heavy burden which lay upon them to show that the testator at the relevant time was in a sound and disposing state of mind and had understood the nature and effect of dispositions and had put her signature to the document of her own free will. It is urged that the execution of the will is surrounded by highly suspicious circumstances which have not been removed by clear and satisfactory evidence. It is contended that even though the will is registered, registration by itself, cannot be considered sufficient to dispel all suspicions regarding the genuineness of the will. In support of his contention the learned counsel has relied on a number of decisions of the Supreme Court, namely, H. Venatachala v. B.N. Thimmajamma : AIR1959SC443 , Purnima Devi v. Khagendra Narayan : [1962]3SCR195 , Shashi Kumar v. Subodhkumar : AIR1964SC529 , Ramchadra v. Champabai, : [1964]6SCR814 , and Thatiah AIR 1965 SC 354, and Thataiah v. Wenkata Subbaiah : [1968]3SCR473 . In addition to these authorities he has also referred to a Privy Council decision in Vellaswamy v. Sivaramnn AIR 1930 P.C. 24. In my opinion it is needless to refer to these rulings in detail as the position in law is well settled that in a case in which a will is prepared under circumstances which raise suspicion of the Court that it does not express the mind of the testator, it is for the propounder of the will to remove those suspicions. What are suspicious circumstances must of course be judged in the facts and circumstances of each particular case.

6. It is, therefore, necessary to examine the facts and circumstances of the present case to find out whether the will in dispute has been proved to have been executed by Mst Heera? The scribe of the will is D.W. 10 Shri Nasiruddin Vakil . It purports to have been attested by two witnesses, viz , Bhura Ram and Jore Ram. Jora Ram has not been produced in evidence but Bhura Ram has been examined as D W. 9. In addition to these two witnesses there are the statements of Sebu (D W. 1), and D.W. 8 Lichhmanaram. D.W 10 Shri Nasiruddin has stated that he had written out the will Ex. 10 at the instance of Must. Heera and read it out and also explained its contents to her and she put her thumb-impression on the will after understanding its contents. He has furher stated that the attestation of the thumb-impression of Must. Heera is in his Munshi's hand, and that both the attesting witnesses had also put their attestation to the will in his presence. D.W 9 Bhuraram has stated that he attested the will at the request of Mst. Heera, who put her thumb impression on the will in his presence. In the course of cross-examination he has admitted that his son is married to the daughter of the defendant Mst. Sebu. D W. 1 Sebu has stated that she was at a short distance from the place where the will was written but she deposes that her mother had got the will executed of her own free desire as he was not happy with the other two daughters, namely, the plaintiffs Mst. Nathi and Mst, Gaini, D.W.8 Lichhmanaram states that he was present when the will was scribed and attested. He also states that Mst. Heera put her thumb-impression on the will in his presence.

7. It is argued that there is nothing in the hand-writing of Lichhmanaram in the will, therefore, could not be any certainty about his presence at the time of execution of the will. In fact if he had been present, he would have also been asked to attest the will. So also it is urged in respect of the statement of D.W. 1 Mst. Sebu that even according to her own statement she was not at the place where the will was actually written out, and therefore, her evidence also cannot be of much value regarding the execution of the will by Mst. Heera. Even if the evidence of two witnesses is excluded there is still the evidence of D.W. 10 Shri Nasiruddin and D.W. 9 Bhura Ram, to the effect that the will was written by Shri Nasirudin in the presence of Mst. Heera, and Mst Heera put her thumb-impression on it. The evidence of these witnesses also goes to show that the will was attested by another attesting witness Jora Ram. It appears that the name of JoraRam was mentioned in the list of witnesses submitted by the defendant. But it is submitted by the learned counsel for the respondent that he could not be examined as he was not available. Be that as it may, the fact remains that there is still the evidence of these two witnesses which goes to show that the will in question was executed in the compound of the Tehsildar's Court. Coupled with this evidence it may be noticed that the will is also registered and there is endorsement of the Registrar on it that the document was read out to the executant Mst. Heera word to word and explained to her and she admitted the correctness of its contents. There is a presumption under Section 60 of the Indian Registration Act that after such of the provisions of Sections 34, 35, 58 and 59 as apply to any document presented for registration have been complied with, the registering officer shall endorse thereon on a certificate containing the word 'registered' together with the number and page of the book in which the document has been copied. It is further provided that such certificate shall be signed, scaled and dated by the registering officer and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by this Act, and that the facts mentioned in the endorsements referred to in Section 59 have occurred as therein mentioned. Thus the certificate of registration endorsed on the document is prima facie evidence that the requirements of the Registration Act have been complied with, and it is for the party who challenge the registration to prove any act or omission which would invalidate the registration. While it is true that mere registration of a document is not in itself proof of it due execution, the certificate endorsed by the Registration Officer on the document, is admissible to prove that the executant was of sound mind. In the first place the evidence of the scribe Shri Nasiruddin Vakil and the attesting witness D W. 9 Bhura Ram goes to establish the execution of the will by Mst Heera and their evidence is further corroborated by the certificate of registration endorsed on the document by the Registrar. Thus there is no doubt that Mst. Heera got the will in question written and signed it and got it registered after the contents of the same had been explained to her. Even the trial court has not disbelieved the fact that the will had been written and had been thumb-marked by Mst. Heera. However, it refused to place reliance on the will as in its opinion there were such circumstances, surrounding its execution as created grave suspicion on the question whether Mst. Heera had executed it in a sound mind after understanding the implication of the same and of her own free-will? The first appellate court did not agree to this view of the trial court and held that the testator was proved to be of sound mind at the time of execution of the will and that she was not in any manner influenced in the matter. In the opinion of the first appellate court the circumstances which created suspicion had been adequately explained.

8. Learned counsel for the appellants has urged that the finding of the lower appellate court in this connection is not correct and the suspicious circumstances surrounding the execution of the will have not been explained away by clear and satisfactory evidence It is submitted that the propounder of the will had taken a prominant part in bringing about its execution and the whole of the property has been given by Mst. Heera to Mst. Sebu alone to the exclusion of her two other daughters viz. the plaintiffs. It has been argued that there is a wrong recital in the will that Mst. Heera had only one daughter viz Sebu. In addition to these circumstances it has also been pressed that Mst Heera was not in a fit state of health at the time of execution of the will as she admittedly died about 3 months after the alleged execution of the will.

9. It is an admitted case of the parties that Dhanna died in or about 1939 AD., and his widow Mst. Heera lived for about 18 years after his death. It is sated by D.W. 1 Mst- Sebu that after the death of her father she and her husband used to live with her mother Mst. Heera and attend to her whereas the other two sisters, namely, Mst. Nathi and Mst. Gaini plaintiffs did not care for their mother at all and never looked after her. D.W 8 Lichhmana Ram who is a cousin of the plaintiff as well as Mst. Sebu has corroborated on this point, and has stated that he had been seeing Mst. Sebu serving her mother for 20 years after the death of her father. D.W. 2 Hardewa, D.W. 3 Kesa, D.W. 4 China and D.W. 5 Kalu have all deposed that after the death of Dhanna it was Mst. Sebu, who used to live with Mst. Heera and attend to her and that the other two daughters of Mst. Heera, viz. the plaintiffs Mst. Gaini used to live at their in-law' places and did not look after their mother at all. In these circumstances it is quite natural that Mst. Heera decided to give away the whole property after her death to Mst. Sebu alone on account of the services rendered by her. This circumstance, therefore that the other two sisters have been completely excluded in will is adequately explained. Then again all the witnesses produced by the defendant have stated in unmistakable terms that Mst. Heera was in a fit state of health and of a sound mind when she executed the will in question. It appears that Mst. Heera happened to go to Sikar where after taking legal advice the will in question was got written by D.W 10 Shri Nasiruddin Vakil. The only ailment she was suffering at that time was some muscular pain in the knee. The plaintiffs have not been able to show that Mst. Heera was suffering from any such disease at the relevant time which might have affected her power of understanding or had incapacitated her or that Mst. Sebu had in any way exercised undue influence over Mst. Heera so as to get the will executed in her favour. No doubt Mst. Sebu had accompanied Mst. Heera from her village to the town of Sikar but the will was got written by a legal practitioner, namely, Shri Nasiruddin (D. W. 10), and was duly attested by two attesting witnesses, not only that the will was got registered. The registration is not perfunctary. On going through the endorsement of registration I find that the registering authority had trade out the will word to word to Mst. Heera and made her to understand its contents, and then Mst. Heera admitted that she had bequeathed her property to her daughter Mst. Sebu and Mst. Sebu's son Birbal. This endorsement thus makes it clear that it was brought home to the testator that the document of which she was admitting the execution was a will disposing of her property and thereafter she admitted its execu tion and put her thumb-impression to it in token thereof. In these cirumstances the doubt, if any, as to the genuineness of the will is completely dispelled and in full agreement with the learned Senior Civil Judge I have come to the conclusion that the defendants have by satisfactory evidence proved that the will Ex. 10 was executed by the testator and that the testator at the relevant time was in sound and disposing state of mind and that she had understood the nature and the effect of the dispositions and put her thumb-impressions to document of her own free will.

10. Learned counsel for the appellant submitted that the will to the extent of the whole of the property is not valid inasmuch as Mst. Heera was only a limited heir on death the property which belonged to her husband Dhanna would go to the heirs of Dhanna, namely, all the three daughters: Mst Nathi, Mst. Gaini and Mst. Sebu. In support of his learned counsel has relied, upon Jandebi v. Upendra Sahu : AIR1968Ori187 . Smt. Rani Devi v. Parmanand 1961 RLW 240, Chaturbhuj v. Sarbeshwart Pradhan : AIR1967Pat138 . Renuka Bala v. Aswini Kumar : AIR1961Pat498 , Kuldip Singh v. Karnail Singh , and Harbhaj v. Mohur Singh . To put more precisely the argument of the learned counsel is that the succession to the estate of Dhanna will be deemed to have open on the death of the limited heir, namely, his widow Mst. Heera in 1957, and, therefore, under the Hindu Succession Act. 1956 the property would devolve on the heirs of Dhanna as mentioned in the first schedule of the Act. In my opinion this argument has no substance On the death of Dhanna in 1939 A.D, according to the principles of Hindu Law of Inheritance the property devolved on the widow, and the daughters did not inherit at all. The widow Mst. Heera of course had a limited estate which is known in Hindu Law as widow's Estate, but with the coming into force of the Hindu Succession Act, 1956 under Section 14 of that Act the property possessed by Mst. Heera came to be held by her as full owner thereof and not as a limited owner. The position, in my view, is crystal and clear does not admit of any doubt. Thus in 1956 Mst. Heera became a full owner of the property in question and had an authority to dispose of the same by acts in ervivos and also by a testamontary disposition Thus the conclusion is inescapable that the will made by Mst. Heera in favour of one of her daughters Mst. Sebu was perfectly valid and legal. I have gone through the authorities referred to above relied upon by the learned counsal and am of opinion that none of them has application to the facts and circumstances of the present case.

11. No other point was argued by the learned counsel for the parties.

12. The result is that there is no force in this appeal and it is hereby dismissed with costs.


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