Case BriefsSupreme Court

Supreme Court: Holding that a testamentary court is not a court of suspicion but that of conscience, the bench of Sanjay Kishan Kaul and MM Sundresh*, JJ has set aside the High Court’s order in a suit for execution of Will wherein the Court had “unnecessarily created a suspicion when there is none”, merely because it thought that was no logic in the exclusion of the sister of the beneficiary of the Will. Neither the beneficiary nor his siblings had raised any issues regarding the validity of the Will.

Asking the appellate Courts to consider the relevant materials instead of adopting an ethical reasoning, the Court explained,

“A mere exclusion of either brother or sister per se would not create a suspicion unless it is surrounded by other circumstances creating an inference. In a case where a testatrix is accompanied by the sister of the beneficiary of the Will and the said document is attested by the brother, there is no room for any suspicion when both of them have not raised any issue.”

Brief Background

  • The Suit Property originally belonged to one Jessie Jayalakshmi, the maternal aunt of the Appellant/Plaintiff, who, being a spinster, adopted the appellant as her son and the appellant took care of her when she suffered an attack of paralysis.
  • The appellant had two siblings, a brother and a sister.
  • A registered Will under Exhibit P4 was executed by Jessie Jayalakshmi on 04.09.1985 in favour of the Appellant. The said Will was attested by the brother of the Appellant.
  • Jessie Jayalakshmi was also brought to the office of the Sub-Registrar by none other than Kantha Lakshmi, the sister of the appellant.
  • The relationship between Kantha Lakshmi and her husband, Respondent No. 1 got strained and they obtained a divorce decree on 26.03.1988.
  • Respondent No. 1, while acknowledging the factum of execution of Exhibit P4, introduced Exhibit D1, an unregistered Will, allegedly executed by Jessie Jayalakshmi in favour of the Respondent No.2 (minor son of Respondent No.1) and claimed that Exhibit P4 has been replaced by Exhibit D1.
  • Trial Court found Exhibit D1 to be forged.
  • The High Court reaffirmed the findings of the Trial Court with respect to the genuineness of Exhibit D1. However, in the absence of any specific pleading coupled with an admission of the execution of Exhibit P4, the High Court suspected that there was no logic in the exclusion of the sister of the Appellant and concluded that there was no basis to leave her out of the Will.

Analysis

The Supreme Court noticed that,

  • The High Court did not give any reasoning whatsoever for differing with the views expressed by the Trial Court.
  • The High Court has also committed an error in misconstruing the presence of the sister of the Appellant, Kantha Lakshmi. Her presence in fact adds strength to Exhibit P4 having been executed properly. It is the specific case of the Appellant and his siblings that the deceased, Ms. Jessie Jayalakshmi wanted the property to be given in his favor.

“Their participation coupled with the subsequent conduct would be sufficient enough to uphold Exhibit P4. When there are no suspicious circumstances surrounding the execution of Exhibit P4, there is no need to remove.”

  • The High Court after giving adequate reasoning for disbelieving Exhibit D1 that it is forged and fabricated should have kept in mind the conduct and attitude of the Respondent No.1.

“The factors such as the fabrication and severance of relationship between himself and his wife in pursuance of the decree for divorce, coupled with the status while squatting over the Suit Property being the relevant materials, ought to have weighed in its mind instead of questioning Exhibit P4. Had that been done, perhaps it would have come to conclusion that such an exercise is not warranted at the hands of the. Respondents, who not only accepted Exhibit P4 but it did not even question it; except by contending that it is replaced by Exhibit D1.”

Conclusion

Noticing that both the Courts have given adequate reasoning for not believing Exhibit D1, the Court concluded that

“In the absence of pleadings to the contrary, followed by issues framed, it is not open to the Appellate Court to embark upon an exercise which is not required and also not permitted under the law.”

[V. Prabhakara v. Basavaraj K., 2021 SCC OnLine SC 896, decided on 07.10.2021]


*Judgment by: Justice MM Sundresh

Counsel:

For appellant: Advocate Kiran Suri

Case BriefsSupreme Court

Supreme Court of India: Observing the well-settled position of law that, Mutation Entry does not confer any right, title or interest in favour of the person and it is only recorded for the fiscal purpose, Division Bench of M.R. Shah and Aniruddha Bose, JJ., upheld the decision of the Madhya Pradesh High Court.

Aggrieved and dissatisfied with the impugned decision passed by the Madhya Pradesh High Court by which the High Court allowed the petition and quashed the decision by Additional Commissioner, Rewa Division directing to mutate the name of the petitioner in the revenue records, which was sought to be mutated on the basis of the will, the original respondent 6 preferred the present special leave petition.

Analysis, Law and Decision

Supreme Court stated that the dispute was with respect to mutation entry in the revenue records.

It emerged that the application before the Nayab Tehsildar was made on 9-8-2011, i.e., before the death of Ananti Bai, who executed the alleged will.

Bench added that, it cannot be disputed that the right on the basis of the will can be claimed only after the death of the executant of the will. Even the will itself has been disputed.

Settled Position of Law

Mutation entry does not confer any right, title or interest in favour of the person and the mutation entry in the revenue record is only for the fiscal purpose.

If there is any dispute with respect to the title and more particularly when the mutation entry is sought to be made on the basis of the will, the party who is claiming title/right on the basis of will has to approach the appropriate civil court and get his rights crystalized and only thereafter on the basis of the decision before the civil court necessary mutation entry can be made.

Analyzing further, the Court added that right from 1997, the law is very clear. In Supreme Court’s decision of Balwant Singh v. Daulat Singh, (1997) 7 SCC 137, Court had considered the effect of mutation and observed that mutation of property in revenue record neither creates nor extinguishes title to the property nor has any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue.

In the Supreme Court decision of Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186, it was observed that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. Entries in the revenue records or jamabandi have only “fiscal purpose”. So far as the title of the property is concerned, it can only be decided by a competent civil court.

In the following decisions also, the above view was taken:

Suman Verma v. Union of India, (2004) 12 SCC 58; Faqruddin v. Tajuddin (2008) 8 SCC 12; Rajinder Singh v. State of J&K, (2008) 9 SCC 368; Municipal Corporation, Aurangabad v. State of Maharashtra, (2015) 16 SCC 689; T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259; and Ajit Kaur v. Darshan Singh, (2019) 13 SCC 70.

While concluding the matter, Supreme Court held that it cannot be said that High Court committed any error in setting aside the order passed by the revenue authorities to mutate the name of the petitioner in revenue records on the basis of alleged will and relegating the petitioner to approach the appropriate Court.

Therefore, the Special Leave Petition was dismissed. [Jitendra Singh v. State of M.P., 2021 SCC OnLine SC 802, decided on 6-09-2021]


Advocate before the Court:

Nishesh Sharma, Advocate appearing for the petitioner.

Case BriefsSupreme Court

Supreme Court: Bench of Sanjay Kishan Kaul and Hrishikesh Roy, JJ., expressed that,

Key characteristic of thumb impression is that every person has a unique thumb impression. Forgery of thumb impressions is nearly impossible. 

Merely because the testator chose to append his thumb impression, adverse presumption on genuineness of the cancellation deed cannot be drawn.

Instant appeal arose out of the decision of the Patna High Court whereby the appeal filed by the probate applicant was allowed in his favour by concluding that the Will favouring Sarjug Singh was not cancelled. Hence the appellate Court reversed the trial court’s decision which held that the applicant was disentitled to get the Will probated as the same was revoked.

High Court disbelieved the registered deed of cancellation dated 2-2-196 (Exbt C) whereby, the Exbt 2 Will, was revoked by the testator. 

Factual Matrix

Rajendra Singh (since deceased) executed a Will on 14-09-1960 in favour of the applicant Sarjung Singh.

The executant died issueless leaving behind his sister Duler Kuer, wife of Thakur Prasad Singh and nephew Yugal Kishore Singh and also the probate applicant Sarjug Singh.

Applicant’s case was that the testator’s wife died long ago and therefore Rajendra Singh who was issueless bequeathed his property in village Pojhi Bujurg and Pojhi Kapoor, District Saran, Bihar by executing the Will favouring respondent Sarjug Singh (since deceased).

It is relevant to state that the validity of the Will in favour of the applicant Sarjug Singh was never seriously challenged but the objectors pleaded that the concerned Will was cancelled by a registered deed on 02-02-1963 (Exbt. C) by the testator himself. The applicant however claims that the testator was in very poor health, paralytic and was not in a position to attend the Sub­Registrar’s office on 02-02-1963 to execute the registered cancellation deed (Ext. ‘C’). The applicant also challenged the genuineness of the testator’s thumb impression on the cancellation deed of the Will.

High Court addressed the core issue of whether the testator had cancelled the Will. High Court granted the probate and reversed the finding of the Trial Court. Subsequent purchasers of the assets who supported the objector’s case in the probate proceedings, have then filed the present appeal.

Analysis, Law and Discussion

Bench stated that the merit of claim of either party in the present matter will hinge around the core issue as to Whether Rajendra Singh had actually revoked the Will in favour of Sarjung Singh and his physical and mental capacity to execute the Cancellation Deed and also whether thumb impression of Rajendra Singh on the registered document is genuine or not.

 Further, it was noted that in allowing the appeal of the probate applicant, the High Court referred to the health condition of Rajendra Singh who suffered from paralysis before his death and had opined that it would not be possible for the testator to visit the sub-registrar’s office, to cancel the Will.

Bench stated that the High Court failed to give due weightage to the evidence that led to the genuineness of the cancellation deed. Instead, erroneous presumption was drawn on impersonation and incapability of the testator, to visit the office of the sub-registrar to register the cancellation deed.

Testator’s thumb impression on the cancellation deed

On the stated issue, all the four deeds executed by Rajendra Singh in his lifetime, contained his thumb impression and not his signature. Therefore, adverse presumption on genuineness of the cancellation deed cannot be drawn merely because the testator chose to append his thumb impression.

Further, the handwriting report clearly indicated that the thumb impression on all the documents placed before the expert’s opinion were of the same person i.e. of Rajendra Singh. Since the said Ext. B was marked in Court, without objection from the applicant, the genuineness of the same cannot be allowed to be questioned before the appellate Court.

In Court’s opinion, a contrary inference was erroneously drawn by the High Court by referring to the health condition of the testator, when the revocation deed was registered.

Supreme Court held that genuineness of the Cancellation deed cannot be doubted only due to the fact that same was not signed and Rajendra as a literate person, affixed his thumb impression.

Implication of the conduct of the objectors, who did not produce the original deed of cancellation

Bench analysed and stated that objectors failed to take any steps to produce the original deed of cancellation. On the said, probate applicant neither objected to production of certified copy nor insisted on production of the original cancellation deed.

In view of the above scenario, where no protest was registered by the probate applicant against production of certified copy of the Cancellation Deed, he cannot later be allowed to take up the plea of non-production of original cancellation deed in course of the appellate proceeding.

Mode of Proof

Supreme Court made it clear that plea regarding mode of proof cannot be permitted to be taken at the appellate stage for the first time, if not raised before the trial Court at the appropriate stage.

Reasoning for the above was to avoid prejudice to the party who produced the certified copy of an original document without protest by the other side.

Hence, allowing objection as stated above to be raised during the appellate stage would put the party (who placed certified copy on record instead of original copy) in a jeopardy and would seriously prejudice the interests of that party.

Adding to the above, it was emphasized that it would also be inconsistent with the rule of fair play as propounded by Justice Ashok Bhan in the case of R.V.E Venkatachala

While reaching the conclusion, Court opined that the High Court had erred by ignoring the material evidence in disbelieving the cancellation deed and on that score declaring that the applicant was entitled to grant of probate of the Will.

Given the fact that Probate applicant never raised any objection regarding the mode of proof before the trial court, there was no occasion for the High Court to say that it was the duty of defendant to produce original deed of cancellation.

Lastly, the Bench expressed that Trial Court was right in holding that Rajendra was medically fit and had cancelled the Will himself. It was also seen that the evidences of the relevant OWs withstood the scrutiny of the trial court and those remained unshaken and should be trusted.

Considering the omission of the probate applicants to raise objection regarding mode of proof before the trial court, merit was found in the case of the objectors.

In view of the above discussion, present appeal was allowed., while setting aside the impugned order of the Delhi High Court. [Lacchmi Narain Singh (D) v. Sarjug Singh (Dead), 2021 SCC OnLine SC 606, decided on 17-08-2021]

Case BriefsHigh Courts

Delhi High Court: Mukta Gupta, J., decides a matter revolving around the Will of a deceased person.

Factual Background

Instant suit was filed by two brothers’ owners of the suit property. The brothers mentioned were brothers of Late Shanti Swaroop Gupta.

Defendants submitted that the deceased left a Will in the name of his son-in-law who also passed away. In the said Will, properties of Late Shanti Swarup Gupta were bequeathed on his son-in-law who was the brother of defendants 1 to 3. The said defendants claimed ownership in the suit property to defendant 4 and conveyed it to defendant 5 and have further conveyed to the third parties.

Plaintiffs in the matter were 4 brothers of Late Shanti Swarup Gupta and claimed rights in the suit property by virtue of being Class-II legal heirs.

A probate petition was filed by the son-in-law of Late Shanti Swarup Gupta which was granted in his favour.

Present suit aimed to seek a declaration of the impugned registered Will is null and void, void-ab-initio and illegal, the decree of possession of the suit property, decree of permanent injunction against the defendants from creating any third party rights and direction to the office of Sub-Registrar not to register any sale till the disposal of the suit.

Analysis, Law and Decision

Section 263 of the Indian Succession Act reveals that the grant of probate or letter of administration or the revocation or annulment thereof for just cause can be ordered only by the probate Court. 

Court noted that the plaintiffs claimed that Anand Prakash Verma, son-in-law of Late Shanti Swarup Gupta, obtained the probate of the Will by playing fraud by not disclosing about other legal heirs of the deceased and hence the Will be declared null and void ab initio and illegal and of no effect.

Further, the plaintiffs applied for revocation of the probate granted and thus the relief as sought in prayer (a) of the present suit is not maintainable before this Court but before the probate Court under Section 263 of the Indian Successions Act.

In Court’s opinion, no ground was found to grant an interim injunction.

Hence, present suit was not maintainable. [Niranjan Swarup Gupta v. Bimla Devi, 2021 SCC OnLine Del 3690, decided on 14-07-2021]


Advocates before the Court:

For the Plaintiffs:

Mr. Piyush Singhal, Advocate for the plaintiffs with Mr. Ankur Gupta, A.R. of the plaintiffs in person.

For the Defendants:

Mr. Chandan Rai Chawla, Advocate for D1 to D3.

Mr. Kaadambari, Advocate with Ms. Priyanka, Advocate for D4 Mr. Samrat Nigam, Advocate with Mr. Sudarshan Ranjan, Mr. H. Bajaj, Advocates for D5 and D6.


Additional Reading:

Probate

1. Official proof of a will. [Whart.]. 2. Means the copy of a will certified under the seal of a Court of competent jurisdiction with a grant of administration of the estate of the testator, [Section 2(f), Succession Act, 1925 (India)].

[Source: SCC Online Webedition]

Case BriefsHigh Courts

Himachal Pradesh High Court: Tarlok Singh Chauhan, J. dismissed the appeal being devoid of merits.

The facts of the case are such that respondent 1 filed a suit for declaration and permanent prohibitory injunction against the appellants alleging that the Will in question executed by the mother of appellant 1, respondents and grandmother of the appellants 2 to 4 in respect of properties owned and possessed by her in favour of the appellants 2 to 4 is illegal and wrong. The appellants contested the claim of respondent 1 with respect to the genuineness of the Will as it is the last legal and valid Will executed by late Smt. Tulsa in favour of the appellants 2 to 4 which was registered after her death and mutation of inheritance was entered and attested in favour of appellants 2 to 4. The Trial Court decreed the Will to be valid to the extent of 1/3rd share and remaining 2/3rd share was held to have devolved upon the legal heirs of late Smt. Tulsa. Feeling aggrieved two appeals by each party was filed wherein the appeal filed by respondent 1 was allowed and appeal filed by the appellants was dismissed in favour of the appellants to the extent that the Will is held to be legally and validly executed by Smt. Tulsa were set aside in its entirety. Assailing this order, the instant appeal was filed.

Counsel for the appellants Mr Y. P. Sood submitted that the findings recorded by the learned Courts below are totally perverse as there was no requirement of law to examine the scribe of the Will, more especially, when one of the attesting witnesses i.e. Lovender Singh in this case has already been examined.

Counsel for the respondents Mr Bimal Gupta and Ms Poonam Moghta submitted that the parties to the lis are Muslims and governed by Mohammedan Law and the mode of proving the Mohammedan Will is different as a Mohammedan will is required to be proved under Section 67 of the Evidence Act, 1872.

The Court thus observed that the law of Will as prescribed in Chapter-III, Rule 184 of the Mohammedan Law makes it clear that a Will may be executed in writing or oral, showing a clear intention to bequeath the property. However, a limitation is also prescribed that a valid Will by a Mohammedan will not be for more than 1/3rd of the surplus of his/her estate and that to a non-heir.

The Court relied on judgment Miyana Hasan Abdulla v. State of Gujarat, AIR 1962 Gujarat 214 wherein it was observed that on perusal of Section 67 of the Evidence Act, 1872 it is amply clear that where the document is written by one person and signed by another, the handwriting of the former and the signature of the later have both to be proved in view of Section 67 of the Evidence Act. What Section 67 of the Evidence Act refers to, is the signature of a witness who counter signs a document as a person who was present at the time when the document was signed by another person.

The Court observed that no exception can be taken to the findings recorded by the learned first Appellate Court, whereby it drew an adverse inference against the appellants for not examining the scribe of the document Shri Shamshad Ahmed Qureshi, who was very much alive at that time and even, in case, he was suffering from ailment his statement could have conveniently been recorded on commission.

The Court thus held that in the present case “non-examination of the scribe assumes importance because the witness Lovender Singh does not state to have witnessed Smt. Tulsa, the testator, putting her signatures over the Will.”

In view of the above, appeal was dismissed.[Ashiq Ali v. Yasin Mistri, 2021 SCC OnLine HP 735, decided on 20-04-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: Rajiv Sahai EndLaw, J., while addressing a very significant issue revolving around ‘Will’ expressed that:

Litigation in a Court cannot be permitted to be played like a game of one-upmanship or by springing surprises or of ambush.

 Adding to the observations, Court in light of ‘unsoundness of mind’ expressed that:

 “…to prove unsoundness of mind, one would be required to prove consistent conduct to prove unsoundness of mind, even if medical records of unsoundness of mind are not available.”

Vide an order 25-11-2019, issues were framed in the Test. Cas.11/2018, wherein the second issue was :

“Whether the deceased Bhagwanti Devi, on 5th May, 1983, was not of sound disposing state of mind and thus the document even if executed by her, is not her Will? OP (Relatives 10,11&12)”

Further, the Senior Counsel’s contention that the onus for the said issue should be on the petitioner, was rejected with the reason that it is for the person disputing the soundness of mind to establish the same, with the petitioner having a right of rebuttal; else, the presumption is, of soundness of mind of a living person.

Relation No. 10 filed the instant application pleading the following:

(a) he had preferred a SLP(C) No. 5603-04/2020 challenging the order dated 25-11-2019, to the extent placing the onus of issue no.(ii) on him and which SLP was disposed of with liberty to him to make a formal application and request this Court to reformulate the issue no.(ii);

(b) this application is being filed in pursuance thereto;

(c) the onus to, in the first instance show that the testatrix was of a sound disposing mind i.e. had the testamentary capacity to execute the Will, is on the propounder of the document claimed to be the Will;

(d) only if the propounder of the document, claimed to be the Will, establishes the testamentary capacity of the testator/testatrix, does the document stand proved as the Will;

(e) the petitioner also in the issues proposed by him had placed onus of the said issue on himself; and,

(f) one who asserts has to prove and the other cannot be called upon to prove the negative.

Analysis, Law and Decision 

Section 59 of the Indian Succession Act, 1925 provides that every person of sound mind not being a minor may dispose of his property by Will.

 Explanation 1 thereto provides that a married woman may dispose by Will any property which she could alienate by her own act during her life.

Explanation 2 thereto provides that persons who are deaf or dumb or blind are not thereby incapacitated from making a Will if they are able to know what they do by it.

Explanation 3 thereto provides that a person who is ordinarily insane may make a Will during an interval in which he is of sound mind.

Explanation 4 thereto provides that no person can make a Will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.

 Section 12 of the Contract Act defines the ‘Soundness of mind’ with respect to the purpose of contracting and the said provision would have application in the matter of soundness of mind requisite for making of a ‘Will’ as well.

Bench stated that the above two provisions have a common thread.

Further, the Court added that when a document propounded as Will is contested, what would be required to be proved is only that what is in issue and only if the party disputing the document propounded as a Will disputes/controverts that the testator/testatrix, at the time of making the Will was of sound mind, would soundness of mind be in issue and required to be proved.

Bench elaborated in light of the Evidence Act that:

The common course of natural events and human conduct is of soundness of mind and unsoundness of mind an aberration. If a testator/testatrix has led a normal life, performed day to day functions in the normal course of human conduct, the presumption under Section 114 of the Evidence Act would be of soundness rather than unsoundness of mind.

In the present case, applicant/relation 10 is the son of the daughter of the deceased and with regard to his contention with regard to the denial of the soundness of mind of the deceased seems contradictory. Bench noted that, if the deceased was throughout her lifetime appending signatures and not putting her thumb impression as pleaded by Relation No. 10, the presumption is of her being of sound mind.

Another significant point noted was that the question of her being under influence of the petitioner would arise only if the deceased was in a position to be influenced i.e. of sound mind; if she was of unsound mind, the question of her being influenced would not arise.

Bench referred to its decision in Budh Singh v. Raghubir Singh, 2015 SCC OnLine Del 14528, wherein it was held that:

though the onus to prove the ‘Will’ may be on the propounder thereof but a challenger to the Will is required to, in the pleadings specifically plead the grounds on which a challenge is sought to be made to the Will so as to let the propounder of the Will know the grounds on which the Will is contested and that a challenger to the Will cannot be allowed to, without taking any pleading or any specific grounds of challenge spring surprises and at the stage of arguments contend that this has not been proved or that has not been proved.

With regard to the present matter, Court stated that Relation No. 10 cannot be permitted to taking advantage of having the onus of the issue as to the soundness of mind placed on the petitioner, steal a walkover by ultimately arguing that the petitioner has failed to prove soundness of mind.

The question of onus of proof as to facts in issue depends upon the facts, pleadings and documents in each case.

Before parting with the present order, Bench added a caveat: The Order/Judgment of a Court exercising testamentary jurisdiction, as this Court is exercising in the subject case, is a Judgment/Order in rem, which establishes a document propounded as a Will as the Will from the death of the testator and renders valid all intermediate acts of the executor as such.

A Testamentary Court is a Court of Conscience.

 Since the said judgment/order binds not only the parties to the proceeding but also others, the Court, in exercise of such jurisdiction, requires proof in accordance with the law of the document propounded as a Will, even if not opposed by the near relatives of the deceased.

However, when the near relatives have contested the document propounded as a Will and which contest is not a sham or make-belief, the Court can mould the trial by placing the onus appropriately in terms of the pleadings and the documents in a case.

Further, the High Court added that it is not the case of the applicant/Relation No.10 Arun Sood that he was not in a position to know about the soundness of mind of the testatrix or was far removed from the testatrix; on such pleading, it can perhaps be said that the petitioner should discharge the onus.

Bench also referred to the decision of Supreme Court in Surendra Pal v. Saraswati Arora (1974) 2 SCC 600.

Hence, in light of the above discussion, High Court held that in the absence of a suggestion that the testator was feeble-minded or so completely deprived of his power of independent thought and judgment, the presumption was drawn and the Will held to be genuine.

In Prem Singh v. Birbal, (2006) 5 SCC 353 presumption that a registered document is validly executed was drawn and it was held that the onus to prove would be on the person who rebuts the presumption.

In view of the above discussion, High Court found no ground for review of the order dated 25-11-2019 and hence dismissed the application. [Ashok Baury v. State, Test. Cas. 11 of 2018, decided on 15-01-2021]


Advocate who appeared before this Court:

For the Petitioner: Mr Prosenjeet Banerjee and Ms Shreya Singhal, Advs.

For the Respondent: Mr Atul Gupta and Mr Jayant Mehta, Advs.

Case BriefsHigh Courts

Madhya Pradesh High Court: G.S. Ahluwalia, J., disposed of a writ petition setting aside the orders passed by the Board of Revenue and Additional Commissioner in relation to a matter of Will.

The petition contained that the husband of the petitioner had one-half share in the agricultural land bearing survey nos.1031 area 0.81 hectare, 1033 area 0.15 hectare, 1040 area 0.72 hectare, 1084 area 0.76 hectare total area 2.44 hectare situated in a village. The husband of the petitioner had died issue-less on 17-5-2006 due to illness. The respondents had then filed an application for mutation of their names on the basis of a “Will” purportedly executed by the deceased. The petitioner submitted her objection and claimed that she is the sole legal heir of deceased, being his legally wedded wife. After which the Tehsildar had rejected the application filed by the respondents, being aggrieved an appeal was filed before the Court of SDO which was again rejected. Finally respondent made n appeal before the Additional Commissioner which was allowed after relying upon the so called “Will” executed by deceased and the names of the respondents were directed to be mutated in the revenue records, aggrieved by which the petitioners had preferred an appeal before the Additional Commissioner which was dismissed. Thus, the instant appeal was filed.

The Court relied on the decision given in Ranjit v. Nandita Singh, MP No.2692 of 2020 which talked about the Conferral of Status of Courts on Board and Revenue Officers where it was clearly held that the revenue authorities have no jurisdiction to decide the correctness and genuineness of a “Will” and if the propounder of the “Will” wants to take advantage of the “Will”, then he had to get his title declared from the Civil Court of competent jurisdiction.

The Court while setting aside the orders passed by the Board of Revenue and Additional Commissioner directed that the revenue authorities restore the names of the petitioner in the revenue records.[Ramkali v. Banmali, 2021 SCC OnLine MP 359, decided on 17-02-2021]


Suchita Shukla, Editorial Assistant has put this story together.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Sanjay Kishan Kaul, Dinesh Maheshwari and Hrishikesh Roy, JJ., has set aside the order of High Court of Judicature for Andhra Pradesh at Hyderabad and, thereby restored the findings of Trial Court.

Background

 In the instant case, a claim for partition and division was made by the appellant in four equal shares amongst herself and her three siblings, who were arrayed as defendants 1, 2 and 3. The property was left by deceased step-mother of the appellant. Defendant 4, brother of step-mother of the appellant, alleged that his sister had sold Item 1 of Schedule A of the plaint to Defendant 15 under an agreement for sale dated 05-11-1976; and that she had also executed a Will dated 15-06-1978 in favour of her mother and an attendant, defendants 14 and 13 respectively. The appellant denied and disputed the alleged agreement for sale as also the alleged Will.

Findings of the Courts below

 The Trial Court held that both the documents, of the alleged agreement for sale and of the alleged Will, were false and fabricated. The Court observed that the deceased, who was only 45 years of age at the time of her death, would never choose to bequeath the major part of property to her mother, who was about 80 years of age. It was observed that suggestions about the deceased being in her high level of indebtedness were not correct as the defendant could not point out the names of creditors and could not say as to how much was discharged. On contrary, the High Court had affirmed the findings of the Trial Court in relation to Will in question and has held that the Will was not valid. However, it had reversed the findings of the Trial Court in relation to alleged agreement for sale and held that the same was binding on the appellant. It was also ordered that the property forming the subject matter of the said agreement would not be available for partition.

 Observations and Considerations

 In the backdrop of the aforementioned facts, the Court formed three points for determination in the instant appeal:

Whether suit for partition filed was not maintainable for want of relief of declaration against the agreement for sale deed?

The Court clarified that the expression “declaration”, for the purpose of a suit for partition, refers to the declaration of the plaintiff’s share in the suit properties. It was observed that the appellant had not shown awareness about any agreement for sale initially, and later on, the appellant did raise a claim for sale deed being frivolous.

It was also observed that, as per Section 54 of the Transfer of Property Act, 1882, an agreement for sale of immoveable property does not, of itself, create any interest in or charge on such property. A person having an agreement for sale in his favour did not get any right in the property, except the right of obtaining sale deed on that basis and the alleged agreement for sale did not invest the vendee with any such right that the appellant could not have maintained her claim for partition in respect of the properties left by her deceased mother without seeking declaration against the agreement.

What is the effect and consequence of not bringing the legal representatives of defendant who expired during the pendency of appeal in the High Court on record?

Order XXII, Rule 1 of CPC lays down that the death of an appellant or respondent shall not cause the appeal to abate if the right to sue survives. The Court clarified that the same procedure would apply in appeal where one of the several appellants or respondents dies and right to sue survives to the surviving parties alone. Reliance was placed on State of Punjab v. Nathu Ram,(1962) 2 SCR 636, wherein it was held that,  “if the court can deal with the matter in controversy so far as regards the rights and interests of the appellant and the respondents other than the deceased respondent, it has to proceed with the appeal and decide it. It is only when it is not possible for the court to deal with such matters, that it will have to refuse to proceed further with the appeal and therefore dismiss it.” The Court held that, the instant case could definitely proceed even in the absence of the legal representatives of defendant 2 because in case of success of this appeal, there would be no likelihood of any inconsistent decree vis-à-vis defendant 2 coming into existence. The decree of the Trial Court had been in favour of the plaintiff and defendants 1 to 3 and the result of success of this appeal would only be of restoration of the decree of the Trial Court, which would be of no adverse effect on the estate of the deceased defendant 2.

Whether the High Court was justified in reversing the findings of the Trial Court in relation to the said agreement for sale?

The Court noticed that the two documents were intrinsically intertwined, particularly

because it was suggested by the contesting defendants that in the Will, apart from making bequest, the deceased also directed her mother (legatee) to execute a registered sale deed in favour of defendant 15 after receiving the balance sale consideration from him as per the agreement executed in his favour; and that the deceased also directed her mother to discharge the debts. This unmistakable inter-mixing of the two documents had been the primary reason that the Trial Court examined the matters related with them together, while indicating that to give a colour of reality to the Will and to show that the deceased was highly indebted to others which compelled her to sell the property, the suggestions were made about sale to the husband of the deceased’s sister. The High Court had missed out this fundamental feature of the case that two documents, Will and agreement for sale, as put forward by the contesting defendants could not be analysed independent of each other.

When the Will was found surrounded by suspicious circumstances, the agreement must also be rejected as a necessary corollary.

While examining preponderance of probabilities about the existence of such an agreement for sale, the overall relationship of the parties, the beneficiaries of the alleged agreement and their conduct could not be kept at bay. The Court stated, “If the story of indebtedness of the deceased goes in doubt, the suspicions surround not only the Will but agreement too.” Trial Court was right in questioning that if at all any such agreement was executed on 05-11-1976, there was no reason that the vendee did not get the sale document registered for a long length of time because the deceased expired 1½ years later.

Decision

It was held that the Trial Court had examined the matter in its correct perspective and had rightly come to the conclusion that the agreement for sale was as invalid and untrustworthy as was the Will. The findings of Trial Court, based on proper analysis and sound reasoning, called for no interference. On the other hand, the High Court had been clearly in error in interfering with the findings of the Trial Court in relation to the agreement in. Therefore, the Court restored the decree of the Trial Court with further directions that the appellant should be entitled to the costs of the litigation in the High Court and in this Court from the contesting respondents. [Venigalla Koteswaramma v. Malampati Suryamba, 2021 SCC OnLine SC 26, decided on 19-01-2021]

Case BriefsHigh Courts

Himachal Pradesh High Court: Sandeep Sharma J., upheld the impugned judgment on merits.

The facts of the case are such that the suit land is an ancestral property of late Prema who inherited the property from his late father, and after his (Prema’s) death transferred the property through a will to his wife Lajwanti, i.e respondent 1 in the present case and not to his sons i.e. the petitioners in the instant case as they were not taking care of them. After his death, respondent 1 sold the property to other respondents by a sale deed. Aggrieved by the same, an application under Order XXXIX, Rules 1 and 2 Code of Civil Procedure was filed before Senior Civil Judge, Nadaun, District Hamirpur, H.P, praying therein for restraining the Respondent 1 from raising any construction or changing the nature of suit land who rejected the said prayer and the judgment was later affirmed by Additional District Judge, Hamirpur (HP) which stands challenged under the present petition under Article 227 Constitution of India before this court.

Counsel for the petitioners Naresh K Sharma submitted that the suit land is an ancestral property and hence the respondent 1 has no right to transfer the same and hence the sale deed must be declared null and void. It was also submitted that the ‘will’ by which the property was transferred to the wife of the deceased mentions that if the children take care of their mother, they will have a right over the property and because they are taking care of their mother, they have a right over the property and hence the sale deed shall be cancelled.

Counsel for the respondents submitted that the Respondent 1 has inherited the said property by will from her husband who inherited the same from his father and hence the suit land has lost its nature of being an ancestral joint Hindu coparcener property and entirely belongs to Respondent 1 and hence the sale effected by her stand valid.

The court observed that documentary evidence on record, clearly reveals that the suit land was inherited by Respondent 1 i.e Lajwanti through Will and as such, suit land lost its character of joint Hindu coparcener property, rather, it became the absolute property of defendant 1 by virtue of provisions underlying Section 14 of Hindu Succession Act, 1956 and hence there is no merit in the claim of the petitioners that the suit land is a joint Hindu coparcener property and Respondent 1 has no right to sell out the same without legal necessity.

 In view of the above, impugned judgment upheld and petition dismissed.[Kishori Lal v. Lajwanti, 2020 SCC OnLine HP 2073, decided on 28-09-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: Explaining the requirement under Section 69 of the Evidence Act pertinent to Section 68 of the Evidence Act that the attestation by both the witnesses is to be proved by examining at least one attesting witness, the bench of SK Kaul and KM Joseph, JJ has held if the signature of the person executing the document is proved to be in his handwriting, then attestation of one attesting witness is to be proved to be in his handwriting.

The Court was deciding the following questions:

  • Is it still the requirement of law when both the attesting witnesses are dead that: under Section 69 of the Evidence Act, the attestation as required under Section 63 of the Indian Succession Act, viz., attestation by the two witnesses has to be proved?
  • Or Is it sufficient to prove that the attestation of at least one attesting witness is in his handwriting, which is the literal command of Section 69 of the Evidence Act apart from proving the latter limb?

Writing a detailed judgment running into over 270 pages, the Court said that in a case covered under Section 69 of the Evidence Act, the requirement pertinent to Section 68 of the Evidence Act that the attestation by both the witnesses is to be proved by examining at least one attesting witness, is dispensed with. It explained

“It may be that the proof given by the attesting witness, within the meaning of Section 69 of the Evidence Act, may contain evidence relating to the attestation by the other attesting witness but that is not the same thing as stating it to be the legal requirement under the Section to be that attestation by both the witnesses is to be proved in a case covered by Section 69 of the Evidence Act.”

In short, the Court held that, in a case covered under Section 69 of the Evidence Act, what is to be proved as far as the attesting witness is concerned, is, that the attestation of one of the attesting witness is in his handwriting. The language of the Section is clear and unambiguous. Section 68 of the Evidence Act, as interpreted by this Court, contemplates attestation of both attesting witnesses to be proved. But that is not the requirement in Section 69 of the Evidence Act.

The Court further said that Section 69 of the Evidence Act manifests a departure from the requirement embodied in Section 68 of the Evidence Act. In the case of a Will, which is required to be executed in the mode provided in Section 63 of the Indian Succession Act, when there is an attesting witness available, the Will is to be proved by examining him. He must not only prove that the attestation was done by him but he must also prove the attestation by the other attesting witness.

“This is, no doubt, subject to the situation which is contemplated in Section 71 of the Evidence Act which allows other evidence to be adduced in proof of the Will among other documents where the attesting witness denies or does not recollect the execution of the Will or the other document. In other words, the fate of the transferee or a legatee under a document, which is required by law to be attested, is not placed at the mercy of the attesting witness and the law enables proof to be effected of the document despite denial of the execution of the document by the attesting witness.”

It was further added:

  • in a case, where there is evidence which appears to conform to the requirement under Section 69, the Court is not relieved of its burden to apply its mind to the evidence and find whether the requirements of Section 69 are proved. The reliability of the evidence or the credibility of the witnesses is a matter for the Court to still ponder over.
  • making a totally incorrect statement in a will arouses suspicion. This is on the principle that the testator would not make an incorrect statement when he makes a will. If he makes a rank incorrect statement the inference is that he would not have made that will.
  • the requirements under Section 33 of the Evidence Act are not to be confused with the ingredients to be fulfilled even in a case under Section 11 of the CPC. The applicability of Section 33 of the Evidence Act also does not depend upon the nature of the decision which is rendered in the earlier proceeding.
  • while the burden to prove the will and to satisfy the conscience of the court that there are no suspicious circumstances or if there are any to explain them is on the propounder of the will, the burden to prove that the will is procured by coercion, undue influence or fraud is on the respondents who have alleged the same.

On the limits on power of a Hindu to execute a will and effect of Section 30 of the Hindu Succession Act, 1956 thereon

The Court explained that under Mitkashara Law, a Hindu could bequeath his separate and self-acquired properties even prior to the Hindu Succession Act being enacted. A Hindu being a member of the joint family could also possess his separate property which are of various kinds. They include obstructed heritage which is property inherited by a Hindu from another who is a person other than his father, father’s father or great grandfather, Government grant, income of separate property, all acquisitions by means of learning. A Hindu could execute a will bequeathing his separate and selfacquired property. As regards his authority to execute a will concerning his interest in the property of the joint family of which he is a coparcener, the law did not permit such an exercise.

The Court further stated n the case of property of the joint family as long as the property is joint, the right of the coparcener can be described as an interest.

“as long as the family remains joint, a coparcener or even a person who is entitled to share when there is a partition cannot predicate or describe his right in terms of his share. The share remains shrouded and emerges only with division in title or status in the joint family. Once there is a division the share of a coparcener is laid bare.”

Further, after the passage of the Hindu Succession Act even without there being a partition in the sense of a declaration communicated by one coparcener to another to bring about the division it is open to a Hindu to bequeath his interest in the joint family.

“In other words, the words “interest in coparcenary property” can be predicated only when there is a joint family which is in tact in status and not when there is a partition in the sense of there being a disruption in status in the family. Thus, the right of a Hindu in the coparcenary joint family is an interest. Upon disruption or division, it assumes the form of a definite share. When there is a metes and bounds partition then the share translates into absolute rights qua specific properties.”

On the impact of the Hindu Women’s Right to Property Act, 1937

The Court explained that Section 3(2) of the 1937 Act contemplates the situation, where, at the time when the Hindu dies after the enactment of the Act in 1937 (it came into force on 14th April, 1937 and it was repealed by Section 31 of the Hindu Succession Act 1956), in order that the widow acquires the same interest as her husband had under Section 3(2), the Hindu must die when he is not separated from the joint property. If a Hindu, when he dies, is separated and, at least, qua him, there is no Hindu Joint Family, it would not be a case where Section 3(2) would apply.

“… a Hindu when he dies intestate he may have an interest in a Hindu joint family and at the same time also have separate properties. Then qua his separate properties, Section 3(1) would apply whereas in regard to his interest in the joint family, Section 3(2) would govern. Section 3(1) cannot apply as the properties in dispute were not his separate properties.”

[V. Kalyanaswamy (D) v. L. Bakthavatsalam (D), 2020 SCC OnLine SC 584 , decided on 17.07.2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of UU Lalit, Indu Malhotra and AS Bopanna, JJ has held that an agriculturist cannot part with his agricultural land to a non-agriculturist though a ‘Will’ as per Sections 43 and 63 of the Bombay Tenancy and Agricultural Lands, Act, 1948 (the Tenancy Act).

Section 43 lays down the restrictions on transfer of land sold or purchased under the Tenancy Act and Section 63 bars the transfer of agricultural lands to non-agriculturists.

The Court said,

“if it is held that the testamentary disposition would not get covered by the provisions of Section 43, a gullible person can be made to execute a testament in favour of a person who may not fulfil the requirements and be eligible to be a transferee in accordance with law. This may not only render the natural heirs of the tenant without any support or sustenance but may also have serious impact on agricultural operations.”

Explaining the scheme of the Act and the provisions in question, the Court said that the primary concern of provisions referred to in Section 43 of the Tenancy Act is to see that the legislative scheme of granting protection to persons from disadvantaged categories and conferring the right of purchase upon them, and thereby ensure direct relationship of a tiller with the land.

If a tenant or any other person from the priority list is conferred ownership in respect of the agricultural land or when a landlord is allowed to retain the land which was surrendered by his tenant, each one of them is obliged to cultivate the land personally. In case any of them is unwilling, the land must be given to those who principally depend upon agricultural operations for their sustenance. If a person is a beneficiary of such statutory purchase and wishes to transfer his holding the law obliges that he must take prior sanction from the Collector.

The Court, further,explained that a transfer inter vivos would normally be for consideration where the transferor may get value for the land but the legislation requires previous sanction of the concerned authority so that the transferee can step into the shoes of the transferor, and carry out all the obligations as a part of legislative scheme must be discharged. Thus, the screening whether a transferee is eligible or not, can be undertaken even before the actual transfer is effected. Hence,

“if a testamentary disposition which does not have the element of consideration is to be permitted, and if it is assumed that Sections 43 and 63 of the Act do not get attracted, the land can be bequeathed to a total stranger and a non-agriculturist who may not cultivate the land himself; which in turn may then lead to engagement of somebody as a tenant on the land. The legislative intent to do away with absentee landlordism and to protect the cultivating tenants, and to establish direct relationship between the cultivator and the land would then be rendered otiose.”

The Court concluded by saying that the provisions, though lay down a norm which may not be fully consistent with the principles of Indian Succession Act, are principally designed to attain and sub-serve the purpose of protecting the holdings in the hands of disadvantaged categories. The prohibition against transfers of holding without the previous sanction of the concerned authorities, is to be seen in that light as furthering the cause of legislation.

[Vinodchandra Sakarlal Kapadia v. State of Gujarat, 2020 SCC OnLine SC 545 , decided on 15.06.2020]

Cabinet DecisionsLegislation Updates

The Union Cabinet approved the proposal to introduce the National Capital Territory of Delhi (Recognition of Property Rights of Residents in Unauthorised Colonies) Bill, 2019 during the ongoing Winter Session of Parliament. This Bill will help in allowing the registration of properties and provide certain relief to the residents in Unauthorised Colonies (DCs) of Delhi from Registration Charges and Stamp Duty.

Nearly 40 lakh people reside in Unauthorised Colonies located on private or public land in Delhi. Properties, whether in the form of a plot of land or built-up space are generally held through General Power of Attorney (GPA), Will, Agreement to Sale, Payment and Possession documents. The properties in these colonies are not being registered by registration Authorities and thereby the residents do not have any title documents in respect of such properties and the Banks and financial institutions do not extend any credit facilities in respect of said properties.

The Supreme Court in the SLP (C) 13917 of 2009 Suraj Lamp & Industries (P) Ltd. v. State of Haryana & others vide its judgment dated 11 October 2011 had held that Sale Agreement/General Power of Attorney or Will transactions are not ‘transfers’ or ‘sales’ and that such transactions cannot be treated as completed transfers or conveyances and they can continue to be treated as the existing agreement of sale.

Keeping in view the socio-economic conditions of the residents of these unauthorised colonies and ground realities, it is necessitated to recognise and confer rights of ownership or transfer or mortgage to the residents of such colonies on the basis of Power of Attorney, -Agreement to Sale, Will, Possession Letter and other documents including documents evidencing payment of consideration and to facilitate development or re­development to improve existing infrastructure, civic and social amenities which will lead to better quality of life.

The  proposed  National Capital Territory  of Delhi (Recognition  of Property Rights of Residents in Unauthorised Colonies) Bill, 2019, envisages;

  1. to recognize GPA, Will, Agreement to Sell, Purchase and Possession documents, in the light of Suraj Lamp Case Judgment, as a special one-time relaxation for this purpose for the residents of UCs in Delhi;
  2. to provide for registration charge and stamp duty to be levied on the value mentioned in Conveyance Deed or Authorisation Slip and for its applicability on the last transaction only,

The above relief provisions will benefit more than 40 lakh people living in 1,731 Unauthorised Colonies of Delhi as mentioned in the National Capital Territory of Delhi (Recognition of Property Rights of Residents in Unauthorised Colonies) Regulations, 2019 notified on 29.10.2019.

Background

A proposal was submitted by the Ministry of Housing and Urban Affairs (MoHUA) to the Union Cabinet on the basis of report of the Committee headed by the Lieutenant Governor of Delhi to confer or recognise the rights of ownership or transfer or mortgage of property in UCs of Delhi. The Cabinet approved the proposal in its meeting held on 23.10.2019 and accordingly, the Regulations to confer or recognise the rights of ownership or transfer or mortgage of property in UCs of Delhi have been notified on 29,10.2019.

The ownership of the properties in unauthorised colonies have been transferred several times through registered or unregistered or notarised Power of Attorney, Agreement to Sale, Will, Possession and Payment letters. Further, the stamp duty on these multiple transactions, have neither been assessed nor paid.

The stamp duty on the Conveyance Deed or Authorisation Slip, as the case may be, is leviable as per minimum rates (Circle Rates) specified in the notification of the Government of National Capital Territory of Delhi published vide number F.1 (953) Regn.Br./Div.Com/HQ/2014, dated the 22nd September, 2014 or the sale consideration mentioned in the Conveyance Deed or Authorisation Slip, as the case may be, whichever is higher.


Cabinet

[Press Release dt. 20-11-2019]

[Source: PIB]

Case BriefsHigh Courts

Himachal Pradesh High Court: The instant writ is before the bench of Tarlok Singh Chauhan, J. filed by the appellant who was aggrieved by the reversed judgment of the trial court passed by First Appellate Court. 

The factual matrix of the case was that the appellant filed a suit for declaration on the allegation that the disputed land was ancestral joint Hindu coparcenary property of the parties and the deceased had no right to execute Will in favor of the respondents who were the sons of the deceased. The cases of the respondents were that they initially objected the suit on maintainability, want of cause of action and non-joinder of necessary parties. The respondents denied the disputed land to be the joint Hindu coparcenary property of the parties and alleged that it was separate property in the hands of the deceased father, Bale Ram. According to the respondents, the suit was bad for non-joinder of necessary parties because besides three sons, deceased had a widow and six daughters, and it was argued that being a necessary party they had to be joined for proper adjudication of the suit. After recording evidence and evaluating the same, the learned trial Court decreed the suit for declaration as per the appellant, however, the relief of permanent prohibitory injunction was refused on the ground that the parties were co-sharers.

Hence, aggrieved by the judgment of trial Court the respondent filed an appeal in the First Appeal Court, the Court then allowed the appeal and the objections of the present appellant were rejected. 

The Court highlighted that the issue to be discussed was whether the Lower Appellate Court had committed an error of law and had acted with material illegality in rejecting the application filed by the present appellant for leading additional evidences under Order 41 Rule 27 of CPC? And whether the property was an ancestral property, were such findings illegal and perverse? 

The Court held that it was categorically conceded before the Lower Appellate Court that the property in hands of deceased was ancestral hence the Will was non-executable. The present appellant wanted to submit the additional pieces of evidence to prove that the disputed land was ancestral property and now the position was proved, the issues were decided in favor of present appellant. The contention of respondent in the trial as to suit was liable to be dismissed as the necessary party was not joined, was also rejected as the Court stated that such issue was already adjudicated, the Court held that, “the finding recorded by the learned trial Court for coming to the conclusion that the suit is not bad for non-joinder of necessary parties is totally perverse as it was unmindful of the fact that it was dealing with a case of co-sharers, who belonged to one family and were all offspring of deceased.” 

The Court further held that it had to be mindful regarding the developments of law which took place during the pendency of the suit i.e., amendment of Section 6 of Hindu Succession Act, where the daughters were held to be coparceners. Hence, the Court also upheld the view of the First Appellate Court while rejecting the contrary to the trial Court. It was held by the First Appellate Court that, “if the suit land is the separate property of Bale Ram, the whole of it will devolve not only on the plaintiffs and defendants but the other heirs of Bale Ram i.e. his widow and daughters. When this fact was especially disclosed by the defendants the plaintiffs were bound to implead them as a party.”

Thus, the Judgment of the First Appellate Court was upheld where the judgment of the trial Court in favor of the appellant was reversed. It was finally held that, the property was a coparcenary property hence the Will was not maintainable but the suit related to declaration had to be dealt according to amended Section 6. [Anil Kumar v. Sher Singh, 2019 SCC OnLine HP 1009, decided on 12-07-2019]

Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J. examined the scope of jurisdiction to be exercised by the Probate Court, and allowed an appeal filed against the order of the Probate Court whereby the appellant’s application under Section 276 of the Indian Succession Act for probate of will of her deceased husband was rejected.

Aggrieved by the said rejection, the appellant preferred the present first appeal. T.S. Ingale, counsel for the appellant submitted that in the proceedings for grant of probate with a will annexed, the Court exercising testamentary jurisdiction is not concerned with title to the property.

Having considered the facts of the case and the settled law as regards the scope of jurisdiction of the Probate Court, the High Court was of the view: “the learned Judge while deciding the application for probate has exceeded his jurisdiction by enquiring into the issues of title in the probate proceedings. The learned Judge while deciding the application for probate ought not to have made enquiry about the  competency of the deceased to bequeath the pensionary benefits to the appellant and ought to have only enquired into, whether the appellant has proved execution of the will  and the deceased was in sound state of mind at the time of executing the will.”

It was also stated that the appellant had proved the genuineness of the will and its due execution. In such circumstances, the Court was of the view that the Probate Application filed by the appellant was required to be allowed. Order was made accordingly, and the impugned order was set aside. [Kamal Mahaling Patil v. Indubhai Mahaling Patil, 2019 SCC OnLine Bom 954, decided on 26-04-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: The Bench of Vivek Rusia, J. upheld the order of dismissal for want of locus standi passed by Wakf Tribunal, Bhopal, in a civil revision application. 

The deceased applicant, Iqbal Ahmad in legal capacity of legal heir applied to the Wakf for declaration of his title as Mujahir and Mutawali of Dargah he further pleaded the Tribunal to declare the auction by Tehsildar, of the appended land of Dargah illegal, which is in favor of the defendant and to restrain him from interfering with his peaceful possession. Applicant’s deceased father, Mushtaq Ahmed registered the said land in the year 1974 with the Tribunal and requested for upholding his title as Mutawali. The Court has granted an injunction in favor of the applicant’s father, despite the stay order the Tehsildar has auctioned the land in favour of the defendant. After the death of his father, he applied the Wakf for declaration of his title after submitting the adequate fees. 

The defendant raised an objection based on the ‘Locus Standi’ of the applicant, the said applicant is claiming title based on the Will of the deceased, further, they contended that the suit of the deceased is pending hence, the applicant cannot claim his title on the basis of the uncertain title of the deceased. 

The Tribunal held, “The plaintiff had no locus to challenge the auction as, during pendency of the Civil Revision, his right has not been established over the land.” The Tribunal dismissed the claim of the application and rejected his plaint. Being aggrieved by the order of Tribunal the deceased filed the Revision Petition which was carried forward by his son Irfan Ahmed as right to sue survives. He contended that he is the successor Mujahir and Mutawali, he has helped his ancestors in the working of Dargah and performed his duties as Mutawali.  

The Court observed, right to become a Mujahir and Mutawali claimed by Mustaq Ahmed on the basis of Will is yet to be established by the Court. However, Iqbal Ahmed was brought on record in place of Mustaq Ahmed by virtue of the Will in his favour hence, his right to become a Mujahir and Mutawali is also liable to be established. Irfan Ahmed is also required to establish his right to become Mujahir and Mutawali in place of Mustaq Ahmed and Iqbal Ahmed. 

It is important to mention here that in the Civil Revision filed by the Mustaq Ahmed, name of the applicant has been brought on record as legal representative and the Supreme Court has issued a direction for deciding the said revision treating to be filed by the present applicant

The Court further held, “Unless the right of Mustaq Ahmed is established, Iqbal Ahmed and Irfan Ahmed cannot claim by way of succession or the Will, therefore, all these issues can be decided in a civil suit if Irfan Ahmed files an application for bringing his name in place of Iqbal Ahmed. If such an application is filed then same be allowed & the Tribunal is directed to decide the pending civil suit and if the application has not been filed so far, then the liberty is granted to Irfan Ahmed to file such an application. The Tribunal did not commit any error while holding that Iqbal Ahmed had no locus to file the suit during pendency of Civil Revision No.462/1999 now, after the remand Civil Suit No.141/1997. Hence, I do not find any illegality in the impugned order.”[Irfan Ahmed v. M.P. Wakf Board, Civil Revision No. 303 of 2015, Order dated 01-05-2019]

Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K. Agrawal, J. has held that a Government servant is not entitled to make a Will of the family pension which is granted in accordance with the service rules.

Vijay Kumar Kaushik, Head Constable in the Police Department, died in harness. He had two wives and children from each of them. After his death, the first wife and her children (petitioners) made an application under Section 372 of the Indian Succession Act, 1925 for grant of Succession Certificate claiming family pension, gratuity, and other benefits. This was opposed by the second wife and her children (respondents) contending that Vijay Kumar had already made a Will in their favour and also nominated them in service records, and therefore the petitioners were not entitled for grant of succession certificate. Petitioner’s application was rejected by the trial court, which decision had been affirmed by the appellate court. Aggrieved thereby, the petitioners filed the present revision petition under Section 388(3) of the 1925 Act.

Shivali Dubey, Advocate appeared for the petitioners; Devesh Chandra Verma, Advocate represented the respondents (second wife and her children); and Hari Agrawal, Advocate appeared as amicus curiae, whose assistance was appreciated by the Court.

Applying the principles laid down by the Supreme Court in Jodh Singh v. Union of India, (1980) 4 SCC 306; Violet Isaac v. Union of India, (1991) 1 SCC 725; and Nitu Singh v. Sheela Rani, (2016) 16 SCC 229, the High Court recapitulated the guiding principles of law relating to retiral benefits vis-a-vis their testamentary disposition:

(i) An employee has no power of testamentary disposition with respect to something which was not payable to him during his lifetime.

(ii) If the qualifying event/benefit occurs only on the death of the deceased while he is in service and due to this, some monetary benefits accrue, it would not form part of the estate of the deceased and the same cannot be disposed by testamentary disposition because there is an element of uncertainty of happening of event.

(iii) If the scheme and/or service rules designate certain persons who are entitled to receive benefits out of the scheme, then no other person except those designated persons can be entitled to the said benefits.

(iv) If the employee makes no contribution to the benefit, he has no control over the same to dispose it by testamentary disposition.

(v) If the scheme/Rules do not provide for the nomination of any person during the lifetime of the deceased employee, he has no title to the same and it cannot be disposed by testamentary disposition.

However, it was made clear that the said principles are not exhaustive and the condition laid above are independent of each other and not mutually destructive and in the event of any of the conditions being fulfilled, it cannot be said that testamentary disposition can be made with respect to the said benefit.

In light of the principles, the Court decided the present revision petition under different heads. The disbursement of the family pension, gratuity and other retirement benefits in the present case were governed by Chhattisgarh Civil Services (Pension) Rules, 1976. As far as family pension was concerned, it was held that same was payable only to the family of a deceased employee, and Petitioner 1 being the legally wedded wife of Vijay Kumar, she was entitled to the entire amount of the said pension. Similarly, ex-gratia amount and police welfare amount were payable only after the death of the employee. As such, they did not form part of the estate of the deceased and thus could not be disposed by way of testamentary disposition. However, the benefits under the heads of gratuity, leave encashment, group insurance scheme, family benefits fund and department provident funds formed part of the estate of the deceased employee and therefore could be disposed by in terms of the Will made by the deceased employee.

Consequently, the petitioners were held entitled to the Succession Certificate with regard to family pension, ex-gratia and police welfare payment. The revision petition was disposed of in such terms. [Samunda Bai v. General Public, 2019 SCC OnLine Chh 29, dated 15-04-2019]

Case BriefsHigh Courts

Punjab & Haryana High Court: Appellant had prayed before the Bench of Surinder Gupta, J., that the Will made by mother of both the parties was illegal, null and void being obtained by the respondent under undue influence, coercion, misrepresentation and that she was incompetent to make Will of conjoint property.

The Trial Court had upheld the Will executed by the mother and suit of the appellant was dismissed. It was submitted that both the parties had equally contributed to purchase the land though it was purchased on their mother’s name who could not have purchased the land being a household lady. Thus, Will executed by her was illegal being obtained under undue influence, coercion, misrepresentation. Trial Court found the Will to be validly executed and thus under Section 14 of Hindu Succession Act, 1956 the mother was the absolute owner of the suit property and was competent to execute the Will. Statement of account was brought before Court as proof that the appellant had contributed to the sale of the property.

High Court was of the view that even if the financial contribution was done for sale the transaction cannot be said to be Benami transaction. Therefore, the appeal was dismissed and Courts below have not committed any error in stating that Will was valid, registered and rightly executed. [Dharam Singh v. Anil Kumar, 2019 SCC OnLine P&H 428, decided on 23-04-2019]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Jayant Nath, J. allowed a petition filed under Section 228 read with Section 276 of the Indian Succession Act, 1925 seeking grant of Letters of Administration in respect of a Will.

It was pleaded by the petitioner that the testator’s (who died in 2016) Will dated 20-11-1992 was proved and registered in the High Court of Justice, Family Division, Leeds District Probate Registry, United Kingdom. It was stated that the petitioner, along with the Solicitor, was appointed as the executor and trustee of the Will. Furthermore, due to death of the Solicitor, the petitioner was the sole executor and trustee of the Will. The Court directed the petitioner to file an affidavit to prove the certified copy of the Will; the petitioner complied.

The Court perused the law on the subject and found favour with petitioner’s submission that under Section 228, once the Will has been proved and registered in a Court of competent jurisdiction, the Letters of Administration can be granted. The Court held that the petitioner placed on record a properly authenticated copy of the subject Will which was allowed and the Letters of Administration was granted as prayed for.[Mark Douglas Holford v. State,2018 SCC OnLine Del 12297, decided on 01-10-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Single Judge Bench comprising of Ramendra Jain, J., allowed recalling and re-examination of prosecution witness no. 6 (PW 6)- handwriting expert.

In the matter at hand, a question arose as to the veracity of signatures of the attesting witness to the Will in question. To prove the veracity of signatures, handwriting expert (PW 6) was called. However, he gave his report regarding only one out of two signatures of the attesting witness to the Will. The petitioner prayed for recalling the said witness for re-examination, which was disallowed by the trial court. That decision was challenged in the instant revision.

The High Court found merit in the revision for the simple reason that there was an inadvertence on the part of PW 6 in giving report only in respect of one out of two signatures of the attesting witness. The Court held, ‘no litigant should be non-suited on account of inadvertent lapse of the witness’. Further, recalling and re-examination of PW 6 would neither change nature of the suit nor cause any prejudice to the opposite side. In view of the above, the revision was allowed and re-examination of PW 6 was directed. [Ram Lal v. Lakhbir Singh,2018 SCC OnLine P&H 622, dated 01-03-2018]

Case BriefsHigh Courts

Bombay High Court at Goa: A Single Judge Bench comprising of C.V. Bhadang, J., dismissed an appeal filed against the concurrent findings of the courts below that resulted in decreeing the suit of the respondents.

The matter related to the validity of the Will in question. The respondents had filed a regular civil suit against the appellant, contending that the said Will was obtained by undue influence exercised by the appellants over the testator. The trial court framed as many as eight issues. And after appreciation of evidence, decreed the suit of the respondents. Appellant preferred an appeal before the district judge. However, the same got dismissed. Aggrieved thus, the appellant approached the High Court. It was submitted that the Appellate Court did not frame proper points which violated Order 41 Rule 31 CPC.

The High Court, on a careful consideration of rival submissions made on behalf of the parties, was of the view that appeal did not raise any substantial question of law. The Court observed that when an appeal is heard on merits, the High Court has to examine whether the failure of the first Appellate Court to formulate the questions as required by Order 41 Rule 31 has resulted in miscarriage of justice. The Court was of the opinion that the points framed by the Appellate Court showed that all the necessary issues were covered. Further, the Court observed that Section 99 of CPC inter alia provides that no decree shall be reversed or substantially varied, nor shall any case be remanded in appeal on account of any error not affecting the merits of the case or the jurisdiction of the court. The Court held that in the instant case there was no such miscarriage of justice that affected the merits of the case. The Court did not find it a fit case to interfere with the impugned judgment. Therefore, the appeal was dismissed. [Shablo Govind Gaude v. Kashinath Govind Gaude,2018 SCC OnLine Bom 1239, dated 14-6-2018]