Case: Ramesh Verma(D) Tr.Lrs Vs. Lajesh Saxena (D) By Lrs

These appeals arise out of the common judgment of the High Court of Madhya Pradesh in First Appeal Nos.29, 30 & 31 of 1991 dated 31.07.19973. The deceased first respondent herein/plaintiff had filed the suit for partition on 26.02.1970 claiming 1/8th of the share in the family properties. The trial Court by the judgment dated 31.01.1991 passed the preliminary decree for partition being Civil Original Suit No.71A/1984 and held that :-(i) Plaintiff Smt. Lajesh Saxena is entitled to get 1/12th share in the joint Hindu family property;(ii) Defendant No.1 Ramesh Verma is entitled to get 1/3rd share in the property of Bhagwanprasad and 1/12th share in the property of Jagan Verma totalling 5/12th of the whole;(iii) Defendant No.3 Rajiv Verma and defendant No.4 Rajat Verma are entitled to get jointly 1/12th share in the property of Prabhavati and 1/12th share in the property of Jaydevi i.e. total ½ share in the joint Hindu family property4. By holding so, the trial court accepted the execution of the Wills being Exhibit D/2 dated 07.12.1969 executed by Jaydevi in favour of Rajiv Verma and Rajat Verma and also Exhibit D/1 dated 23.10.1977 executed by Prabhavati in favour of Rajiv Verma and Rajat Verma5. Being aggrieved by the judgment and decree of the trial Court, deceased Ramesh Verma preferred an appeal before the High Court of Madhya Pradesh (FA No.29/1991). Sanjeev Kumar, son of plaintiff Lajesh Saxena as also the plaintiff-Lajesh Saxena filed appeals before the High Court in FA No.30/91 and FA No.31/1999, respectively6. After hearing the parties, the High Court vide its judgment dated 31.07.1991, allowed the appeal FA No.31/91 filed by Lajesh Saxena holding that plaintiff is entitled to 1/3rd share in stead of 1/12th share in the Joint Hindu Property. Consequently, FA No.29/91 and FA No.30/91 filed by Ramesh Verma and Sanjeev, respectively, were disposed of. The High Court held that the execution of the Will Exhibit D/1 (dated 23.10.1977), Exhibit D/2 Will (dated 07.12.1969) and Exhibit D/1/C (dated 22.05.1984 executed by Prabhavati) were not proved in accordance with Section 68 of the Indian Evidence Act and disbelieved the genuineness of all the three Wills7. Being aggrieved, Ramesh Verma (since deceased) through his legal heirs preferred these appeals.

Reasoning: 16. Insofar as the execution of the first Will dated 07.12.1969 is concerned, the witnesses Shyam Mohan Bhatnagar and scribe Mahesh Narayan have stated that the testator Jaydevi executed the Will and witnesses Shyam Mohan and R.P. Johri have signed. Witness Johri was the brother-in-law of Ramesh Verma and thus interested witness. Scribe Mahesh Narayan is known to mother-in-law of Ramesh Verma. After referring to their evidence, High Court held that execution of the Will has not been proved. Further, the High Court in its judgment has pointed out the contradictions in their evidences and recorded the factual finding that the Will could not have been executed in the manner as alleged by the witnesses. We do not find any reason to interference with the factual findings recorded by the High Court17. Likewise, insofar as the findings recorded by the High Court regarding Will Exhibit D/1-Will dated 23.10.1977, the same was said to have been notarized by the neighbour of Ramesh Verma, namely, Bhagwati Prasad Singhal and said to have been attested by Shivaji Rao Tambat. In respect of Will Exhibit D/1 also, after referring to the evidence that Ramesh Verma told that there is a Will and hence witnesses and Prabhavati signed the Will, the High Court has recorded factual finding that Ramesh has manouvred the Will and the execution of Exhibit D/1 Will is not acceptable. We do not find any reason to interfere with the factual findings arrived at by the High Court18. Insofar as the submissions of the learned Senior Counsel regarding the dwelling house property are concerned, the High Court in its judgment in paragraphs 17 and 18 has pointed out that a portion of the house property has been let out. After referring to the evidence of Ramesh Verma, it has been pointed out by the High Court that presently the bungalow (Kothi) is now let out for marriage purposes and at the time of his giving evidence rent of L400 per day was collected19. As rightly submitted by learned Senior Counsel for the respondents the expression dwelling house wholly occupied occurring in Section 23 of the Hindu Succession Act assumes importance. When it is brought in evidence that the house property is not wholly occupied by the family members and the High Court was right in holding that the house property is also available for partition and the deceased plaintiff Lajesh Saxena is entitled to 1/3rd share. The findings recorded by the High Court are based upon facts and evidence and are unimpeachable and we do not find any reason to interfere with the conclusion arrived at by the High Court