Diwana & others vs Mr. Shailender Sharma, Advocate

Smt. Pato plaintiff filed a suit in her life time to challenge the decree on the ground, that it had been obtained by fraud. She claimed, that she was in possession of the property, therefore, prayer for injunction was made restraining the defendant / appellant from interfering in possession of the plaintiff / respondents. In the alternative the plaintiff claimed possession. As already observed above, after the death of Smt. Pato the issues of all the three sisters of Girdhala were impleaded as her legal representatives. The suit was contested by the appellant / defendant on the plea, that Smt. Pato on her free will suffered a decree giving the property to him. The allegations of fraud were denied. It was pleaded, that the factum of decree having been passed in favour of the defendant / appellant was admitted by her in subsequent suit filed by Chandan and others sons of Dhauo to challenge the decree dated

10.2.1977. The suit filed by Chandan and others was R.S.A. No. 1841 of 1984 -3- dismissed. It was also pleaded case, that Smt. Pato had executed a Will whereby she gave the property to Desa- appellant / defendant No.1, to the exclusion of others. In the replication, filed by Smt. Pato, the allegations of the Will were denied and she reiterated the allegations made in the plaint. On the pleadings of the parties, the learned trial Court framed the following issues :- “1. Whether the plaintiff is the owner in possession of the suit land as alleged?OPP

2. Whether the judgment and decree dated 10.2.1977 in suit No. 46 of 3.2.1977 in respect of the suit land are liable to be set aside on the grounds of fraud mis-representation etc. alleged in the plaint ?OPP

3. Whether the suit is barred by principle of res judicata?OPD

4. Whether the suit is not maintainable in the present form?OPD

5. Whether the plaintiff is estopped from filing this suit?OPD R.S.A. No. 1841 of 1984 -4-

6. Whether the suit is time barred?OPD 6-A. Whether the plaintiffs are entitled to decree for possession as prayed?OPD 6-B. Whether the plaintiff has no cause of action to proceed with the present suit?OPD

7. Relief.” The learned trial Court on appreciation of evidence, recorded a finding, that Smt. Pato was the owner of the land in dispute, and vide decree dated 10.2.1977, the above property was transferred to defendant / appellant. The learned trial Court also held, that allegations of fraud were not proved, therefore, the defendant / appellant was held to be owner of the property. The suit filed by the plaintiff / respondents was held to be barred by the principle of res judicata, whereas under Issue No.4, it was held, that plaintiffs failed to prove their ownership or possession, therefore, they had no right to maintain the present suit. The plea of estoppel was also decided against the plaintiff / respondent. As the consent decree dated 10.2.1977 was held to operate as estoppel against the plaintiff, issue No.6 was decided in favour of the R.S.A. No. 1841 of 1984 -5- appellant, and it was held, that suit was time barred, whereas on issue No. 6-B it was held, that Smt. Pato executed a valid Will Ex. D-4 in favour of Desa defendant on 24.11.1976. Consequently the suit was dismissed. In appeal, the learned lower appellate Court agreed with the contention of the plaintiff / respondents, that the Will could be revoked by a testator, at any time, during her /his life time, as no special deed for revocation of the Will is prescribed. The learned lower appellate Court held, that Smt. Pato, in the replication as well as in the written statement, had denied the execution of the Will, which itself was sufficient to hold, that the Will stood revoked. The learned lower appellate Court, therefore, held that the finding of the learned trial Court, that the legal representatives of Smt. Pato had no right to proceed with the suit could not be sustained. The finding of the learned trial Court on issues No. 1 & 6-B was set aside, and it was held, that the plaintiffs were owners in possession of the suit land. The learned lower appellate Court did not agree with the plaintiff / respondents, that the decree was outcome of fraud and misrepresentation. The contention of the learned counsel for the plaintiff / respondents, that in view of the fact, that Smt. Pato was an illiterate woman of 80 years of age, and there was no motive or reason to transfer the property to defendants, itself amounted to fraud, was not accepted by the R.S.A. No. 1841 of 1984 -6- learned lower appellate Court by placing reliance on the judgment of the Hon'ble Supreme Court in the case of Union of India Vs. M/s Chaturbhai M. Patel, A.I.R. 1976 Supreme Court 712, the learned lower appellate Court affirmed the finding of the learned trial Court, that fraud was not proved. The learned lower appellate Court, however, accepted the contention, that even though the fraud was not proved, still under the decree no title passed on to the defendant / appellant, as it was required to be registered, as by the decree the rights in favour of the defendant / appellant were created for the first time. The learned lower appellate Court took note of the fact that the defendant / appellant had claimed his right in the property in suit filed against Smt. Pato, on the basis of oral Will, said to have been made by Girdhala husband of Smt. Pato. The learned lower appellate Court held, that oral Will is not recognized in law, therefore, the defendant could not become owner of the property on the basis of said oral Will. The finding on issue No. 4 was held in favour of the plaintiff / respondents, and it was held, that the plaintiff had a right to file the suit. The learned lower appellate Court also held, that the plaintiff had a right to file the suit. The learned lower appellate Court did not agree with the finding of the learned trial Court, that the suit was barred by res judicata, for the reason, that the declaratory suit R.S.A. No. 1841 of 1984 -7- filed by some heir to challenge the alienation could not debar the alienator to get back the property, on the basis of her title, the Court, therefore, held that the suit was not barred by the principle of res judicata. The appeal was accordingly accepted, and the suit filed by the plaintiff / appellant was decreed. Mr. Sanjay Majithia, learned senior counsel appearing on behalf of the appellant contended, that this appeal raises the following substantial questions of law :-

1. Whether a registered Will could be revoked by way of registered deed or by way of a written document?

2. Whether the revocation of a Will can be presumed on the basis of presumption?

3. Whether the judgment and decree passed by the learned lower appellate Court holding that the Will is presumed to have been revoked in view of the denial of its execution is on the face of it perverse? The learned senior counsel appearing on behalf of the appellant referred to the judgment of the learned trial Court, wherein the learned trial Court was pleased to hold, that the Will dated 24.1.1976, executed by Smt. Pato in favour R.S.A. No. 1841 of 1984 -8- of the defendant / appellant was fully proved from the statement of Sh. Parshotam Dass, Deed Writer DW-4, who had categorically stated, that he scribed the Will Ex. D4 at the instance of Smt. Pato, in her sound disposing mind. He also proved the attestation of Will in his presence by the attesting witnesses. Karan Singh DW-5 and Molu DW-6, attesting witnesses of the Will also proved the execution of the Will by Smt. Pato in her sound disposing mind. The learned trial Court held, that the execution of the Will was not challenged by the plaintiff / respondents in any manner, nor hand-writing expert or finger Print Expert was examined to prove, that the Will in question did not bear her thumb impression. The Will was also registered before the Sub Registrar. The finding of the learned trial Court was not upset by the learned lower appellate Court, thus, the execution of the Will was duly proved. The contention of the learned senior counsel for the appellant was, that the learned lower appellate Court merely held, that the Will stood revoked as Smt. Pato in the plaint as well as the replication and statement made in the Court had denied the execution of the Will. The contention of the learned counsel for the appellant was, that a registered Will could only be revoked by way of a registered document or at least by written instrument, and no presumption of its R.S.A. No. 1841 of 1984 -9- revocation can be drawn. In support of this contention the learned senior counsel for the appellant placed reliance on the judgment of the Hon'ble Supreme Court in the case of Smt. Jaswant Kaur, Appellant v. Smt. Amrit Kaur and others, Respondents, AIR 1977 Supreme Court 74, wherein the Hon'ble Supreme Court was pleased to lay down as under :- “5. The suit was tried eventually by the learned Senior Sub-Judge, Sangrur, who by his judgment dated June 29, 1964 decreed it. The learned Judge held that the defendant who set up the will had failed to prove that it was the last will and testament of his grand-father Gobinder Singh and alternatively, that even on the assumption that the will was proved, it must be deemed to have been revoked on account of certain dispositions made by the testator after the making of the will. This alternative conclusion that the will stood revoked by implication is clearly unsupportable and the appellant, who disputes the will, did not urge that consideration before us. The revocation of an unprivileged will is an act only a little less solemn than the making of the will itself and has to comply with statutory requirements contained in section 70 of the Succession Act.” The learned counsel for the appellant also placed R.S.A. No. 1841 of 1984 -10- reliance on the judgment of the Division Bench of this Court in the case of Net Ram etc. Vs. Harkesh major etc. 1973 Current Law Journal 373, wherein this Court laid down as under :- “3. It was not disputed on the other side that the revocation deed aforesaid was to be executed in the same manner as a will, namely, the executor has either to sign the revocation deed in the presence of the attesting witnesses or to acknowledge its execution before them, though the two attesting witnesses need not be present at one and the same time.” The learned senior counsel for the appellant also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Anil Behari Ghosh, Appellant v. Smt. Latika Bala Dassi and others, Respondent AIR 1955 Supreme Court 566, wherein the Hon'ble Supreme Court was pleased to lay down as under :- “20. The most serious allegation which could have a determining effect on the grant, if made out, is that the testator had revoked the will. Such an allegation would directly come within the third illustration quoted above. But unfortunately for the appellant he made no attempt to prove his allegation that there was any such revocation. Apart from showing that in or about the year 1917 the testater had R.S.A. No. 1841 of 1984 -11- entertained the intention either of materially altering his will or of altogether revoking it, there is absolutely no evidence in support of the allegation that the testator actually revoked the registered will in question. For proving that the will had been revoked, it had to be shown that the testator had made another will or codicil or by some writing declared his intention to revoke the will. Such a document is required by S. 70 of the Act to be executed in the same manner as a will. Such a revocation could also have been proved, as the section lays down, by burning, tearing or otherwise destroying the will by the testator himself or by some other person in his presence and by his direction, thus clearly indicating his intention of revoking the will. No such proof has been offered in this case. But it was argued that the appellant would have offered such proof after the order of revocation was made by the Court. That, would be to put the cart before the horse. If an applicant for revocation of a grant alleges a ground for such revocation that the testator had revoked the will, he has got to prove that alleged fact at least 'prima facie' before he can be entitled to an order of revocation. There may be cases where such a proof may be offered at a later stage where the revocation is R.S.A. No. 1841 of 1984 -12- founded upon other grounds, for example, where the Court is satisfied that there was substantial defect in the previous proceedings resulting in the grant, or that the grantee had wilfully and without reasonable cause omitted to exhibit an inventory or account; or some such other ground recognised by S. 263 as just cause for annulling the grant has been established. It was also argued on behalf of the appellant that even though he may not have proved that the testator had as a matter of fact revoked the will he is still entitled to an order of revocation on the ground that he had entertained the intention of revoking the will. No authority had been cited before us in support of this contention. It is open to a person who has made a will at any time to alter or to revoke it; but if he had died leaving a registered will and has not taken any tangible steps to revoke such a will,it is not enough to allege that the testator had it one time entertained the intention of doing so, because such an intention without being translated into action has no effect on the will actually left by him which must be treated as the last will and testament.” The learned senior counsel, therefore, contended that the substantial questions of law, be answered in favour of the appellant. Mr. Alok Jain, learned counsel appearing on behalf R.S.A. No. 1841 of 1984 -13- of the plaintiff / respondents supported the judgment and decree on the plea that it is not in dispute that Smt. Pato was owner in possession of the property, therefore, no fault can be found with the judgment of the learned lower appellate Court, for the reason that Smt. Pato in the plaint as well as in the replication had categorically stated that she had not executed any Will. Thus by denying the execution of the Will, she denied due execution of the Will, therefore, the learned lower appellate Court rightly came to the conclusion that the Will stood revoked. It was also the contention of the learned counsel for the plaintiff / respondents, that the learned lower appellate Court was right in holding that no form is prescribed for revocation of the Will, therefore, the presumption drawn by the learned lower appellate Court on appreciation of evidence cannot be said to be perverse or arbitrary. It was also the contention of the learned counsel for the respondents that the finding of fact recorded by the learned lower appellate Court that the Will stood revoked cannot be challenged in the regular second appeal. On consideration, I find force in the contention raised by the learned Senior counsel for the appellant. Once the factum of execution of the registered Will by Smt. Pato was proved merely her denial that she did not execute the Will, could not amount to its revocation. Smt. Pato could R.S.A. No. 1841 of 1984 -14- revoke the Will, but she chose not to do so by way of written document, but merely denied having executed any Will. This fact was found to be wrong on appreciation of evidence. The defendant / appellant had proved the due execution of the Will in accordance with the provisions of law, as already noticed above. The learned lower appellate Court also did not find that the Will was not validly executed or was surrounded by suspicious circumstances. The presumption drawn by the learned lower appellate Court is contrary to the law laid down by the Hon'ble Supreme Court in the case of Smt. Jaswant Kaur, Appellant v. Smt. Amrit Kaur and others, Respondents (supra), and the judgment of this Court in the case of Net Ram etc. Vs. Harkesh major etc. (supra). The Hon'ble Supreme court in the case of Anil Behari Ghosh, Appellant v. Smt. Latika Bala Dassi and others, Respondent (supra), was pleased to lay down, that the revocation cannot be presumed on the plea, that the testator intended to revoke the Will. Once as per law, the registered Will could be revoked only by the registered document or a document in writing showing its clear intention, and by executing the instrument in the manner in which the Will is executed, the substantial questions of law deserve to be answered in favour R.S.A. No. 1841 of 1984 -15- of the appellant. Once it is proved, that there is Will, in favour of the defendant / appellant, he was to inherit the property under the said Will on the death of Smt. Pato. The suit by the plaintiff / respondents was not competent, as the legal representatives, had no right left in the property which stood bequeathed to appellant / defendant. This appeal is accordingly allowed, the judgment and decree passed by the learned lower appellate Court is set aside, and that of the learned trial Court is restored but with no order as to costs. March 16,2010 'sp' (VINOD K. SHARMA) JUDGE