Mahipal Singh and Others vs Jagannath Singh and Others

Sanjay Yadav, J—Heard on admission.

This is defendant''s Second Appeal directed against the Judgment and Decree dated 15.9.1999 passed in Civil Appeal No. 51-A/1999 affirming the Judgment and Decree dated 30.09.1996 passed in Civil Suit No. 61-A/1989.

Plaintiffs brought an action for 1/5th share in the property situated at Mouza Kabar Tehsil Raghuraj Nagar bearing Khasra No. 15 area 0.930; Khasra No. 181 area 0.334, Khasra No. 190 area 0.119 Khasra No. 191 area 0.188 and Khasra No. 192 area 5.474 and at Mauza Kailashpur Tehsil and District Satna Khasra No. 64 area 2.552 and for declaration of will dated 5.1.1976 as null and void. On the plea that Shankar Singh who owned the property died intestate in the year 1932, he had no male issues and daughters only. That after the death of Shankar Singh his widow was recorded in revenue record as owner. She was taken care of by all the daughters. However one of her daughter Pyaribai and her husband Mahipal Singh who was in Jail till December, 1976 stayed back after the death of Bittibai and by will dated 5.1.1976 started claiming to be the owner of suit property which otherwise was to be divided amongst five daughters viz., Manrajwa, Chuniya, Kuhurwa, Gujratiya and Pyaribai. As one of the daughter Malkaniyan died issueless.

Defendants No. 1, 2, 3 and 4 contested the case. Remaining defendants remained ex parte.

In their written statement defendant No. 1 and 2, it was contended that having taken care of Bittibai she bequeathed the property in their name.

Defendant No. 3 contradicting the claim of defendants No. 1 and 2 and that of the plaintiffs, stated that he being treated as son and was in possession of suit property is the true owner and that Bittibai had no legal right to execute the will.

Defendant No. 4 took the plea that since the land was gifted to him on 22.8.1974 as the same was being redeemed from the mortgage with defendant No. 5 who in his separate written statement supported co-defendant''s claim.

Trial Court framed and answered the issues as under-

Answering issues No. 2 and 8 against defendants No. 1 and 2 and issue No. 3 against defendant No. 3 the trial Court found that the will was not bonafide and was shrouded with doubts. These findings are reflected in paragraphs 18 to 26. In paragraph 25 the trial Court found:

Trite it is that, if the bonafides in execution of the will is doubted the same does not confer a valid title/right in the beneficiary/beneficiaries.

In Smt. Jaswant Kaur Vs. Smt. Amrit Kaur and Others, AIR 1977 SC 74 : (1977) 1 SCC 369 : (1977) 1 SCR 925 it is held-

"9- In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court''s conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a ''cogent and convincing explanation of the suspicious circumstances surrounding the making of the will."

In Gurdev Kaur and Others Vs. Kaki and Others, AIR 2006 SC 1975 : (2007) 1 CTC 334 : (2006) 5 JT 72 : (2006) 4 SCALE 436 : (2007) 1 SCC 546 : (2006) 1 SCR 27 Supp : (2006) AIRSCW 2404 : (2006) 3 Supreme 631 it is held-

"77- The High Court has clearly deviated from the settled principle of interpretation of the Will. The Court does not sit in appeal over the right or wrong of the testator''s decision. The Court''s role is limited to examining whether the instrument propounded as the last Will of the deceased is or is not that by the testator and whether it is the product of the free and sound disposing mind. It is only for the purpose of examining the authenticity or otherwise of the instrument propounded as the last Will, that the Court looks into the nature of the bequest."

As regard to share in property. The trial Court found-

These being pure finding of facts concurred with by the Appellate Court, no substantial question of law arises for consideration; Appeal fails and is dismissed. No costs.