Madhya Pradesh High Court
Case BriefsHigh Courts

   

Madhya Pradesh High Court: Dwarka Dhish Bansal, J., while dismissing a second appeal held that in presence of prior execution of agreement of Gift, the Will becomes a suspicious document.

The factual matrix of the case was that the land in question belonged to a deceased-Vindeshwari Prasad. It was alleged in the plaint that after the death of Vindeshwari Prasad, the plaintiffs and defendants 1-2 were having 1/3rd share each and there was no right vested in defendants 3-6. The instant suit was filed as second appeal against the judgement rendered by Additional District Judge (Fast Track Court) Rewa which had confirmed the judgment and decree passed by 5th Civil Judge Class-II Rewa.

It was submitted by the appellant that in view of the concurrent finding of the fact that the plaintiff was not in physical possession of the land, the suit filed was not maintainable in view of provision under Section 34 of the Specific Relief Act, 1963. It was further contended by the appellants that in absence of the evidence of any forged document, the suit was not maintainable. It was contended by the appellants that Will in question was not a proven document and the Trial Court had made an error.

The counsel for the respondent submitted that as the Will was not proved by the defendants 3-5 and could not been found proved by the Courts, no interference could be warranted in the second appeal. It was further contended by the respondents that Will in question was propounded by the defendants 3-5, and therefore they were liable. It was also contended by the respondents that the property in question was an agriculture /revenue paying land and partition had to be effected by the Tehsildar.

The first substantial question of law was whether the declaration of share could be made irrespective of Section 34 of Specific Relief Act, 1963. The High Court came to the conclusion that the declaration of share could be made irrespective of Section 34 of the Specific Relief Act, especially in case where the land was agriculture land. The Court relied on the judgement of Karelal v. Gyanbai, 2018 SCC OnLine MP 1021 where there were identical set of facts and circumstances, and the Court had held that- “The matter can be ascertained from another angle also. In the present case, only the agricultural land is the disputed property. If the defendants had never challenged the rights and title of the plaintiffs, then there was no need for the plaintiffs to file a suit for declaration of title or even for partition.”

The second substantial question of law was that the Will was propounded by defendants 3-5, therefore it was for them to prove Will in question which was not proved by the Courts below. The Court relied on the judgment of Anathula Sudhakar v. P. Bucchi Reddy, (2008) 4 SCC 594 where it was held that “a cloud is said to raise over the person’s title, when some apparent defect in his title to a property, or when some prima facie right of a third party over, is made or shown.” The Court pointed out that the principle enshrined in order 6 rule 13 Civil Procedure Code, 1908 is also worth importance wherein it was specifically laid down that the burden of proving the will always lies upon the propounder, i.e. defendant in the present case. The Court also considered the proposition laid down by Supreme Court in Anathula Sudhakar after which it became apparent that a relief of declaration is required to be sought only when the defendant is able to show any apparent defect in title of plaintiff. It was observed by the Court that the findings with regard to the execution of the will was purely a question of fact and therefore cannot be interfered with by this Court as it was laid down in Sham lal v. Sanjeev Kumar, (2009) 12 SCC 454. The Court held that in presence of prior execution of Agreement of Gift, the Will becomes a suspicious document.

The High Court dismissed the second appeal.

[Ramkali v. Murirtkumari, Second Appeal No.1015 of 2004, decided on 20-07-2022]


Advocates who appeared in this case :

Sankalp Kochar, Advocate, for the Petitioner;

Ashok Lalwani, Advocate, for the Respondent.

Case BriefsHigh Courts

Delhi High Court: In a matter with regard to the grant of leave to defend, Subramonium Prasad, J., expressed that, the tenant cannot merely make allegations that the landlord has other premises without producing some material to substantiate the same.

On being aggrieved by the order of the Additional Rent Controller rejecting the leave to defend application filed by the petitioner and resultantly allowing the eviction petition filed by the respondent (landlord), the tenant approached this, Court.

Analysis, Law and Decision

High Court expressed that, it is a well-settled position that a tenant may take all kinds of pleas in its application for leave to defend but the Rent Controller has to ensure that the purpose of Chapter III of the Rent Control Act is not defeated by granting leave to defend in every frivolous plea raised by the tenant which may result in protracting the case.

“Where the tenant seeks leave to contest the application for eviction, he must file an affidavit under sub-section (4) of Section 25-B raising his defence and this defence must be clear, specific and positive. Defences of negative character which are intended to put the landlord to proof or are vague or are raised mala fide only to gain time and protract the proceedings, must not be taken into account by the Rent Controller and such applications must be rejected.”

It was noted that, in the present case the tenant had itself produced the Will under which the landlord had claimed rent and the tenant had started paying rent and after having started paying rent to the landlord, it was not open for the tenant to turn around and challenge the title of the landlord.

“…Section 116 of the Indian Evidence Act as an estoppel on the Tenant to challenge the title of the Landlord during the continuation of the tenancy.”

Further, it was also settled that mere assertions made by tenant with respect to landlord’s ownership of other buildings and with respect to alternate accommodations were not to be considered sufficient for grant of leave to defend.

Supreme Court’s decision in, Abid-ul-Islam v. Inder Sain Dua, 2022 SCC OnLine SC 419 was referred.

Observing further, the Court stated that it is well settled that at the time of filing an eviction petition the landlord need not have a degree in the trade he/she wants to embark upon.

“…this Court does not deem it prudent, in consonance with settled law, to displace the needs of the Landlord with its own Judgment of how the Landlord should conduct its business or utilise their premises.”

In Court’s opinion, the order of Rent Controller did not suffer from legal infirmities, hence the present petition was dismissed. [Department of Posts v. Surinder Babu Jain, 2022 SCC OnLine Del 1565, decided on 25-5-2022]


Advocates before the Court:

For the Petitioners:

Ms. Anju Gupta, Mr. Roshan Lal Goel, Advocates

For the Respondent:

Mr. Ajay Gupta, Ms. Surbhi Gupta, Mr. Aishwary Jain, Mr. Anant Gupta, Advocates

Case BriefsHigh Courts

Delhi High Court: Whether the third party can be absolved from contempt if they are informed that their conduct would violate the Court order, Subramonium Prasad, J., reiterated the well-settled position that though broadly a person who is not a party to the proceedings cannot be proceeded against for violation of the order, but a third party cannot seek to absolve themselves if they are informed about the fact that their conduct amounts to a violation of the Court and that despite the information, they choose to willfully flout the mandate of the Court.

A contempt petition had been filed for wilful disobedience of this Court’s Order.

Factual Matrix

Petitioner had inherited a property from her late sister. The brother-in-law i.e., R.N. Kapur of the petitioner resided on the ground floor of that property along with his wife who was also the petitioner’s sister. On her death, R.N. Kapur filed a suit claiming to be the owner of the ground floor of the property.

It was stated that the above-stated suit was settled before and in terms of the said settlement, a joint application under Order XXIII Rule 1/3 read with Section 151 CPC was filed before this Court and a decree was passed in presence of the plaintiff and defendants. After the death of R.N. Kapur, the petitioner with directions of this Court took possession of the property.

Further, it was found that respondents 1,2 and 3 had trespassed the property in question. Consequently, the petitioner filed a complaint before the local police and an FIR was registered under Sections 448/34 IPC.

Respondents were also made aware of the undertaking given by R.N. Kapur and despite being made aware of the same, they did not vacate the premises which resulted in the present filing of contempt petition.

The question that arose in the present matter was:

Whether respondents committed contempt of Court or not?

Section 2(b) of the Contempt of Courts Act, 1971 defines “civil contempt” as wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a Court. 

High Court expressed that the law of contempt had been brought primarily to secure public respect and confidence in the judicial process and provide a sanction for any act or conduct which is likely to destroy or impair such respect and confidence.

In U.N. Bora v. Assam Roller Flour Mills Assn., (2022) 1 SCC 101, after analysing the various principles of law on the point rendered, the Supreme Court itself has laid down the parameters as to when action under the Contempt of Courts Act should be initiated.

As per the facts of the case, respondent 1 claimed ownership of the property through Will given by R.N. Kapur which was executed before the decree was passed on 14-3-2012 which was passed in pursuance of the Settlement Agreement which was based upon the undertaking that had been given by R.N. Kapur.

The Bench stated that the undertaking given by R.N. Kapoor before this Court will take precedence over the Will executed by him prior to giving the said undertaking.

The Court opined that the undertaking given to the Court has to be respected and cannot be permitted to be circumvented by saying that the respondents were not parties to the suit and have not given the undertaking.

Hence, the contention that the respondent cannot be held liable for the contempt of the Court as they were not parties to the Suit and had not given the undertaking to the Court cannot be accepted.

The Court observed that,

Disobedience of an order of the Court, if permitted, will result in striking at the root of the rule of law on which our system of governance is based.

Therefore, the power to punish for contempt is necessary for the maintenance of an effective legal system and the Contempt of Court Act, 1971 had been legislated to prevent interference in the course of administration of justice.

Stating the assuming that respondent 1 was initially not aware of the consent decree, the moment she was informed about the undertaking given by R.N. Kapur, through whom respondent 1 derived title, she ought to have respected the same and not breached it, hence the High Court held that obstinate and wilful act on the part of the respondent not to obey consent decree amounted to civil contempt.

High Court decided that the respondents were liable for punishment under Section 12 of the Contempt of Courts Act, 1971. [Indra Pasricha v. Deepika Chauhan, 2022 SCC OnLine Del 1090, decided on 19-4-2022]


Advocates before the Court:

For the Petitioner:

Mr Ashutosh Lohia, Mr Soumya Kumar, Advocates

For the Respondents:

Mr Ravi P Mehrotra, Senior Advocate with Mr Vibhu Tiwari, Advocate for R-1 & R-3

Mr Gautam Narayan, ASC for GNCTD with Mr Aditya Nair, Advocate for SHO, Hauz Khas

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: In a matter, wherein a senior citizen has approached the Court with her grievance with respect to her son, Murali Purushothaman, J., expressed that,

“When the Senior Citizen or parent who has earnings makes an application to the Maintenance Tribunal contending that her right to earning is obstructed by the son who has statutory obligation to maintain the parent, the Maintenance Tribunal has to ensure that the Senior Citizen or parent is able to maintain herself from her earnings.”

“To care for those who once cared for us is one of the biggest honours.”

Question for Consideration


If the parent is able to maintain herself from her own earnings, but the son has obstructed the parent to have access to her earning, can the Maintenance Tribunal constituted under the Senior Citizens Act direct the son not to obstruct the parent from taking the earnings and to create a peaceful living atmosphere for her in the residence?

Petitioner, a senior citizen was the wife of K.V. Eapen who had executed Will, whereby life interest was created in favour of the petitioner in respect of A schedule properties in the Will and after her death, the property was to devolve absolutely in favour of their son, the 4th respondent.

As per the Will, the petitioner can enjoy A schedule properties with absolute freedom including the right to collect and take all income and to reside in the house ad libitum.

Later, the Petitioner preferred an application before the Maintenance Tribunal under the Senior Citizens Act against the 4th respondent son and the 5th respondent daughter in law, alleging that they were not maintaining her and were not permitting her and her mother-in-law to stay in the house peacefully and to enjoy or collect usufructs from the property covered by the Will.

Reliefs sought before the Maintenance Tribunal:

(i) to ensure a peaceful living for her and her mother-in-law in the house,

(ii) the right to take usufructs from the property,

(iii) the right to sell the agricultural products yielded during the lifetime of her husband,

(iv) protection for life from son and daughter in law.

Maintenance Tribunal directed respondents 4 and 5:

i) not to obstruct the petitioner from taking usufructs from the property

(ii) to create a peaceful living atmosphere for the petitioner in the house, and

(iii) not to cause any harm to the petitioner.

Petitioner contended that the Maintenance Tribunal did not take any steps to enforce the above-said order, hence the present petition was filed.

Analysis, Law and Decision


A senior citizen including a parent who is unable to maintain himself from his own earning or out of the property owned by him alone is entitled to maintain an application under Section 5.

 High Court expressed that, when a Senior Citizen or parent who has earning makes an application to the Maintenance Tribunal contending that her right to earning is obstructed by the son who has statutory obligation to maintain the parent, the Maintenance Tribunal has to ensure that the senior citizen or parent is able to maintain herself from her earnings.

Power of the Maintenance Tribunal under the Senior Citizens Act is not circumscribed to mere ordering of monthly allowance for maintenance of senior citizen where the relative or children neglect or refuses to maintain the senior citizen or parent, but to ensure maintenance from own earnings to lead a dignified life.

In the present case as well, the directions of the Maintenance tribunal are to remove the incapacity of the petitioner to maintain herself, so that she is not left destitute, but leads a normal dignified life.

The three directions passed by the Maintenance Tribunal, were in furtherance of the purpose of the Act, to ensure that the petitioner maintains herself out of her own earnings to live a normal life with peace, security and dignity.

The Bench added that respondents 4 and 5 cannot just walk away from the moral and statutory obligation to maintain the petitioner. They cannot be permitted to take advantage of their own wrong.

The power of the Maintenance Tribunal under the Senior Citizens Act is not circumscribed to ordering of monthly allowance to be paid in monetary terms for maintenance of senior citizen, but also to ensure maintenance from his own earnings if any, to lead a dignified life.

The Court directed the District Magistrate to take necessary steps to enforce the Maintenance Tribunal’s order within a period of three months. Further, the Bench added that the District Magistrate shall before taking steps to enforce the order make an attempt to see whether the matter can be amicably settled between the petitioner and her son and daughter in law so that they all live in comfort.

In view of the above, the petition was allowed. [Leelamma Eapen v. District Magistrate, 2022 SCC OnLine Ker 1560, decided on 28-3-2022]


Advocates before the Court:

For the Petitioner:

BY ADV SRI.K.M.VARGHESE

For the Respondents:

BY ADV MS.BEA MARY BENNY-R4,5

          GP SRI.C.N.PRABHAKARAN

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: Expressing that the due execution of a Will is to be proved as per the provisions of law as laid down in Evidence Act as well as that if Indian Succession Act,  Gautam Kumar Choudhary, J., remarked that, a probate court being a Court of conscience, the intention of the testator is paramount and it is the bounden duty of the Court to ascertain the real WILL of the testator if any.

Appellants preferred the present appeal against the order granting probate of Will executed by the testator in favour of his daughter (applicant) with respect to a land.

Applicant’s case was that the suit land was the self-acquired property of the testator who executed the Will.

It was asserted that the Will was executed out of free will and in perfect health.

Though the objector’s (son) case was that the testator never executed any Will and the said Will was forged and fabricated.

Analysis, Law and Decision

High Court expressed that a probate court is not competent to determine the title of schedule property.

Additionally, the Court observed that,

The jurisdiction of a probate court is limited to determination that the will executed by the testator was his last will. Whether he had right to execute the will with respect to the schedule property is beyond the scope of the court considering a probate application.

In the Supreme Court decision of Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon, (2007) 11 SCC 357, it was held that,

“the court of probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. Therefore, the only issue in a probate proceeding relates to the genuineness and due execution of the will and the court itself is under duty to determine it and preserve the original will in its custody. The Succession Act is a self-contained code insofar as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the Probate Court”. 

Further, the Bench added that,

Testamentary disposition of property is deviation from natural line of inheritance in lesser or greater degree. It may result in complete disposition in favour of one of the heirs of the testator or it may even be in complete exclusion of any of the heir.

In view of the facts and circumstances of the case, Court affirmed the lower Court’s order. [Neelam Singh v. Sudha Sinha, Misc. Appeal No. 123 of 2012, decided on 10-3-2022]


Advocates before the Court:

For the Appellants: Mr. Anil Kumar Sinha, Advocates

For the Respondents: M/s A.K. Das & Swati Shalini, Advocates

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Ravindra Maithani, J. dismissed an appeal that challenged an order given by the court of Civil Judge pertaining to cancellation of gift deed.

Appellant was aggrieved by that part of order by which an ad-interim injunction was not granted. He had purchased an agricultural property in the year 1989 and his father, Manmohan Thapar constructed a resort thereupon. In the year 2007, father insisted for construction of the resort, but the appellant was not in a position to undertake that task at that point of time. He insisted the appellant and his brother to transfer the shares in the property, in his favour to facilitate the requisite permission and licenses for construction of resort and the same were transferred on 13-04-2007.

In the year 2015, the appellant came to know about the marriage of Manmohan Thapar with the respondent, who was working as a Secretary with Manmohan Thapar. Respondent furnished herself as unmarried, though she was married and had a child. Manmohan Thapar expired on 26-07-2019 and the appellant came to know about his will dated 18-11-2006 in the year 2019. The property was mutated in the name of respondent on the basis of the gift deed dated 27-02-2013.

The suit was filed for the cancellation of the Gift deed as also for permanent injunction. The appellant also moved an application under Order 39 Rules 1& 2 of the Code. The Court below observed that there was no ground to grant ex-parte ad-interim-injunction and issued notice.

The appellant and his brother transferred their shares in the property to him in the year 2007. Therefore, it was argued that this will was not genuine.

When they came to know about the gift deed, the respondent mutated her name in the revenue records. It was the case that mutation was done on the basis of gift deed which was allegedly executed sometimes in the year 2013. The respondent was recorded tenure holder.

Without making any further observation with regard to merits of the case, the Court was of the view that the Court had not committed any error in denying to issue ex-parte temporary injunction to the appellant. The appeal was dismissed.[Samir Thapar v. Tiny Kesag Ligtsang Thapar, 2022 SCC OnLine Utt 68, decided on 11-02-2022]


Mr U. K. Uniyal, Senior Advocate, assisted by Mr Rajesh Sharma, Advocate for the appellant.

Mr V. S. Rathore, AGA for the State


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Gujarat High Court: A.P. Thaker, J. decided over a petition wherein the case of the petitioner was that the properties in question were originaly private properties of Guru Keshavdas, and after the death of Guru Keshavdas, Guru Karsandas became the Mahant and succeeded the properties under his Will. On the death of Guru Karsandas his chela Guru Atmaram became Mahant and succeeded to the properties of Guru Karsandas under his Will dated 08.12.1941. Thereafter, Guru Atmaram died leaving his Will dated 06-05-1947, appointing Guru Ranchhodas as Chela.

Second Class Magistrate Baroda held that Ranchhodas was shishya and heir of Guru Atmaram. However, the then District Magistrate set aside the order and held that Guru Ranchoddas had failed to prove that he was shishya of Guru Atmaram. Against that the petitioner had filed Civil Suit which came to be finally disposed of by the Supreme Court in appeal filed by Guru Ranchoddas with a finding that he has failed to prove that he was appointed as chela or shishya by Guru Atmaram. In the year 1968, during the pendency of the suit, one Vitthaldas Patel had applied for registration of the said Ramji Mandir as public trust. Assistant Charity Commissioner in this respect held that the properties of the Mahant were of his ownership and were not any properties of any trust. The said decisions had become final as there has not been any further proceedings undertaken under the Bombay Public Trust Act, 1950.

Thereafter, Guru Ranchoddas under his Will appointed the deceased petitioner no.1 as his

Chela or heir. The Government of Gujarat took a decision to handover the property to the deceased petitioner no.1 immovable properties and cash of Ramji Mandir under temporary custody of Mamlatdar Vadodara.

After llistening to the arguments of the parties it was established that property in question does not belong to the government. Not only it appears fom the record that the property is of private property of late Mahant Atmaram but also the government has assessed the property as unclaimed property. The Court noted that the deceased petitioner was

declared to be a “Chela” or heir of Guru Ranchhoddas by his Will. The petitioner approached the Court of Civil Judge for Succession Certificate by filing Succession Application  and while it was pending decision to hand over the movable and immovable property in favour of the petitioner was taken by the then State Government and proceeding of entrustment of properties to the petitioner was initiated. In that view of the matter, the petitioner withdrew said Succession Application for issuance of succession certificate due to decision of earlier State Government of handing over movable and immovable property to the petitioner. Thus, the petitioner has relinquished his right to get succession certificate.

Next government had stayed the proceedings and intimated the Collector to keep inabayance of the order and granting the properties in favour of the deceased petitioner. Upon considering the averments made in the affidavit in reply it clearly appears that at no point of time any opportunity was given to the petitioner. It is tried law that any order affecting any legal rights of any person, an opportunity of being heard needs to be granted especially when there is one order passed in his favour in respect of moveable or immovable property and the same order has partly implemented. Therefore, it is immediate requirement of principles of natural law and before passing any adverse orders such persons needs to be granted appropriate opportunity of being heard.

The Respondents were directed to give appropriate opportunity to the petitioners of being heard for cancellation of the order of granting moveable and immovable property in favour of deceased petitioner 1.[Mahant Suryaprakash Ranchhoddas v. State of Gujarat, 2022 SCC OnLine Guj 94, decided on 02-02-2022]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a half a century old case relating to a Will, the bench of Sanjay Kishan Kaul* and MM Sundresh, JJ has held that the objective of Section 14(1) of the Hindu Succession Act, 1956[1] is to create an absolute interest in case of a limited interest of the wife where such limited estate owes its origin to law as it stood then. The objective cannot be that a Hindu male who owned self-acquired property is unable to execute a Will giving a limited estate to a wife if all other aspects including maintenance are taken care of.

“If we were to hold so it would imply that if the wife is disinherited under the Will it would be sustainable but if a limited estate is given it would mature into an absolute interest irrespective of the intent of the testator.”

Factual Background

The case relates to the testamentary disposition by a Will dated 15.4.1968 by one Tulsi Ram, who passed away on 17.11.1969.

The Will aforesaid bequeathed the testator’s estate to his son, the appellant herein, and his second wife Ram Devi (the first wife being deceased whose progeny is the appellant). Land measuring 175 kanals and 9 marla, a residential house and a Bara was bequeathed half and half to the appellant and Ram Devi.

However, the nature of bequeath was different for the two. The appellant was given absolute ownership rights to the extent of his share of land and property whereas Ram Devi was given a limited ownership for her enjoyment during her lifetime with respect to her share of the land with a specific provision that she could not alienate, transfer or create third party rights over the same. Thereafter the property was to vest absolutely in the appellant after her lifetime.

Ram Devi, However, entered into sale deed for her share of the property. This was challenged by the appellant as he claimed that Ram Devi only had a limited right in the share.

Analysis of the Provision

Sub-Section (1) of Section 14 of the said Act makes it clear that it applies to properties acquired before or after the commencement of the said Act. Any property so possessed was to be held by her as full owner thereof and not as a limited owner.

The Explanation to sub-Section (1) of Section 14 of the said Act defines the meaning of “property” in this sub-section to include both movable and immovable property acquired by the female Hindu by inheritance or devise or a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, or by her skill or exertion, or by purchase or by prescription or in any other manner whatsoever, including stridhana.

Sub-Section (2) of Section 14 of the said Act is in the nature of a proviso. It begins with a ‘non-obstante clause’. Thus, it says that “nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court….” etc. where a restricted estate in such property is prescribed.

The objective of sub-Section (2) is that there cannot be a fetter in a owner of a property to give a limited estate if he so chooses to do including to his wife but of course if the limited estate is to the wife for her maintenance that would mature in an absolute estate under Section 14(1) of the said Act

Further, the word “possessed” was held to be used in a wide sense not requiring a Hindu woman to be an actual or physical possession of the property and it would suffice if she has a right in the property. The intention of the Parliament was to confine sub-section (2) of Section 14 of the said Act only to two transactions, viz., a gift and a will, which clearly would not include property received by a Hindu female in lieu of maintenance or at a partition. The intention of the Parliament in adding the other categories to sub-section (2) was merely to ensure that any transaction under which a Hindu female gets a new or independent title under any of the modes mentioned in Section 14(2) of the said Act.

The Court observed that the objective of Section 14(1) is to create an absolute interest in case of a limited interest of the wife where such limited estate owes its origin to law as it stood then. The objective cannot be that a Hindu male who owned self-acquired property is unable to execute a Will giving a limited estate to a wife if all other aspects including maintenance are taken care of. Holding so would imply that if the wife is disinherited under the Will it would be sustainable but if a limited estate is given it would mature into an absolute interest irrespective of the intent of the testator. That cannot be the objective.

Ruling on facts

Taking note of the terms of the Will, the Court observed that the testator was clear in terms that the income derived from the property is what is given to the second wife as maintenance while insofar as the properties are concerned, they are divided half and half with the appellant having an absolute share and the wife having a limited estate which after her lifetime was to convert into an absolute estate of the appellant.

The Court noticed:

  • The Will while conferring a limited estate on Ram Devi, Tulsi Ram had clearly stated that she will earn income from the property for her livelihood. The income, thus, generated from the property is what has been given for maintenance and not the property itself.
  • The next clarification is that after the lifetime of Ram Devi, the appellant will get the ownership of the remaining half portion also. It is specified that in case Ram Devi pre-deceases Tulsi Ram, then all the properties would go absolutely to the appellant and that the other children will have no interest in the property.
  • Tulsi Ram had six children. One son and four daughters are from the first wife and Bimla Devi was the daughter from the second wife. At the stage when the Will was executed one of the daughters was unmarried and the Will also provided that in case for performing the marriage Ram Devi needs money she will have the right to mortgage the property and earn money from the same and will further have the right to gain income even prior to the marriage.

The Court, hence, observed that the testator in the present case had taken all care for the needs of maintenance of his wife by ensuring that the revenue generated from the estate would go to her alone. He, however, wished to give only a limited lift interest to her as the second wife with the son inheriting the complete estate after her lifetime.

Hence, it would be the provisions of Section 14(2) of the said Act which would come into play in such a scenario and Ram Devi only had a life interest in her favour. Therefore, the sale deeds in favour of the respondents cannot be sustained.

[Jogi Ram v. Suresh Kumar, 2022 SCC OnLine SC 127, decided on 01.02.2022]


*Judgment by: Justice Sanjay Kishan Kaul


[1] 14. Property of a female Hindu to be her absolute property.— (1) Any property possessed by a female Hindu, whether 9 AIR 2016 SC 1213 10 acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation.—In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: T. Amarnath Goud, J., dealt with a petition wherein the case of the petitioner was that the respondent was not the son of the deceased Kshitish Ghosh and under the garb of certain Wills the respondent was selling the properties which were in dispute before the trial court. Petition further prayed to reconsider DNA testing approval which was dismissed earlier.

The counsel for the petitioner submitted that the first respondent was alienating the properties to third parties and nothing remains for the petitioners who were the siblings if they succeeded before the trial court. Counsel for the first respondent who claimed to be the son of the deceased Kshitish Ghosh and his spouse Fulu Rani Ghosh submitted that in his school records, and birth certificate and all documents indicated that the respondent was the son of the deceased.

The Court observed that it was not disputed that the records and certificates produced by the respondent were in the knowledge of the petitioner. The only attack of the petitioner-plaintiffs before the trial court was challenging the Will and to declare the petitioner-plaintiffs as legal heirs and not the first respondent, Partha Ghosh.

The Court held that unless and until there was a challenge to the birth documents and school register to show that Kshitish Ghosh was not the father of the first respondent, Partha Ghosh, there cannot be any direction to get the DNA of first respondent tested to declare whether he was the son of the deceased Kshitish Ghosh and Fulu Rani Ghosh or not. The Court was of the view that it was not the aspect to be decided by the Court; however, petitioners-plaintiffs are at liberty to move applications before the concerned court seeking appropriate remedy in support of their claim to protect the property.

The Court dismissed the petition not intending to interfere in the matter.[Nirmal Ch Ghosh v. Partha Ghosh, 2022 SCC OnLine Tri 8, decided on 04-01-2022]


Suchita Shukla, Editorial Assistant has reported this brief.


For Petitioner(s) : Mr T. D. Majumder

For Respondent(s): Mr S. Lodh

Case BriefsHigh Courts

Bombay High Court: G.S. Kulkarni, J., addressed an ordeal of a senior citizen who would be soon in her nineties and was subjected to harassment by her son and grandson due to which she desired to end her life.

Court remarked that,

Looking at this case, one would surely perceive the perishing and deterioration of the family and societal values inherent in our culture, beliefs, ideals and traditions that parents and elders are to be treated with highest respect, love and empathy.

It is so disheartening that at such old age when the only expectation of a senior citizen, from the near and dear ones is of care, concern, affection and love, instead, what has been returned is harassment, wretchedness, suffering and abuse.

Background

Respondent 1 (Grandmother) who was 89 years old defended herself against her adamant grandson and her own son in proceedings initiated under the Maintenance and Welfare of Parents and Senior Citizen Act, 2007.

Grandmother had initially approached the Senior Citizen’s Tribunal initially claiming the maintenance.

She submitted that she was scared of her son as he was using all pressure tactics to make sure that she gives away all the assets to him, which were standing in her name and in the name of her late spouse. Further, she pleaded that her son and grandson along with their spouses entered her house, after which continued violence and pressure were created in order to grab the assets which were in her name and in her late husband’s name and not to give any share to her two daughters who also had equal shares in the estate of the grandmother and that of her deceased husband.

The grandmother stated that when she refused to succumb to such pressures and persistence of Jayesh to transfer all the assets in his name, he started behaving violently, which caused her to leave her own flat and stay with one of her daughters. Even after she left her house, the behaviour of her son continued to remain violent, and he started causing distress not only to her life but also to her married daughters.

In view of the above, respondent 1 decided that she would go back to her own house so that her son would not disturb the family members of any of her daughters.

Further, in another petitioner, respondent 1’s grandson took an extremely hard adversarial position asserting his rights more than what her son could assert.

Tribunal had given its decision in favour of the grandmother while giving her the possession of the said house and evicting the son and grandson from the said property.

On being aggrieved by the Tribunals’ decision, both the son and grandson have approached this Court.

Analysis, Law and Decision

High Court noted the stand of the son who stated that he has no objection in vacating the flat, to which the Court expressed that it is a fair stand, and it reflects a relisation on the part of the son that he would not have any legal right when the flat belonged to his mother. Though the grandson still asserted the claim on the basis of a purported Will of his grandfather to claim that the said flat was bequeathed to him.

What did the grandson say with respect to the property?

He admitted the fact that the flat belonged to his grandmother, however, the said flat was bought by his grandfather in his grandmother’s name since she had no source of income, hence his grandfather was the real owner who had bequeathed the flat to him by the purported Will and hence he had become the owner of the flat. However, he made a charitable statement that he would not mind if the grandmother decided to stay with him.

Whether Abhimanyu (Grandson) on the purported Will of his grandfather can refuse to vacate the flat in question?

In Court’s opinion answer would be negative.

Reasons:

  • Respondent 1-grandmother was admittedly the owner of the flat in question, the share certificate in relation to the said flat stood in her name.
  • This flat was continuously reflected in her income-tax returns as her asset. She is also paying the maintenance towards the said flat.
  • She categorically stated not only in her affidavit before the tribunal but also in the affidavit filed before this Court, that she is the sole owner of the said flat.
  • She also submitted that her grandson along with other family members, since the demise of her husband was taking all possible steps to usurp all her properties which were worth about 20 Crores.
  • By public notice, her husband had disowned her son.
  • She has set out repeated events of physical harassment and mental torture which went to such an extent that she attempted to commit suicide.

It was thus clear, that if Abhimanyu intended to assert any right on the flat in question on the basis of any Will of his grandfather, and more particularly, when such will was admittedly not probated, when the parties were within the jurisdiction of this Court, Abhimanyu could not have asserted any right to retain possession or occupation of the grandmother’s flat which independently belonged to her as an owner, which even Abhimanyu does not deny, except for the Will, which in any case are future rights to be established in appropriate adjudication.

Classic case where son Jayesh and grandson Abhimanyu have left no stone unturned to make life of the grandmother a living hell.

Greed of Property

The Bench further expressed that,

Courts have witnessed senior citizens knocking the doors of the Courts throughout the country, praying for reliefs under the Act. It is seen that when such senior citizens have property and when they become physically, psychologically and mentally weak and dependent and or they are in ill health, in such helpless position, the torture, harassment and depravement to them, from self-centered relatives and family members commences so as to grab their property.

While concluding the decision, Bench parted stating that,

“…with a hope that wiser sense would prevail on the petitioners and they would show empathy and mercy towards the grandmother so that she is not required to physically visit any Court as she did for the present proceedings and toil any further.”

Directing the petitioners to vacate the grandmother’s flat within 10 days, Court dismissed the petition. [Abhimanyu Jayesh Jhaveri v. Nirmala Dharmadas Jhaveri, 2021 SCC OnLine Bom 5861, decided on 17-12-2021]


Advocates before the Court:

Mr Kishor S. Patil, Advocate for the Petitioner in WP/4650/2021.

Mr Amit Sale, Advocate for the Petitioner in WP/6916/2021.

Mr Hiral Thakkar i/b. Ms. Vimal Sanghavi, Advocate for the Respondent.


Also Read:

Harassment to grab senior citizen’s property | 94-year old father approaches Court stating he doesn’t want his daughter even for one-minute longer: Read Bom HC’s decision

Case BriefsHigh Courts

Delhi High Court: Asha Menon, J., explained the concept of proving a Will by an attesting witness.

The chamber appeal was preferred by the appellants contesting the order passed by Joint Registrar permitting the attesting witness to be examined prior to the petitioner.

Analysis, Law and Decision

High Court concluded that the Joint Registrar rightly allowed the petitioner to examine the attesting witness prior to his own examination.

Law

Section 295 of the Indian Succession Act, 1925 provides that a contested testamentary action is to be dealt with, as nearly as may be, as a civil suit.

Adding to the above, Court expressed,

Granting that the CPC could be made applicable to the contested testamentary proceedings, as in the present case, it still leaves the court with the discretion to allow the party to be examined subsequent to the examination of his own witnesses.

 Bench emphasized that the Joint Registrar had concluded that prayer of the petitioner was allowed in view of Sections 68, 69 and 71 of the Indian Evidence Act, which provided that where a Will is sought to be proved, its execution must be proved first.

Section 68 of the Indian Evidence Act makes it necessary for the attesting witness to be examined for proving the document, namely, the Will.

Therefore, once ‘Will’ is brought on record in evidence, appellants/respondents would still retain their right to question respondent/petitioner on the validity of the execution of the same, especially in the case where suspicious circumstances exist.

In view of the above, the chamber appeal was dismissed. [Naveen Chander Kapur v. State, 2021 SCC OnLine Del 4753, decided on 22-10-2021]


Advocates before the Court:

For the Petitioner:

Mr Dhiraj Sachdeva, Advocate.

For the Respondents:

Mr Peeyoosh Kalra & Mr Sanad K. Jha, Advocates for appellants/applicants in O.A.22/2021

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]

Himachal Pradesh High Court
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]


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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]


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