APPEAL FROM THE APPELLATE DECREE No.162 OF 1996 ---- Against the judgment and decree dated 19.04.1996 passed by District Judge, Katihar in Title Appeal No.21 of 1992 affirming the judgment and decree dated 30.7.1992 passed by Subordinate Judge III, Katihar in Title suit No.04 of 1979 decreeing the said title suit. ---- 1(a). Ujjway Kumar 1(b). Uday Kumar Both minor sons of the deceased Surya Narain Sah 1(c) Poonam Kumari, daughter of the deceased Surya Narain Sah 2. Chandra Mohan Sah son of Narsingh Sah All are residents of Mohalla L.L.Road Sahibganj, P.S. and District Sahibganj, at present resident of Semapur, P.S.Barari, District –Katihar. -- Defendants-Appellants-Appellants. Versus 1. Kedar Sah 2. Satya Narain Sah, both sons of Late Ramchandra Sah Both residents of Mohalla Keshopur, P.S. Jamalpur, District-Munger. 3. Smt. Chandrawati Devi W/O Hari Nath Prasad Sah Resident of Village Semapur, P.S. Barari, District-Katihar. 4. Shankar Prasad Sah S/O Ramdas Sah. 5. Manju Kumari 6. Anju Kumari 7. Asha Kumari 8. Dipabali Kumar; Sl.nos.5 to 8 all minor daughters of Shankar Prasad Sah. 9. Kanhaiya Prasad Sah minor son of Shankar Prasad Sah All are residents of Kiranapatti, P.S. and District-Munger. -- Plaintiffs-Respondents-Respondents. ---- For the appellants : Mr. Tarakant Jha, Senior Advocate Mr.Baidyanath Thakur, Advocate For the respondents : M/s Arun Prasad Ambastha & Arbind Kumar Anand, Advocates. ---- P R E S E N T HON'BLE MR. JUSTICE S.N. HUSSAIN ---- S.N.Hussain,J. This second appeal has been filed by defendants-appellants-appellants challenging the judgments and decree of both the learned courts below. 2. The matter arises out of Title Suit No.04 of 1979 which was filed by the plaintiffs-respondents-respondents with respect to 25 ½ decimals (now 21 decimals) of C.S. Plot No.232 (part) which is now R.S.Plot No.495/1128 appertaining to C.S.Khata no.2 (part) which is now R.S.Khata No.110 of Thana - 2 - No.204 in Mouza Aminabad Semapur within Barari Police station in the district of Katihar for the following reliefs: (a) Declaration that the plaintiffs are legal heirs of Late Jharoo Sah having inherited suit property detailed in Schedule a of the plaint. Declaration that the document purported to be Will of Late Jharoo Sah was created by fraud & forgery of defendants duping Jharoo Sah to put his sign on it without understanding its nature and implication and defendants did not get any interest in the suit property on its basis. (b) Cost of suit and any other relief. 3. The said suit was contested by the defendants and after considering the pleadings of the parties, the learned trial court framed the following issues for deciding the title suit. (i) Is the suit as framed maintainable? (ii) Have the plaintiffs got cause of action for the suit against defendants? (iii) Is the suit barred by law of limitation? (iv) Whether the registered deed of Will dated 02.02.1970, purported to be executed by Jharu Sah is valid, genuine and effective, and had Jharu Sah bequeathed his properties to defendants? (v) Are the plaintiffs legal heirs of Late Jharu Sah and have the properties left by Jharu Sah devolved on the plaintiffs? (vi) Are the plaintiffs entitled to the reliefs prayed for in the suit? 4. After considering the arguments led and evidences produced by both the parties, learned Subordinate Judge, III, Katihar vide his judgment and decree dated 30.07.1992 decreed the suit on contest with cost after arriving at the following findings:- (a) Initial burden to prove that the deed of Will in question is valid lies with defendants. (b) Evidence and circumstances speak a volume against the genuineness of deed of Will in question. (c) Contents of deed of Will in question also creates suspicion against the aforesaid deed. (d) Ext.-E/3 is certified copy of High Court order in F.A.No.193 of 1985 filed by defendants against order of abatement of Probate Case. - 3 - (e) There was no reasonable occasion for Jharu Sah to execute a deed of Will in favour of his nephews depriving his own daughters and their progenies from getting his properties. (f) Documentary evidences are during pendency of this suit and hence it has no effect on this suit. (g) Defendants could not discharge the initial burden of proving proper and valid execution of alleged Will and its registration, hence it could not be proved in accordance with law. (h) Deed of Will was not executed by Jharu Sah out of his free will and after understanding its contents and implication. (i) At present defendants have taken possession and management of suit properties. (j) Deed of Will is not valid, genuine or effective and Jharu Sah has not bequeathed his properties to defendants. (k) Plaintiffs are legal heirs of Jharu Sah and his properties have devolved upon them. (l) Suit is not barred by limitation. (m) Registered deed of Will dated 2.2.1970 by Jharu Sah is not his last Will and he had not bequeathed his properties to defendants through that Will. 5. Against the aforesaid judgment and decree of the trial court, the defendants filed Title Appeal No.21 of 1992 and after considering the pleadings of the parties, the learned court of appeal below formulated the following points for deciding the title appeal:- (i) Whether the registered deed of will dated 02.02.1970 is a valid and genuine document or is an outcome of fraud and forgery committed by the defendants on Late Jharu Sah? (ii) Whether the plaintiffs are the legal heirs of Late Jharu Sah? - 4 - 6. The learned District Judge, Katihar heard the parties and after considering their arguments and evidence dismissed the said title appeal vide his judgment and decree dated 19.04.1996 on contest with cost after arriving at the following findings:- (a) Defendants never lived with Jharu Sah and never rendered any service to him and they some time before the death of Jharu Sah brought the Will in existence by obtaining signature of Jharu Sah in drunken state. (b) Non examination of defendant no.1 who was one of the beneficiaries of the Will creates doubt regarding validity and genuineness of the will. (c) No reason shown as to why Jharu Sah would execute Will of all his properties in favour of nephews without considering about his daughters. (d) Plaintiffs have found that the Will was not a valid and genuine document, rather it is an outcome of fraud and forgery committed by defendants on Jharu Sah who without fully understanding the nature and implication of the document put his sign on being duped by defendants. (e) Admitted position is that plaintiffs are legal heirs, i.e. daughters of Jharu Sah and their sons. 7. Against the judgments and decree of both the learned courts below, the instant second appeal was filed by the defendants and this court while admitting the said second appeal under Order XLI Rule 11 of the Code of Civil Procedure formulated the following substantial question of law:- (a) Whether the suit for declaration of title is maintainable when the probate case was pending in the court of competent jurisdiction and probate has not been obtained? 8. However, when the matter was taken up on 16.03.2009, the learned counsel for the appellant raised another question as substantial question of law which is as follows:- - 5 - (b) Whether the learned courts below failed to appreciate that the vital question to be decided in this case was that at the time of execution of the will Jharoo Sah was in intoxicated condition, but there was no material to support the said contention? 9. Learned counsel for the appellants argued that Jharu Sah and Narsingh Sah were brothers, out of whom, Jharu Sah had three daughters, namely Shyama, Chandrawati and Manorama, whereas Narsingh Sah had two sons Surya Narain Sah and Chandra Mohan Sah. Out of the said persons, Surya Narain Sah and Chandra Mohan Sah were defendants no.1 and 2 in the title suit, whereas Shyama and Chandrawati were plaintiffs no.1 and 2 in the title suit, but since Manorama had died, her husband Shanker Prasad was plaintiff no.3 and her children were plaintiffs no. 4 of 8. Genealogy 10. Learned counsel for the defendants-appellants further submitted that admittedly the Will in question executed by Jharu Sah with respect to the suit properties in favour of the defendants-appellants contained the L.T.I. of Jharu Sah, hence the main question in issue was whether the Will was executed by Jharu Sah in an intoxicated condition, but there was no material to prove it, which point was completely ignored by the learned courts below while deciding the cases and decreeing the claim of the plaintiffs. He also claimed that the onus was clearly upon Jharu Sah Narsing sah Shyama (Pl.1) Chandrawati (Pl.2) Manorama (d) = Shankar Pd. (Pl.3) Surya Nr.Sah (D.1) Chandra Mohan Sah (D.2) Pl.4 Pl.5 Pl.6 Pl.7 Pl.8 Kedar Satya Narain - 6 - the person who had alleged duping or coercion, but in the instant case, the learned courts below did not put onus on the plaintiffs and also failed to realise that the said Will was fully proved by its scribe (D.W.12), its witness (D.W.13) as well as D.W.14 who was defendant no.2 in the suit. 11. So far substantial question of law no.(a) is concerned, it is not in dispute that Title Suit No.04 of 1979 was filed by the respondents against the appellants for the aforementioned reliefs in the year 1979 and much thereafter in the year 1981, the defendants-appellants filed Probate Case No. 04 of 1981 for probate of the Will in question dated 02.02.1970 (Ext.-B), but the said probate case was dismissed on 25.01.1985 as abated by the District Judge, Katihar due to non- substitution of heirs of Shyama Devi, plaintiff no.1, who had died much earlier. Against the said order dated 25.1.1985 passed in the probate case, the defendants- appellants filed F.A.No.193 of 1985 which is still pending in this High Court. In the said circumstances, it is quite apparent that the probate case was filed in 1981, i.e. much subsequent to the filing of the title suit in 1979 and also that the said probate case having been dismissed in the year 1985 was not pending at the time of the dismissal of the title suit in the year 1992. In the said circumstances, the title suit was quite maintainable and there was no question of any in competency of the trial court in deciding the title suit. 12. So far substantial question of law no.(b) is concerned, the concurrent finding of fact of both the courts below on the basis of valid and reliable evidence was that Jharu Sah was in the habit of taking intoxicant and always remained in such condition. The alleged scribe of the Will, who deposed as D.W.12, has clearly stated that he drafted the Will at the instance of the father of the scribe and not at the instance of Jharu Sah, but he never read over and explained the contents of the Will to Jharu Sah and neither Jharu Sah nor any attesting witnesses signed on the Will in his presence and they were also not known to him. Defendant no.2 also while deposing as D.W.14 clearly stated that both the defendants resided with their father - 7 - Narsingh Sah at different places and studied there and had no opportunity to live with Jharu Sah and further according to the age given by him, defendant no.2 was only 7 to 8 years at the time of Will. The other defendant, namely defendant no.1, did not even come to depose. In the said circumstances, the ground taken by the defendants that the Will was executed by Jharu Sah due to service rendered to him by the defendants to Jharu Sah was absolutely frivolous and was against the statement of the defendants themselves. 13. In addition to the evidence of the defendants and his witnesses, the witnesses of the plaintiffs fully proved the claim of the plaintiffs. P.W.10 specifically deposed that the Will was got executed by playing fraud upon Jharu Sah who was a drunkard and his L.T.I. was not taken in his correct mental status and it was obtained in a wrong manner by bringing into collusion the scribe and the attesting witnesses. In addition to that P.W.12, who was the son of the attesting witness of the Will, clearly deposed that defendant no.1 got the deed executed by Jharu Sah in the state of intoxication and the Will was not executed by Jharu Sah in his sound mind knowing the contents thereof. In the said circumstances, the learned trial court was quite justified in coming to the conclusion in paragraph 21 of its judgment that the deed of Will dated 02.02.1970 purported to be executed by Jharu Sah was not executed by him out of free will and after understanding the complication and implication of the deed. The learned court of appeal below also rightly came to the conclusion in paragraphs 18 and 19 that Jharu Sah was addicted to liquor and in the influence of liquor, he was duped by the defendants to put his signature on the deed of Will. 14. Furthermore, from the facts and circumstances of the case, it has been proved that the said Jharu Sah had three daughters and even according to the statement of the defendant in his deposition, it is quite apparent that the defendants never served Jharu Sah and hence no occasion was shown for the said Jharu Sah to execute a deed of Will of all his properties to his nephews without making any future - 8 - provision either for himself or for his daughters. In the said circumstances, it is quite apparent that the plaintiffs had been able to discharge their onus, whereas the defendants completely failed to disprove the claim of the plaintiffs by any valid, reliable and legal evidence. 15. In the aforesaid facts and circumstances, this court finds that the appellants have failed to substantiate the questions of law raised by them. Furthermore, this court does not find any illegality in the impugned judgments and decree of the learned courts below and, accordingly, this second appeal is dismissed. However, in the facts and circumstances of this case, there will be no order as to cost. (S. N. Hussain, J.) Patna High Court, Dated, the 13th April, 2009. N.A.F.R. Sunil/