Mahesh Kumar (D) By Lrs vs Vinod Kumar & Ors

2. For the sake of convenience, the parties are being referred to as the appellant and the respondents.

3. Appellant Mahesh Kumar who is now represented by his legal representatives, respondent Nos. 1 and 2 and their father were members of the joint family. In 1965, respondent No.2 took his share and separated from the joint family. After 20 years, another partition took place among the remaining members of the joint family. In the second partition, respondent No.1 got 9.83 acres land of village Nimchakhurd and a house situated at Timarni Bazar. The appellant got the other house situated at Timarni and cash and Shri Harishankar got land comprised in Khasra No.92/1, 92/2 and 92/9 situated at Timarni along with the bungalow constructed over it.

4. In 1995, respondent No.1 filed Civil Suit No.20A of 1995 and prayed for grant of a declaration that by virtue of registered Will dated 9.6.1989 executed by Shri Harishankar, he had become sole owner of the property shown in red colour in the map annexed with the plaint and half portion in the shop situated 3 in the bungalow. He also prayed for grant of a decree of possession by alleging that after the death of father Shri Harishankar, he had asked the appellant to give shares to the brothers in terms of Will dated 9.6.1989 but latter declined to do so. The last prayer made by respondent No.1 was that the appellant may be directed to pay him share in the arrears of rent of the Bungalow which was leased out to Firm Ramesh Chand Dinesh Kumar Agarwal.

5. In his written statement the appellant claimed that after the 2nd partition, the parents started living with him and he and his family was looking after them. According to the appellant his mother died in January, 1992 and after her death, Shri Harishankar executed Will dated 10.2.1992 and bequeathed his share to him because he was looking after the parents and took care of the mother till her death on 23.1.1992 (Ex. D-2). He also pleaded that respondent Nos.1 and 2 were not given anything because they had already got their respective shares in the joint family property.

7. Respondent No.1 amended the plaint more than once but did not seek a declaration of invalidity qua Will dated 10.2.1992 on the ground that Shri Harishankar had executed the same under the influence of the appellant.

(4) The second Will executed by Shri Harishankar on 10.2.1992 was valid and in terms of that Will, the appellant acquired the testator's share in the joint family property.

(5) In the absence of any challenge to the second Will, respondent Nos.1 and 2 were not entitled to anything from the share of Shri Harishankar.

11. The learned Single Judge then considered the rival contentions, scrutinize the record of the trial Court and answered question nos. 1, 2 and 3 in affirmative and, thereby, confirmed the findings recorded 7 by the trial Court that respondent No.2 had separated from the family in 1965 and taken his share in the joint family property; that the second partition took place among Shri Harishankar, respondent No.1 and the appellant 10 years before filing of the suit and each one of them got their respective shares and that Will dated 9.6.1989 was duly executed by Shri Harishankar. The learned Single Judge then proceeded to consider the fourth question and held that even though respondent No.1 had admitted that Will dated 10.2.1992 (Exhibit D-2) bears the signatures of Shri Harishankar, the same cannot be treated to have been validly executed because the mandatory provision contained in Section 63(c) of the Indian Succession Act, 1925 (for short, `the 1925 Act') had not been complied with. The learned Single Judge referred to the statements of the attesting witnesses, viz., Sobhag Chand (DW-3) and Kailash Chand (DW-4) and observed:

12. The learned Single Judge then also referred to some discrepancies in the statements of the appellant and the attesting witnesses and held that the 9 appellant failed to discharge the onus of proving that Will dated 10.2.1992 was duly executed by Shri Harishankar and was attested as per the mandate of Section 63(c) of the 1925 Act.

(10) The appellant had himself taken active part in the execution of the second Will. The tenor of the statement of the appellant is indicative of the extra interest taken by him in the execution of the second Will. (11) Shri Harishankar had executed the second Will at the persuasion of the appellant and thus there was every reason to think that he had influenced the executant.

23. The appellant was subjected to lengthy cross-examination by the counsel for respondent Nos. 1 and 2. In reply to one of the questions put by the counsel for respondent No. 1, the appellant stated that there was a partition in 1985 in which respondent No. 1 was given 10 acres land at Nimacha and house situated at Gandhi Chowk, Timarni. In response to another question, the appellant stated that his father had put signatures on Exhibit D-2 in his presence and that his father and others did not sign on the first page because the writing was not complete. The appellant also stated that Kailash Chand (DW-4) had signed before Sobhag Chand and Sh. S.K. Agarwal had signed after his father and two witnesses had signed the Will. In reply to the question put by the counsel for respondent No. 2, the appellant stated that till 1965 all the brothers and parents lived together and, thereafter, respondent No. 2 separated from the joint family. In reply to another question, the appellant gave out that Sobhag Chand and 25 Kailash Chand are neither related to his father nor are they his friends but knew him and they used to visit his in-laws. The appellant also stated that his father had told the witnesses that he had executed Will because he was happy with the services rendered by the appellant and his wife. The appellant gave out that the two attesting witnesses do not belong to his caste and the houses of the persons belonging to his caste are at a distance from his in-laws house.

31. In view of the above discussion, we hold that the learned Single Judge was clearly in error in reversing the well-reasoned finding recorded by the trial Court on the issues of execution of Will dated 10.2.1992 by Shri Harishankar and its genuineness and validity. Consequently, the appeals are allowed, the impugned judgement is set aside and the one passed by the trial Court is restored. The parties are left to bear their own costs.