FIRST APPEAL No. 203 OF 2007 Against the Judgment and Decree dated 12.06.2007 passed by Sri Mahatam Prasad, Ist Addl. District Judge, Aurangabad in Title Suit No. 1 of 2005. SHAILENDRA SINGH @SHAILENDRA ……..……….Defendant-Appellant Versus DILIP KUMAR SINGH ..…………… Plaintiff-respondent ******** For the Appellant : Mr. Nandlal Kumar Singh, Advocate, Mr. M. Lata, Advocate For the Respondent : None Dated : 29thday of March, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T 1. The defendant has filed this Appeal against the Judgment and Decree dated 12.06.2007 the decree singed on 11.07.2007 by Sri Mahatam Prasad, the learned Ist Addl. District Judge, Aurangabad in Title suit No.1 of 2005 arising out of letters of administration case No.2 of 1995 / 5 of 1996. 2. It appears that originally application for probate was filed by the respondent which was numbered as probate case No.2 of 1995. The appellant appeared and contested the said case and on the prayer of the defendant, the said case was converted to title suit by order dated 30.09.2005. Mungeshwar Sahoo, J. 2 3. The plaintiff-respondent, Dilip Kumar Singh prayed for grant of probate and letters of administration regarding the will executed by Mostt. Lalmani Kuer in favour of Dilip Kumar Singh. It is alleged that Kailash Singh and his wife Mostt. Lalmani Kuer were issueless and, therefore, they brought up Hiramani Devi whose mother has died when she was aged about 9 years. Subsequently, husband of Lalmani Kuer, namely, Kailash Singh died. Thereafter, Hiramani Devi took Lalmani Kuer to her residential places and looked after her. Since, Lalmani Kuer had love and affection with Hiramani Devi and as she had brought up her from her childhood, she intended to execute a ‘Will’ in favour of husband of Hiramani Devi. Accordingly, a registered will was executed on 20.09.1994 for the lands described in the will. 4. The appellant filed the objection alleging that the probate case was not maintainable as Dilip Kumar Singh is not named as executor. The alleged will is bogus, fraudulent and not executed by Mostt. Lalmani Kuer. Lalmani Kuer never resided at village Pipraura. Lalmani Kuer was residing at village Bara and she lost conscious in August, 1994. She remained bed ridden. The defendant-appellant Shailendra Singh is adopted son of Late Kailash Singh and Lalmani Kuer since 28.04.1987. Bharat Singh and his wife gave Shailendra Singh in adoption to Kailash Singh and Lalmani Kuer after performing religious rites and ceremonies. Therefore, Shailendra Singh has right title and possession over the lands. 5. On the basis of the aforesaid pleadings, the learned Court below framed following issues : (i) Is the case as framed maintainable? (ii) Whether the plaintiff has got valid cause of action for the suit? (iii) Is the will dated 20.09.1994 executed by Most. Lalmani Kuer in favour of Dilip Kumar Singh valid genuine and binding on her estate? 3 (iv) Had Most. Lalmani Kuer put her thumb impression on the will having gone through the contents? (v) Whether said will was executed by Most. Lalmani Kuer in the healthy state of mind? (vi) Is the case properly valued and the court fee paid sufficient? (vii) Is the case barred by principle of resjudicate? (viii) To what relief or reliefs the plaintiff is entitled? 6. After trial, the learned Court below found that Lalmani Kuer was in healthy state of mind and executed the will. The learned Court below also found that neither religious rituals and ceremonies as per Hindu law has been proved by the defendant and, therefore, the case of the defendant does not stand proved. On these findings, the learned Court below allowed the application. 7. The learned counsel for the appellant submitted that there are overwhelming oral as well as documentary evidence to prove that the appellant is the adopted son of Kailash Singh and Lalmani Kuer but the learned Court below has wrongly disbelieved the said evidences. The learned counsel further submitted that at the time of alleged execution of Will, Lalmani Kuer was bed ridden and, there was no question of execution of any will by her arises. In fact the will has been procured by the respondent. Dilip Singh is not related with Lalmani Kuer and, therefore, there was no occasion for Lalmani Kuer to execute Will in favour of Dilip Singh regarding all her properties. Therefore, the impugned Judgment and Decree are liable to be set aside. 8. In spite of service of notice, nobody appeared on behalf of the respondent. 9. In view of the above submissions of the learned counsel for the appellant, the following points arises for consideration in this appeal : 4 (i) Whether the will executed by Lalmani Kuer is forged, fabricated, procured and whether Lalmani Kuer was bed ridden or whether the will is valid and executed by Lalmani Kuer in sound state of mind. (ii) Whether the appellant is adopted son of Lalmani Kuer and her husband Kailash Singh and whether the impugned Judgment and Decree are sustainable in the eye of law. 10. Point No. (i) 8 witnesses have been examined on behalf of the plaintiff-respondent. P.W.1 is attesting witness on the registered will dated 20.09.1994. He has stated that on 20.09.1994, Lalmani Kuer executed the will in favour of Dilip Kumar Singh. At her instance, Ramashish Sharma scribed the will. Ramashish Sharma thereafter read over and explained the contents of the will to Lalmani Kuer who after understanding the same put her thumb impression in presence of the witness, Alakh Dev Singh and this witness and at her instance, the other witnesses signed after going through the will. He has further stated that Shatrughan Singh also signed as witness on the will. This witness has identified his signature which as been marked as Ext.1. He has further stated that at the time of execution of the will, Lalmani Kuer was hale and hearty. Likewise P.W.2 has stated the same thing as that of P.W.1. He has also stated that at the instance of Lalmani Kuer, he put his signature on the will. He has identified his signature as Ext.2. 11. P.W.3 is witness on the question that Lalmani Kuer was leaving at village Pipraura in the house of Dilip Kumar Singh who was looking after her and maintaining her. Shradh was performed at village Pipraura on 20.03.1995. Dilip Kumar Singh had given Mukhagni. He has further stated that Lalmani Kuer was keeping Hiramani Devi as her daughter. The defendant Shailendra Kumar Singh is his cousin. Therefore, this witness is relation of Shailendra Kumar Singh also. 5 12. P.W.4, Ramashish Sharma is scribe of the registered will. He has fully supported the case of the plaintiff-respondent. He has stated that he read over and explained to Lalmani Kuer who finding the same to be true put her L.T.I. on the will and at her instances, the other witnesses put their signatures. He has also identified his signature which has been marked Ext.3. P.W.5 is the plaintiff himself who has fully proved his case. He has stated that Hiramani Devi was looked after by Lalmani Kuer from her childhood and Lalmani Kuer got her married with him. When Lalmani Kuer was unhealthy, he brought her to his village Pipraura and she was treated by Doctors. She died on 20.03.1995. On 20.09.1994, she had executed and registered will in favour of him. This witness has further stated that Shailendra Kumar Singh is the son of Bharat Singh and not the son of Kailash Singh. He has proved Ext.4 the Vakalatnama filed by Shailendra Kumar Singh. In the Vakalatnama, the father’s name of Shailendra Kumar Singh has been mentioned as Bharat Singh. 13. From perusal of the Will itself, it is clear that at the time of execution and registration of the will, Lalmani Kuer was hale and hearty. The plaintiff has also proved the Doctors prescription which have been marked Ext.3, 3/A and 3/B and also proved the case memo which have been marked as Ext.3/C to 3/(i). The investigation report of Lalmani Kuer has been proved as Ext.6. It appears that the plaintiff-respondent produced all these documents to show that he was getting her treated by the Doctors when she was ill. From perusal of Ext.4 dated 26.03.2003, it appears that the father’s name of the appellant has been mentioned as Bharat Singh, the appellant has signed this Vakalatnama and the Vakalatnama has been filed in Case No.25 of 2003 in the Court of C.J.M., Aurangabad. The probate case has been filed in the year 1995. Therefore, during the pendency of this case also, the appellant is admitting himself to be the son of Kailash Singh. 6 14. The defendants has also adduced oral evidences and also documentary evidences. D.W.1 has stated that plaintiff is not son-in-law of Lalmani Kuer and they adopted the defendant on 28.04.1980. Shradh of Kailash Singh and Lalmani Kuer was performed by Shailendra Kumar Singh. D.W.2 has also stated that Shailendra Kumar Singh was adopted by Kailash Singh and Lalmani Kuer 26 years ago and the ceremonies were performed. He denied that Lalmuni resided with Haramani Devi and Dilip Kumar Singh. Likewise the other witnesses D.W.4 to 7 have stated that Shailendra Kumar Singh is adopted son of Kailash Singh and Lalmani Kuer who adopted him after performing the required ceremonies. They have also stated that Lalmani Kuer never resided with Dilip Kumar Singh. The defendant has also proved Ext.A series, the rent receipts. The medical prescription has been proved as Ext.B and B/1. D.W.12 is Mukhiya of the village who has proved the certificate granted by him relating to B.P.L. Ext.’D’ has been proved by the defendant to show that in the bail bond, Shailendra Kumar Singh mentioned his father’s name as Kailash Singh. It appears that this bail bond has been executed on 11.08.2006 when the case was pending between the parties. Therefore, it is only a self serving document. No doubt, Ext. ‘E’ which is the school register where the father’s name of Shailendra Kumar Singh has been mentioned as Kailash Singh but only on that ground, it cannot be said that the defendant has been able to prove that he is adopted son. 15. From perusal of the evidences as discussed above, coupled with the Exts. filed on behalf of the plaintiff-respondent and the death certificate, Ext.7, it appears that Lalmani Kuer was residing with the plaintiff at village Pipraura and she died on 20th March, 1995. There is no satisfactory evidence adduced by the defendant-appellant that at the time of execution of the will, Lalmani Kuer was bed ridden and was unable to move. As discussed above, 7 the plaintiff has produced the attesting witnesses and the scribe who have proved the will as required under the provisions of Section 68 of the Evidence Act and Section 63 of the Indian Succession Act. From perusal of the evidence as discussed above, it is also clear that at the time of execution of the will, Lalmani Kuer was in healthy state of mind and after knowing and understanding the contents and implications of the will, she put her L.T.I. 16. In the case of Surendra Pal Vs. DR. Miss. Saraswati Arora reported in AIR 1974 (Supreme Court)1999 relating to burden of prove in probate proceeding, the Hon’ble Apex Court held that the propounder has to show that the will was signed by the testator, that he was at the relevant time in sound disposing state of mind, that he had understood the nature of disposition, that he put his signature to the testament of his own free will and that he had signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established the onus which is placed on the propunder is discharged. 17. In the present case as discussed above, it appears that propounder has been able to show that at the time of execution of the will, Lalmani Kuer was in good health and mind and, therefore, it is established in the present case that the will is valid, legal and executed according to law. Moreover, it is a registered will. 18. Point No. (ii) - In this case, according to the appellant, the plaintiff is not the son-in-law of Lalmani Kuer. The further case is that Lalmani Kuer had adopted Shailendra Singh on 28.04.1980. The witnesses examined on behalf of the defendant D.W.1 at paragraph 1 has stated that Dilip Singh, the plaintiff is not the son-in-law of Lalmani Kuer and at paragraph 2, he has stated that on 28.04.1980 Lalmani Kuer and her husband Kailash Singh adopted Shailendra Singh by taking him in their lap 8 and Bharat Singh and his wife gave Shailendra Singh to them in their lap. The evidence of D.W.2 is in the same line vide paragraph 1 & 2. It appears that the other witnesses have also deposed in similar line vide D.W.3 paragraph 1 & 2, D.W.4 vide paragraph 2 & 3, D.W.5 and 6 at paragraph 1 & 2, D.W.7 at paragraph 2 & 3, D.W.11 is the defendant himself. His evidence is also on the same line vide paragraph 2 & 3. Since adoption displaces the natural line of succession, adoption must be proved strictly. Therefore, necessarily the ingredients of adoption also must be proved strictly. In the present case, the adoption as alleged by the defendant took place in the year 1980 but there is no reliable evidence except the affidavit given by the witnesses to the effect that on the said date, the appellant was given in adoption. So far the case of the appellant that plaintiff is not the son-in-law is concerned, it may be stated here that it is not the case of the plaintiff that he is son-in-law. On the contrary, the case of the plaintiff is that Hiramani Devi was brought up by Lalmani Kuer as her daughter since childhood because Hirmani’s mother had died when she was aged about 9 years. Lalmani Kuer then got her married with the plaintiff Dilip Kumar Singh. Therefore, suspicion arises as to why Lalmuni and her husband would have adopted the appellant when they were keeping Hiramani Devi as their own child since her childhood. 19. In a decision reported in 1987 (2) S.C. Cases 338 AIR 1987 SC 962 Rahasa Pandiani (dead) by legal representatives and Ors. Vs. Gokulananda Panda and Ors., the Hon’ble Supreme Court has held at paragraph 4 as follows : “4. Before we advert to the relevant circumstances we consider it appropriate to advert to a note of caution sounded by this Court as early as in 1958 in Kishori Lal v. Chaltibai. We can do no better than to quote the relevant passage from the judgment of Kapur, J.: 9 As an adoption results in changing the course of succession, depriving wives and daughters of their rights and transferring properties to comparative strangers or more remote relations it is necessary that the evidence to support it should be such that it is free from all suspicion of fraud and so consistent and probable as to leave no occasion for doubting its truth. Failure to produce accounts, in circumstances such as have been proved in the present case, would be a very suspicious circumstance. The importance of accounts was emphasized by the Privy Council in Sootrugun v. Sabitra; in Diwakar Rao v. Chandanlal Rao; in Kishorilal v. Chunilal; in Lal Kunwar v. Charanji Lal and in Padamlal v. Fakira Debya;. When the plaintiff relies on oral evidence in support of the claim that he was adopted by the adoptive father in accordance with the Hindu rites, and it is not supported by any registered document to establish that such as adoption had really and as a matter of fact taken place, the court has to act with a great deal of caution and circumspection. Be it realized that setting up a spurious adoption is not less frequent than concocting a spurious Will, and equally, if not more difficult to unmask. And the court has to be extremely alert and vigilant to guard against being ensnared by schemers who indulge in unscrupulous practices out of their lust for property. If there are any suspicious circumstances, just as the propounder of the will is obliged to dispel the cloud of suspicion, the burden is on one who claims to have been adopted to dispel the same beyond reasonable doubt. In the case of an adoption which is not supported by a registered document or any other evidence of a clinching nature if there exist suspicious circumstances, the same must be explained to the satisfaction of the conscience of the court by the party contending that there was such an adoption. Such is the position as an adoption would divert the normal and natural course of succession. Experience of life shows that just as there have been spurious claims about execution of a Will, there have been spurious claims about adoption having taken place. And the court has therefore to be aware of the risk involved in upholding the claim of adoption if there are circumstances which arouse the suspicion of the court and the conscience of the court is not satisfied that the evidence preferred to support such an adoption is beyond reproach.” 20. As discussed above in the present case except the oral evidence that such and such date the appellant was adopted there is no other reliable evidence. There is no registered document evidencing adoption. At the time of death, Lalmani Kuer was residing with the plaintiff and she was being treated by him. As discussed above, the plaintiffs have been able to prove that Hiramani Devi was being brought up by Lalmani Kuer and she got her married with the plaintiff. This fact is not denied by the defendant. His case is that he was adopted son. As has been held by the Hon’ble Supreme Court, 10 the appellant failed to explain the suspicious circumstances as to why he could have been adopted. These suspicious circumstances further find support from Ext. ‘4’. All these evidences coupled with the suspicious circumstances clearly goes to show that the appellant was never adopted. Ext. ‘A’ series or Ext. ‘B’ series which are rent receipts and medical prescription do not show exclusively that she was residing with the appellant or she was being treated by the appellant when she was ill. I, therefore, ultimately find that the appellant failed to prove that he is adopted son of Lalmani Kuer and her husband Kailash Singh moreover even if he is adopted son then also on that ground alone, the plaintiff suit cannot be dismissed because I have already found that will has been validly executed by Lalmani Kuer in favour of the plaintiff. 21. In view of my above discussion, I find no reason to interfere with the findings of the learned Court below. Therefore, the findings of the learned Court below on both the points are hereby confirmed and accordingly both the points are answered in favour of the plaintiff-respondent. 22. In the result, I find no merit in this Appeal and accordingly this First Appeal is dismissed. There shall be no order as to cost. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 29thMarch, 2011 Sanjeev/.A.F.R.