Hardwari Lal and Another vs Board of Revenue and Others

Prakash Krishna, J.—Challenging the order dated 17th January, 1991 passed by the Board of Revenue, U.P. at Allahabad in Second Appeal No. 18 of 1989-90, Smt. Ganga Devi v. Hardwari, the present writ petition is at the instance of the plaintiffs who had instituted Suit No. 35 of 1988, u/s 229-B/209 of the U.P. Zamindari Abolition and Land Reforms Act, in respect of Plot No. 526 area one bigha 14 biswas, 13 dhurs and Plot No. 122 area four bighas, ten biswas and 9 dhurs, situate in village Faridpur Chakoldar, Pargana and District Budaun.

The background of the facts may be noticed in brief:

The suit was instituted on the allegations that Ganga Ram son of Bhikhari was recorded tenure holder of the land in dispute, who on account of services rendered by the petitioners, executed a Will dated 11th September, 1979 in favour of their nephews bequeathing all properties to them. The said Will was contested by the defendants respondents by denying the execution of the Will of Ganga Ram in favour of the plaintiffs. The defendants came out with the case that Ganga Ram had executed a registered Will dated 25-10-1978 in favour of his son Om Prakash and his daughters, the defendants who are even otherwise also are the heirs and legal representatives of the deceased.

The parties led evidence in support of their respective cases.

The trial court by its judgment and order dated 31st December, 1988 dismissed the suit on the findings that the plaintiffs have failed to prove the execution of alleged Will in their favour by Ganga Ram.

The matter was carried in Appeal No. 95/66 of 1989, which came up for consideration before Additional Commissioner (Administration), who vide its judgment and order dated 19th December, 1989 allowed the appeal by setting aside the judgment and decree of the trial court and decreed the suit declaring the plaintiffs as exclusive owners. The matter was contested in Second Appeal No. 18 of 1989-90 before the Board of Revenue who by its judgment dated 17th January, 1991 impugned in the writ petition, allowed the second appeal.

Learned Counsel for the petitioners submits two points in support of the present writ petition. Firstly, the Board of Revenue has failed to frame substantial questions of law as required u/s 100(4) of the Code of Civil Procedure. Secondly, the Board of Revenue has allowed the appeal without reversing the findings which were recorded by the first appellate court. Elaborating the argument, it was submitted that it were the petitioners, who were looking after Ganga Ram and he was very much happy with them. Om Prakash son of Ganga Ram was disinherited by Ganga Ram as he was Awara and intellectually weak. Ganga Ram had confidence in the petitioners, that is the reason the petitioners were operating the bank account of Ganga Ram with his consent. Learned Counsel for the petitioners submits that these aspects of the matter have been totally ignored by the second appellate court.

None appeared on behalf of the respondents even in the revised list.

Considered the submissions of Learned Counsel for the petitioners and perused the record.

It has not been disputed that Ganga Ram who has died on 14.10.1979 left behind him one son Om Prakash and three married daughters namely, Ram Kali, Ganga Devi and Sukhi. At the time of his death Ganga Ram was living with his son Om Prakash, who was serving him. Sukhi was also residing with Ganga Ram.

A Will denotes a testamentary document. It means a legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. It is in its own nature ambulatory and revocable during his life.

It is said that to ascertain the intention of the testator, the court will sit on the arm chair of the testator so as to give effect intention: and would ascertain that intention of the testator.

The propounder of a Will must prove the following:

(1) Due and valid execution of a Will.

(2) That the Will was signed by the testator at the relevant time, when he was in a sound and disposing state of mind.

(3) That any suspicious circumstances surrounding the Will could be satisfactorily explained away by cogent and satisfactory evidence on the side of propounder.

In the case of Mt. Gomtibai v. Kanchhedilal and Ors. AIR (36) 1949 Privy Council 272 it has been laid down that the person propounding Will must prove capacity of, and fact of execution by testator, Propounder must prove affirmatively that testator knew and approved of its contents. It has been said that where a Will is prepared and executed under circumstances which excite the suspicion of the Court it is for those who propound the Will to remove such suspicion, and to prove affirmatively that the testator knew and approved the contents of the document.

In the case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, the Apex Court has laid down the manner in which a Will can be said to be proved, the propounder to be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, the onus on the propounder can be taken to be discharged on proof of the essential facts mentioned as indicated above. The relevant portion of the above judgment is reproduced below:

There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder''s case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator''s mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator''s free will and mind. In such cases the Court would naturally expect that all legitimate suspicious should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas 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.

In Uma Devi Nambiar and Ors. v. T.C. Sidhan (Dead), the Apex Court has held as follows:

10. Will is a translation of the Latin word "Voluntas", which was a term used in the text of Roman law to express the intention of a testator. It is of significance that the abstract term has come to mean that document in which the intention is contained. The same has been the case with several other English law terms, the concrete has superseded the abstract obligation, bond, contract, are examples (William: Wills and Intestate Succession, p. 5). The work "testament1 is derived from "testatio mentis", it testifies the determination of the mind. A Will is thus defined by Ulpians as "Testamentum est mentis nostrae justa contestatio in is sollemniter racta to post mortem nostrum valeat ." Modastinus defines it by means of voluntas. It is "voluntatis nostrae justa sententia, de eo quod quis post mortem suam fieri vult (or velit)", the word "justa" implying in each, that, in order to be valid, the testament must be made in compliance with the forms of law. It means," the legal declaration of a man''s intentions, which will be performed after his death". A last Will and testament is defined to be "the just sentence of our Will, touching what we would have done after our death". Every testament is consummated by death, and until he dies, the Will of a testator is ambulatory. Nam omne testamentum morte consummatum est; et voluntae testamentoric est embulatoria esque od mortem. (For, where a testament is, there must also of necessity be death of testator; for, a testament is of force after men are dead; otherwise it is of no strength at all while the testator liveth.) A "Will", says Jarman, "is an instrument by which a person makes a deposition of his property to take effect after his decease, and which is in its own nature ambulatory and revocable during his life." (Jarman on Wills, 1st Edn., p. 11) This ambulatory character of a Will has been often pointed out as its prominent characteristic, distinguishing it, in fact, from ordinary disposition by a living person''s deed, which might, indeed postpone the beneficial possession or even a vesting until the death of the disposer and yet would produce such postponement only by its express terms under in irrevocable instrument and a statement that a Will is final does not import an agreement not to change it. (Schouler: Law of Wills, Section 326). A Will is the aggregate of man''s testamentary intentions so far as they are manifested in writing, duly executed according to the statute....

The above principles of law is acknowledged legal position and there appears to be no deviation till date. The trial court by dismissing the suit reached to the conclusion that the Will in question dated 11th September, 1979 is surrounded by following suspicious circumstances:

(1) The will was allegedly executed at Registrar''s Office by the testator but was not got registered on the date of its execution. It was got registered after about 13 days after the death of the testator. If the Will was executed at Sub Registrar''s Office there is no reason for not getting the Will registered then and there on the date of execution of the Will.

(2) The thumb impression of the testator on the Will in question is blurred.

(3) The Will executed by Ganga Ram in favour of the defendants is quite natural and the execution is proved.

(4) There was litigation u/s 107/116 of Cr.P.C. between Ramesh Chandra, one of the attesting witnesses of the Will in question and son of one of the married daughters of testator.

(5) From the voter list of the year 1983 and from the other evidence, it is established that Sukhi wife of Siya Ram and Om Prakash (son of the testator) were residing in the same house in village Faridpur Chakoldar, Pargana and District Budaun. One of the son of Smt. Ganga Devi was studying in a Primary School, Chakoldar wherein name of Ganga Ram is recorded as guardian. In other words, it has been found that Sukhi, daughter of Ganga Ram was residing with him, testator which belies petitioner''s case that Ganga Ram was residing with him and he was serving Ganga Ram.

In addition to above, the other suspicious circumstances surrounded the Will apparent from the record are as follows:

(6) Ganga Ram had executed a registered Will dated 25th October, 1978 in favour of his lone son and daughters bequeathing to them his entire property equally. There appears to be no reason for Ganga Ram to execute the Will in question subsequently, which is unregistered document and to disinherit the son and the married daughters. There is neither any provision for, nor any reference with regard to the earlier Will executed, in favour of the son and married daughters of testator, in the disputed Will.

(7) Although, it is mentioned in the subsequent Will that lone son Om Prakash is nihayat nalayak and awara, there is no evidence to that effect. The age of Ganga Ram at the time of execution of Will was 80 years as mentioned therein. According to the defendants, Ganga Ram had executed the Will in question on 11th September, 1979 and he has died on 14th October, 1979. The first appellate court proceeded to decide the appeal on the footing that the plaintiffs have proved the thumb mark of the testator on the Will in question and also its execution by producing two attesting witnesses. It failed to take into consideration the suspicious circumstances that surrounded the execution of the Will.

Ganga Ram on 25.10.1978 had executed a registered Will in favour of his lone son Om Prakash and three daughters and equally distributed the properties amongst them. The case of the petitioners is that the said Will stands superseded by the subsequent Will allegedly executed by Ganga Ram in their favour on 11th September, 1979. The question arises as to whether the Will dated 11th September, 1979 relied by the plaintiffs petitioners, has been proved in accordance with law.

It is an acknowledged legal position that if a Will is surrounded by suspicious circumstances, it is for the propounder of the Will to explain the suspicious circumstances satisfactorily. Ganga Ram was aged more than 80 years. He was seriously ill before his death. He died on 14th October, 1979. He had feeble mind and was unable to move. Taking undue advantage of the week and feeble mental condition of Ganga Ram, the case of the defendants is that the plaintiff petitioners got his thumb impression on blank papers, on which they subsequently prepared the Will in question. This theory has been accepted by the Board of Revenue and rightly so. The Board of Revenue has examined the matter with care and has given valid and cogent reasons for holding that the Will dated 11th September, 1979 allegedly executed by Ganga Ram, who died on 14th October, 1979, is not proved. Admittedly, the earlier Will dated 25.10.1978 is a registered document, which was executed in favour of defendants respondents. Noticeably, the Will as set up by the plaintiffs petitioners is unregistered document.

The second aspect which weighs heavily against the plaintiffs is that there is no reason for disinheriting the lone son Om Prakash and three married daughters. The submission of the Learned Counsel for the petitioners is that Om Prakash was weak intellectually, therefore, to save the property, Ganga Ram bequeathed his property in favour of his nephews does not appeal to reason. If the son was not so intelligent or mentally underdeveloped, a prudent person will take more care to see that in future the son may not face any problem and will arrange the affairs in such a manner so that the son may pull on his life well, and have least difficulties. He may be able to make both the ends meet.

There appears to be no cogent reason on record to show that Om Prakash was a vagabond. This has not been even found by the trial court. The first appellate court has readily accepted the contention of the plaintiffs that Om Prakash is Awara and man of weak understanding, but without making reference to any evidence on record. It was vital aspect of the case and there should have been some positive evidence in this regard. It has been found by the trial court that from the evidence led by the defendants, it is proved that Ganga Ram was residing with them. The first appellate court has proceeded to allow the appeal without taking even a note of the findings of trial court on presumption and assumption. It is clear fact from paragraph-8 of its judgment where it has used the word "probably" to arrive at the conclusion that Om Prakash was not serving Ganga Ram. Even the first appellate court has not found that the plaintiffs were in any manner serving Ganga Ram.

The other aspect of the case that the bank account was being operated by the plaintiffs has been taken as a ground by the first appellate court for allowing the appeal. The first appellate court has not considered the document produced by the defendants that Ganga Ram was operating his bank account through his daughter''s son Hardwari Lal Gupta (not Hardwari one of the plaintiffs) son of Siyaram and Sukhi.

Along with the counter affidavit to the writ petition, the defendants have enclosed the certificate of the bank account issued by the Branch Manager certifying the statement of Hardwari Lal Gupta as a agent operating the account of Ganga Ram. This aspect of the matter has not been touched at all by the first appellate court. It also appears that in second appeal, an affidavit of Hardwari Lal Gupta stating that it was he who was operating the bank account of Ganga Ram was filed. Necessary averments have been made in this regard in paragraph-10 of the counter affidavit. The petitioners could not dare to dispute either the said certificate issued by the bank or the affidavit of Hardwari Lal Gupta (daughter''s son of Ganga Ram) is in any manner wrong or incorrect. They have not filed any such certificate issued by the bank in their favour.

First appellate court was duty bound to have considered the findings recorded by the trial court holding that the Will is surrounded by the suspicious circumstances. The only explanation given to disinherit the lone son is that he is Awara. But there is no explanation as to why no provision has been made for the married daughters who were living with the testator. The Apex Court in the case of Ram Piari v. Bhagwant, AIR 1990 SC 742, has held that the testator, a father disinherited one daughter, who executed a will bequeathing all his property in favour of sons of one daughter and disinherited the other daughters who had no sore or sour relations with testator, held that finding of fact as to genuineness of Will recorded by the Court can be interfered with under Article 136 of the Constitution of India. In other words, the Will was not held to be a genuine document by the Apex Court by reversing finding of all the courts below. Applying ratio of the cases, it may be noted that here the beneficiary is nephew. In normal course of conduct a person will not disinherit his son and married daughters and will not prefer nephews who were not residing with him.

The ruling laid down in the case of Ram Piari (supra) has been followed in Gurdial Kaur and others Vs. Kartar Kaur and Others, of the said judgment are reproduced below:

The law is well-settled that if there is suspicious circumstance about the execution of the will, it is the duty of the person seeking declaration about the validity of the will to dispel such suspicious circumstances. In this connection, reference may be made to the decision of this Court in Rani Purnima Devi and Another Vs. Kumar Khagendra Narayan Dev and Another, It has been held in the said decision that if a will being registered and having regard to the other circumstances, is accepted to be a genuine, the mere fact that the will is a registered will it will not by itself be sufficient to dispel all suspicions regarding the validity of the will where suspicions exist. It has been held that the broad statement by witness that he had witnessed the testator admitting execution of the will was not sufficient to dispel suspicions regarding due execution and attestation of the will. It has been specifically held that registration of the will by itself was not sufficient to remove the suspicion. Relying on an earlier decision of this Court reported in H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, it has been held in the said decision that where the propounder was unable to dispel the suspicious circumstances which surrounded the question of valid execution and attestation of the will, no letters of administration in favour of the propounder could be granted.

The law is well stated 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 suspicious 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 been upheld by the High Court by the impugned judgment, we do not find any reason to interfere with such decision. This appeal, therefore, fails and is dismissed without any order as to costs.

Learned Counsel for the petitioners has relied upon the case of Smt. Manorama Srivastava and Another Vs. Smt. Saroj Srivastava, wherein, it was found that execution and attestation of Will as required under the law was satisfactorily proved. It was also proved that the testator was of sound mind and was not suffering from any ailment as to cast doubt on his mental capacity at the time of executing the Will. In my considered view, the said case does not advance the case of the petitioners. It was not a case where the execution of Will was surrounded by suspicious circumstances and is therefore, distinguishable on facts.

Taking into consideration the entire facts and circumstances of the case that the propounder had a lone son and three daughters and no satisfactory or convincing reason has been mentioned in Will in question for disinheriting, a very heavy burden was upon the plaintiffs to prove by cogent evidence for disinheriting them which they have failed to prove. A bald statement that Om Prakash is unworthy or vagabond in the disputed Will, is not sufficient for bequeathing the property by a testator to his nephews instead of his son and daughters. The Board of Revenue has correctly applied the legal principles applicable to establish a Will while passing the impugned order.

Reference was made to Bhojai Vs. Salim Ullah and Others, wherein, it has been held that the question whether or not an inference of fact should be drawn from certain evidentiary facts is itself a question of fact and a finding of fact does not cease to be so merely because it is in the nature of an inference ''When the finding is one of fact, the fact that it is itself an inference from other basic facts will not alter its character as one of fact''. It is difficult to understand any relevancy to the case on hand.

Similarly, Roop Narain and Anr. v. Ram Chandra and Ors. 1973 R.D. 444, and Paras Nath Thakur v. Smt. Mohani Dasi (deceased) and Ors. AIR 1959 SC 1204 are distinguishable on fact.

Here is a case where the first appellate court has allowed the appeal by applying wrong principle of law relating to prove of Will. The Will is surrounded by suspicious circumstances with regard to the execution. The burden is upon the propounder of the Will to explain the suspicious circumstances satisfactorily by cogent evidence. Particularly on the fact of the present case, the first appellate court failed to address the various aspects of the case in its judgment, which were taken into consideration by the trial court to arrive at conclusion that the Will as propounded by the plaintiffs is not proved. Without addressing those circumstances, it proceeded to decide the appeal on the principle that the thump impression of the testator is proved on the Will and its execution is also proved, therefore the Will is proved which is short of the legal requirements. The first appellate court has failed to consider the vital aspects of the case and the principles of law applicable in relation to Will. Certainly, the substantial question of law was involved in the second appeal against the said judgment of the first appellate court.

The Board of Revenue has correctly applied the principles of law relating to proof of Will. It has noted that Om Prakash is married who has got two daughters. One of whom has died. He has also appeared in the witness-box. This shows that he is not mad or insane though he may be a bit mentally underdeveloped. It has also come on record that he is not criminal or negligent to his family. These were the reasons, which impelled Ganga Ram to execute the registered Will in favour of his lone son and three married daughters. This is quite in conformity with the conduct of a loving father. There is no compelling circumstance to induce Ganga Ram to revoke his earlier registered Will by an unregistered Will and bequest his property in favour of his nephews. In the subsequent Will Gaga Ram has assigned no reason to disinherit his daughters. This shows that testator Ganga Ram was not in a position to exercise his own judgment and was made to act at the behest of the propounder and the whole transaction is thus, surrounded by suspicious circumstances which the plaintiffs have not tried to dispel.

Cumulative effect of all the circumstances, taking into consideration raises a genuine doubt regarding the genuineness of the disputed Will and as to whether the same had, in fact, been executed by testator, and if so of his own free will.

Taking the point that the substantial question of law was not framed in the second appeal by the Board of Revenue, it may be noted that no such grievance or plea has been set out in the writ petition. Learned Counsel for the petitioners was asked to show the ground in this regard in the writ petition but he failed to do so. He could not point out any such averment if any, anywhere in the writ petition. Undoubtedly, requirement of framing of substantial question of law cannot be disputed but as has been set up by the Hon''ble Apex Court that non framing of substantial question of law will amount the procedural irregularity.

It has been held that after amendment in Section 100 CPC, a substantial question of law is required to be framed. It is not out of place to mention here that the provisions of CPC have been made applicable to the proceedings under U.P.Z.A. and L.R. Act. However, the question remains as to whether the amended CPC will be applicable or not. Learned Counsel for the petitioners relied upon certain decisions including Ram Phal and Anr. v. State of U.P. and Ors. 2007 (102) RD 682. In this case the High Court has held that from reading of Section 331(4) read with Section 341 of U.P.Z.A. and L.R. Act, framing of substantial question of law in second appeal is mandatory. The High Court has referred certain decisions given by the Apex Court interpreting Section 100 CPC (as amended). At the same time, it may be noted that there are judgments of the Apex Court wherein it has been laid down that non-framing of substantial question of law by itself is not sufficient to set aside a judgment of the High Court delivered in a second appeal u/s 100 CPC, unless it is shown that some prejudice has been caused to the party. It is only at the best a procedural irregularity.

In the case of Kannan (Dead) through LRs. and Ors. v. V.S. Pandurangam (Dead) through L.Rs. and Ors. 2008 (70) ALR 692 it has been observed that merely because no substantial question of law has been formulated by the High Court that does not mean that the judgment of the High Court automatically becomes a nullity or that it must necessarily be set aside by the Apex Court on that ground alone. The appellant must also show prejudice to him on that ground alone. More or less, the same view has been expressed in the case of Nangali Amma Bhavani Amma v. Gopal Krishnan Nair and Ors., (2004) 8 SCC 785. wherein it has been laid down that although High Court had not framed substantial question of law in the strict sense, nevertheless it was found found from para 3 of the impugned judgment that the High Court had indicated the question of law which arose out of the decision of the First Appellate Court and which required determination u/s 100 of CPC. This was held to be substantial compliance with the requirement of Section 100 of CPC and non framing of substantial question of law on these facts was not considered to be a ground to set aside the decision of the High Court.

In the alternative, the Court is not inclined to remand the matter back to the Board of Revenue for framing the substantial question of law involved in the second appeal for the reason that the matter has been pending in this Court for the last about 19 years. The litigation started in the year 1988. There has been a criminal litigation and about 22 years have already gone. The Court is of the view that the substantial justice has been done to the parties. By passing an order of remand, it will amount giving a new life to the litigation.

It may be noticed that the petitioners tried to interfere in the possession of the respondents and the proceedings u/s 145 Cr.P.C. was drawn. The plaintiffs in spite of opportunity given to them failed to appear to contest the proceedings u/s 145 Cr.P.C. and the property in dispute was ultimately, released in favour of the contesting respondents. There has been a long drawn litigation and the time has come to conclude it and draw a final curtain.

I find no legal infirmity in the impugned order. There is no merit in the writ petition, which is devoid of substance. Learned Counsel for the petitioners could not point out any legal error or defect in the impugned order.

The writ petition is dismissed. No order as to costs.