Sunday, 19 April 2015

suit for declaration and permanent injunction,

The respondent herein filed the suit against  the   appellants  seeking  for
the relief of declaration  of  his  title  to  the  suit  property  and  for
consequential  relief of permanent  injunction  restraining  the  appellants
herein from interfering with his physical possession. Briefly  the  case  of
the plaintiff is that the suit property belonged  to  Guramma  wife  of  the
first defendant and the mother of the plaintiff and on her death  the  first
defendant had given declaration before the  revenue  authorities  to  change
the Katha in the name of the plaintiff  in  respect  of  the  suit  schedule
property and mutation was effected accordingly and the revenue record  stood
in the name of the plaintiff for a long period of time.  It is  the  further
case of  the  plaintiff  that  the  first  defendant   entered  into  second
marriage with one Jayamma and defendants 2 to 5 are their children and  they
denied the ownership of the plaintiff in the suit  property  and  therefore,
the suit came to be filed.
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                                                                  REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL Nos. 3725-3726 OF 2015
    [Arising out of Special Leave Petition (Civil) Nos. 3377-3378 of2011]



H. Lakshmaiah Reddy & Ors.        ..       Appellants

                                       -vs-

L. Venkatesh Reddy                      ..    Respondent


                               J U D G M E N T

C. NAGAPPAN, J.

Leave granted.
These appeals are  preferred  against  judgment  dated  8.9.2010  in  R.S.A.
No.1500 of 2009 by which the High Court of Karnataka  at  Bangalore  allowed
the Second Appeal filed by the  respondent  herein  and  against  the  final
order dated 25.11.2010 in RP No.398/2010 by which the High  Court  dismissed
the Review Petition filed by the appellant.
The respondent herein filed the suit against  the   appellants  seeking  for
the relief of declaration  of  his  title  to  the  suit  property  and  for
consequential  relief of permanent  injunction  restraining  the  appellants
herein from interfering with his physical possession. Briefly  the  case  of
the plaintiff is that the suit property belonged  to  Guramma  wife  of  the
first defendant and the mother of the plaintiff and on her death  the  first
defendant had given declaration before the  revenue  authorities  to  change
the Katha in the name of the plaintiff  in  respect  of  the  suit  schedule
property and mutation was effected accordingly and the revenue record  stood
in the name of the plaintiff for a long period of time.  It is  the  further
case of  the  plaintiff  that  the  first  defendant   entered  into  second
marriage with one Jayamma and defendants 2 to 5 are their children and  they
denied the ownership of the plaintiff in the suit  property  and  therefore,
the suit came to be filed.
A common written statement was filed by the defendant stating that the  suit
property was purchased in the name of Guramma  under  registered  sale  deed
dated 14.11.1959 and sale consideration was paid by the first defendant  and
after the death of Guramma, the first defendant married Jayamma in 1973  and
defendants 2 to 5 were born out of the wedlock and the plaintiff as well  as
the first defendant being the legal heirs of Guramma had  succeeded  to  the
suit property and the first defendant  gifted a  portion  of  suit  property
measuring 5 acres in favour of defendants 2 to 5  by  registered  gift  deed
dated 12.12.2003 and the suit is liable for dismissal.
The trial court framed seven issues and after  consideration  of   oral  and
documentary evidence  dismissed the suit. On the  appeal  preferred  by  the
plaintiff, the lower appellate court held that the  plaintiff and the  first
defendant being class-I heirs of  deceased  Guramma  are  entitled  to  half
share each in the  suit property and decreed the suit in part.   Challenging
the same the plaintiff preferred second appeal and the  High  Court  allowed
the same by setting aside the judgment of  the  lower  appellate  court  and
decreed the suit  in  full  as  prayed  for.   Aggrieved  by  the  same  the
defendants have preferred the present appeals. For the sake of  convenience,
the parties are described in this judgment as arrayed in the suit.
6.    Mr. Basavaprabhu S. Patil, the learned senior  counsel  appearing  for
the appellants mainly contended that the High Court has failed to note  that
the plaintiff himself had never pleaded a  case  of  relinquishment  of  the
share by the first defendant in the suit property and what  was  pleaded  in
the plaint was  that  he  had  succeeded  to  the  property  of  his  mother
absolutely and his father namely the first defendant  has  consented  before
the revenue authorities for change of name in the Katha  in  favour  of  the
plaintiff in respect of the  suit  schedule  property  and  thus  the  first
defendant had acquiesced to the fact of the entire suit property  being  put
in the name of the plaintiff  and  according  to  the  learned  counsel  the
mutation entry can never be considered as relinquishment of right  or  title
and the High Court has committed a serious error in accepting  the  case  of
the plaintiff and in support of his submissions relied on  the  decision  of
this Court in  Balwant Singh and  another vs. Daulat Singh  (Dead)  by  Lrs.
And ors.  [(1997) 7 SCC 137].
7.    Per contra the learned  Senior counsel appearing  on   behalf  of  the
respondents contended  that pursuant  to  the  statement  made  by  the  1st
defendant to the Revenue Authorities, the entire suit property  was  put  in
the name of plaintiff, by effecting mutation entry  in   Katha  and  revenue
records and  thus the 1st defendant,  by his conduct had acquiesced  to  the
said fact, as rightly held by the  High  Court.  Alternatively  the  learned
senior counsel contended that even if this Court holds in law that  the  1st
defendant continues to be the title holder of   half  of  suit  property  as
class-I heir of deceased  Guramma, in view  of  special  circumstances,  the
justice of the case does not require interference or  the  relief  could  be
moulded in a different fasion.  In support of his submission  he  relied  on
 Taherakhatoon (D) By Lrs.  Vs. Salambin  Mohammad  (1999)  2  SCC  635  and
Chandra Singh & Ors.  Vs. State of Rajasthan & Anr. (2003) 6 SCC 545).
8.    We considered the rival  contentions.  There  is  no  dispute  in  the
factual matrix. Guramma  was  the  first  wife  of  1st  defendant  and  the
plaintiff was their only son and suit property was purchased by  Guramma  by
Exh. P-1 sale deed dated 14.11.1959 and the property stood in  her  name  in
revenue record.  The plaintiff was born on 1.10.1965  and  Guramma  died  on
20.1.1966. As per Section 15 of the Hindu Succession Act,  the  husband  and
the son of deceased Guramma, namely 1st defendant and the  plaintiff,  being
class-I heirs succeeded to the suit property. As per   Exh.  P-8,  Katha  of
suit property was changed to the  name  of  plaintiff  from  his  mother  on
9.1.1990 and  the endorsement therein made by  the  Tahsildar  reveals  that
the 1st defendant  accepted the  mutation  of  entry  in  the  name  of  the
plaintiff, being their only son and on the basis  of the  said  declaration,
the mutation was effected and it was not challenged.  Exh. D-10 is  the  RTC
extract covering the period from 1989 to 1992 and the  plaintiff  was  shown
as the owner of the suit property.
9.    As rightly contended by the learned senior counsel  apearing  for  the
appellants,  1st defendant did not  relinquish  or   release  his  right  in
respect of the half  share in the suit property at any  point  of  time  and
that is also not the case pleaded by the plaintiff.   The assumption on  the
part of the High Court that as a result of  the  mututation,  1st  defendant
divested himself   of the title  and  possession  of  half  share   in  suit
property is wrong.   The mutation entries do not convey  or  extinguish  any
title  and those entries  are relevant only for the  purpose  of  collection
of land   revenue.  The observations of this  Court in Balwant Singh's  case
(supra) are relevant and are extracted below  :
"21. We have considered the rival submissions and we are of  the  view  that
Mr Sanyal is right in his contention that the courts  were  not  correct  in
assuming that as a result of Mutation No. 1311 dated 19-7-1954,  Durga  Devi
lost her title from that date and possession also was given to  the  persons
in whose favour mutation was effected. In Sawarni  vs. Inder Kaur  (1996)  6
SCC 223,  Pattanaik,  J.,  speaking  for  the  Bench  has  clearly  held  as
follows: (SCC p. 227, para 7)
"7. ... Mutation of a property in the revenue  record  does  not  create  or
extinguish title nor has it any presumptive value on title. It only  enables
the person in whose favour mutation is ordered to pay the  land  revenue  in
question. The learned Additional District  Judge  was  wholly  in  error  in
coming to a conclusion that mutation in favour of Inder Kaur  conveys  title
in her favour. This erroneous conclusion has vitiated the entire judgment."

22. Applying the above legal position,  we  hold  that  the  widow  had  not
divested herself of the title in the suit property as a result  of  Mutation
No. 1311 dated 19-7-1954. The assumption on the part  of  the  courts  below
that as a result of the mutation, the widow divested herself  of  the  title
and possession was wrong. If that be so, legally, she was in  possession  on
the date of coming into force of the Hindu Succession  Act  and  she,  as  a
full owner, had every right to deal with the suit properties in  any  manner
she desired."

In the circumstances, we are of the opinion that the  High  Court  erred  in
concluding that the  1st  defendant  by  his  conduct  had  acquiesced   and
divested himself of  title of his  half  share  in  suit  property  and  the
said erroneous  conclusion is liable to be set aside.
10.   The learned senior counsel  appearing  for  the   respondent/plaintiff
strenuously contended that the 1st defendant is now 90 years  old  and  owns
lots  of properties as enumerated in the list furnished by him before   this
Court and the plaintiff is his only son through first  wife  and  litigation
pertains to only  one property namely the suit   property  and  though  this
Court  gave  ample  opportunities,  no    settlement  could  be  arrived  at
between the parties and considering the special  circumstances,  this  Court
in exercise of  jurisdiction under Article 142 of the Constitution  may  not
interfere with the High Court  judgment,  which will do complete justice  to
the parties and relied on the decisions cited  supra.
11.   We are not in a  position to appreciate this  contention.    The  High
Court misdirected  itself  and  committed   serious  error   warranting  our
interference with the impugned judgment.
12.   In the  result the impugned judgment and decree of the High Court  are
 set aside  and the judgment and decree of the  lower  appellate   court  is
restored and the appeals are allowed in  the above terms.  No costs.


                                        ..................................J.
                                                           (V. Gopala Gowda)

                                        ..................................J.
                                                               (C. Nagappan)
New  Delhi;
April  17 ,  2015



suit for declaration possession and damages on basis of will.

 In the instant case, the suspicious circumstance appears  to  be  that
when the Will was being executed, the  thumb  impression  over  the  alleged
Will was also taken by the beneficiaries and the document-writer  was  shown
to be scribe of the document, whereas the document was not scribed  by  him.
However, late Phoolbasa Bai although  filed  written  statement  before  her
death, but she did not whisper  anything  about  the  Will  in  the  written
statement.  Admittedly, the Will was allegedly executed in 1977 whereas  the
written statement was filed some time in 1987.   Taking  into  consideration
all these facts, we do not filed any error in the conclusion arrived  at  by
the High Court.  The said finding, therefore, needs no interference by  this
Court.
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                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                        Civil Appeal No.3410 of 2007

DHANNULAL AND OTHERS              .....Appellant(s)

                                   versus

GANESHRAM AND ANOTHER             .....Respondent(s)

                                    WITH

                        Civil Appeal No.3411 of 2007
GANESHRAM                               .....Appellant(s)

                                   versus

DHANNULAL AND OTHERS              .....Respondent(s)



                                  JUDGMENT



M. Y. EQBAL, J.

      Aggrieved by the judgment and order passed by the High  Court,  partly
dismissing  First  Appeal  No.92  of  2001,   both  the  plaintiff  and  the
defendant have filed  the  aforementioned  two  appeals.   While  confirming
judgment and decree, the High Court reversed the  finding  recorded  by  the
trial court on the issue of will executed by the testatrix.



2.    The plaintiff-Ganeshram, appellant in Civil Appeal  No.3411  of  2007,
filed suit for declaration, possession and damages in relation  to  the  two
suit houses described in Schedule A & B of the plaint, pleading  inter  alia
that the registered sale deed of 1987, executed by Phoolbasa  Bai  (original
defendant no.1, who died during the pendency  of  the  suit)  in  favour  of
defendant no.5 Mukesh Kumar Chourasia, which  relates  to  some  portion  of
suit house, be declared illegal, void and not binding on him.



3.    To understand factual matrix and issue involved in the case, we  would
like to reproduce here the pedigree table as submitted before us:

                                   Shivram
                               (Died in 1932)
 ____________________________________|_____________________________
|                                                             |
Sumitrabai (Daughter)(died in  1976)             Chhatrapati(Son)  (died  in
1945)
   Husband of Sumitra-Mangal Prasad   Kept-wife: Phulbasabai (def.no.1)
      (Died in 1954)                               |
      |                                      Mannulal (son)(
      |                                 (died unmarried on 14.4.1967)
______|___________________________
|                                |
Shyamlal (son)               Radha Bai (daughter)
(died in 1973)
|
_______|____________________________________________________
|                            |                           |
Ganeshram (son)        Laxmi Bai (daughter)  Ganga Bai (daughter)
Plaintiff


4.    The suit property was originally owned by Shivram who had  a  daughter
Sumitrabai  and  a  son  Chhatrapati.  The  plaintiff,   the   grandson   of
Sumitrabai, filed a  suit  for  declaration  of  ownership,  possession  and
damages in relation to the suit property against defendant nos.1 to 5.   The
plaintiff challenged the validity of the Will dated 18.08.1977 purported  to
have been executed by Phoolbasa Bai in favour of the  sons  of  her  brother
Gayaprasad, defendant nos.1-4. The plaintiff also  challenged  the  validity
of the sale deed purported to have been executed by Phoolbasa  Bai  in  1987
in favour of defendant no. 5 in relation to a portion of the suit property.




5.    The plaintiff alleged that Sumitrabai  (plaintiff's  grandmother)  had
become the owner of the suit property by adverse  possession  having  stayed
therein, after the death of her husband  Mangal,  with  her  father  Shivram
till his death in 1932 and till her own death in 1976.   Phoolbasa  Bai  was
alleged to have been the  mistress  and  not  the  legally  wedded  wife  of
Chhatrapati and their son was alleged to have died unmarried  and  issueless
in 1967.  The sale deed and the Will purported  to  have  been  executed  by
Phoolbasa Bai were alleged to be illegal.





6.    The suit was contested firstly by filing joint  written  statement  by
the original defendants namely Phoolbasa Bai and Gaya  Prasad  stating  that
after  the  death  of  Shiv  Ram   the  entire  property  was  succeeded  by
Chhatrapati (his only son) as Sumitrabai was a  married  daughter.   It  was
further pleaded  that  Phoolbasa  Bai,  being  the  lawful  wedded  wife  of
Chhatrapati, became the owner  of  the  suit  property  after  Chhatrapati's
death in 1945.  During the pendency of the suit, when  Phoolbasa  died,  she
was substituted by defendant nos.1 to 4, who  also  filed  separate  written
statement in addition to earlier written statement  filed  by  the  original
defendants.  Defendant no.5 also filed separate written  statement  claiming
to be the owner of the  portion  of  property  by  virtue  of  a  sale  deed
executed in his favour in 1987.



7.    The trial court  dismissed  the  civil  suit  holding  that  the  Will
executed by Phoolbasa in the year 1977 in favour of defendants  nos.1  to  4
is legal and the sale effected by her during the pendency of the civil  suit
in favour of defendant no.5 is  also  legal  and  valid.   The  trial  judge
recorded the finding that  Sumitra  Bai  had  not  perfected  her  title  by
adverse possession and the plaintiff could not establish that Phoolbasa  Bai
was a concubine of late  Chhatrapati.   The  trial  court  also  recorded  a
finding that  the  plaintiff  failed  to  establish  that  the  Will  was  a
fraudulent and fabricated document.



8.    Aggrieved by the judgment and decree of  the  trial  court,  plaintiff
moved the High Court preferring First Appeal, which was partly dismissed  by
the learned Single Judge of the High Court.  Although learned  Single  Judge
set aside the finding of the trial court on the issue  of  validity  of  the
Will on the ground that the Will was not proved as per law, but  upheld  the
sale deed executed by Phoolbasa  Bai  in  favour  of  defendant  no.5.   The
concluding  paragraphs  of  the  impugned  order  are,   therefore,   quoted
hereinbelow:


"In the facts and circumstances, the sale in favour of defendant no.5 was  a
valid sale and the same cannot be held to be illegal, void and  not  binding
against the plaintiff.  The arguments advanced  in  this  regard  cannot  be
accepted.


Now the question arises, what should be the legal position after  the  death
of Smt. Phoolbasa and her son namely Mannulal when it  has  been  held  that
the alleged will executed in  favour  of  defendants  nos.1  to  4  was  not
proved.  Certainly these properties were succeeded by her from  her  husband
or from her father-in-law, therefore, according to Section 15(2)(b)  of  the
Hindu Succesion Act, this shall devolve,  in  the  absence  of  any  son  or
daughter of the deceased (including the children of any predeceased  son  or
daughter) upon the heirs of her husband.  In this case, if we  look  to  the
pedigree set forth in the  plaint,  the  succeeding  heir  of  her  husband,
namely Chhatrapati, would be sister's daughter which finds place  as  serial
no.4 in Entry IV of Class II of Schedule.   When  Radha  Bai,  the  sister's
daughter is said to be alive on the date  of  succession  according  to  the
plaint allegations itself, then the plaintiff,  in  the  reversionary  right
will not get the ownership of the property.


In the result, the appeal is dismissed.  The judgment and decree  passed  by
the trial court are hereby confirmed with  the  aforesaid  modifications  in
the finding regard the 'Will'."


9.    Hence, present cross appeals filed by both  side  against  each  other
including purchaser-defendant no.5.  Defendants nos.1 to  4  have  preferred
Civil Appeal No.3410 of 2007 and the plaintiff has  preferred  Civil  Appeal
No.3411 of 2007.


10.   Mr. Naveen Prakash,  learned  counsel  appearing  for  the  plaintiff-
appellant in C.A. No.3411 of 2007 assailed the finding on  the  relationship
of Chhatrapati and Phoolbasa  Bai  as  husband  and  legally  married  wife.
Learned counsel submitted that no witness from the  side  of  defendant  has
been examined to prove the marriage  of  Phoolbasa  Bai  with   Chhatrapati.
Learned counsel further submitted that no finding has been recorded  by  the
Trial Court or the Appellate Court as to when  Chhatrapati  died.   However,
in course of argument, learned counsel does not deny that Phoolbasa Bai  was
living with the joint family when Chhatrapati was  alive  for  the  last  20
years, but there is no evidence of valid marriage.


11.   We are unable to accept the submissions made by  Mr.  Naveen  Prakash,
learned counsel appearing for  the  plaintiff-appellant.  Indisputably,  the
first wife of Chhatrapati  died  in  the  very  early  age  and  immediately
thereafter the original defendant No.1 Phoolbasa  Bai  started  living  with
Chhatrapati as his second wife.  Out of the wedlock  of  Phoolbasa  Bai  and
Chhatrapati, one son was born, whose name was Mannu Lal.  The  said  son  of
Chhatrapati and Phoolbasa Bai died unmarried.  It is  also  not  in  dispute
that  the original owner Shiv Ram had only one son namely,  Chhatrapati  and
one daughter Sumitrabai. Phoolbasa Bai died during the pendency of the  suit
in the year 1992.  The relationship of Chhatrapati  and  Phoolbasa  Bai  has
not been denied.  It has also not been denied  that  they  had  been  living
together as husband and wife in a joint family.


12.   In the fact of the case there is strong presumption in favour  of  the
validity of a marriage and the legitimacy of its child for the  reason  that
the relationship of Chhatrapati and Phoolbasa  Bai  are  recognized  by  all
persons concerned.



13.   In the case of A. Dinohamy vs. W.L. Balahamy, AIR 1927 PC 185, it  was
held that where a man and  woman  are  proved  to  have  lived  together  as
husband and wife, the law will  presume,  unless  the  contrary  is  clearly
proved, that they were living together in consequence of a  valid  marriage,
and not in a state of concubinage.  The Court observed as follows-

"The parties lived together for twenty years in the same  house,  and  eight
children were born to them. The  husband  during  his  life  recognized,  by
affectionate provisions, his  wife,  and  children,  The  evidence'  of  the
Registrar of the District shows that for a long course of years the  parties
were recognized as married citizens,  and  even  the  family  functions  and
ceremonies, such as, in particular,  the  reception  of  the  relations  and
other guests in the family house by Don Andris  and  Balahamy  as  host  and
hostess--all such functions were conducted on the footing  alone  that  they
were man and wife. No evidence whatsoever  is  afforded  of  repudiation  of
this relation by husband or wife or anybody."



14.   In the case of Gokal Chand vs. Parvin Kumari, AIR 1952  SC  231,  this
Court observed that continuous co-habitation of woman as  husband  and  wife
and their treatment as such for a number of years may raise the  presumption
of marriage, but the presumption which may be drawn from long  co-habitation
is rebuttable and if there are circumstances which weaken and  destroy  that
presumption, the Court cannot ignore them.



15.   It is well settled that the law presumes in  favour  of  marriage  and
against concubinage, when a man and woman have cohabited continuously for  a
long  time.   However,  the  presumption  can   be   rebutted   by   leading
unimpeachable evidence.  A heavy burden  lies  on  a  party,  who  seeks  to
deprive the relationship of legal origin. In the instant  case,  instead  of
adducing unimpeachable evidence by the plaintiff, a plea was taken that  the
defendant has failed to prove the fact that Phoolbasa Bai  was  the  legally
married wife of Chhatrapati.  The High Court, therefore, came to  a  correct
conclusion by recording  a  finding  that  Phoolbasa  Bai  was  the  legally
married wife of Chhatrapati.



16.   For the aforesaid reason, we do not find any merit in C.A. No.3411  of
2007.



17.   So far the validity  of  will  is  concerned,  the  High  Court  after
considering a catena of decisions came to the following conclusion:-

"26. If we apply the above law in the present matter it  would  appear  that
the attesting witnesses were not examined because they were  not  alive  and
will has been proved by only examining the scribe as P.W.3.  Though  it  has
been stated by the Scribe that he has drafted and  typed  the  will  on  the
instructions of the testatrix, but this fact appears  to  be  false  on  the
face of  the  document  itself;  There  are  many  suspicious  circumstances
appearing on the face of document which go to suggest that in fact,  nothing
was drafted or typed by the scribe on the  instructions  of  the  testatrix,
but a typed matter was placed before him for getting it  registered  showing
as the will of the testatrix. First of all, it would appear that though  the
will has ended in the very second sheet but  there  is  no  space  left  for
signature of the scribe  and  the  scribe  has  inserted  his  signature  in
between the last two lines by using an ink pen.  Secondly  it  appears  that
the complete date like 18.8.1977 was not typed in the second page  and  only
-8-1977 was typed and figures like 18 have  been  inserted  by  an  ink  pen
showing as the document was executed on 18.8.1977.  EX.D-72  Muktarnama  was
also written and signed on the said date  and  the  suspicious  circumstance
appears that when this document (Muktarnama) was being executed,  the  thumb
impression over the alleged will was also taken  by  the  beneficiaries  and
the document writer was shown to be the Scribe of the document  whereas,  in
fact, the document was not scribed by him.  Another  important  circumstance
is that the original defendant namely Smt. Phoolbasa had died  on  20.9.1992
after filing of her written statement on 14.7.1987. The  date  of  execution
of the will is 18.8.1977 but there is no whisper of her will in her  written
statement which she had filed  on  the  said  date.  Though  it  was  not  a
requirement of law, but under a normal human nature if she has  pleaded  the
detailed administration of property, vide para 9 of her  written  statement,
right from its acquisition by Shiv Ram to the date of filing  of  the  suit,
(please see para 9 of the written  statement).  She  should  have  mentioned
something about the will, if this alleged will was in her knowledge and  she
in fact had executed the same in favour of  defendant  no.  1  to  4.  These
circumstances which are highly suspicious, have not been removed or  cleared
by the beneficiaries of the will and only by examining the  scribe,  who  is
not an attesting witness and whose statement is  not  very  satisfactory  in
appreciation on all above points, particularly in  the  situation  when  the
testatrix was residing in  the  dominion  of  the  beneficiaries  and  their
father and was keeping a fiduciary relations with them, it  cannot  be  held
that a  due  execution  of  will  has  been  proved  by  the  defendants  in
accordance with the provisions of section 68  or  other  provisions  of  the
Evidence Act. The finding recorded by the court below that due execution  of
the will is proved, is not in accordance  with  law  and  the  same  is  set
aside. The will is held to be not proved in this case."



18.   It is evident from the findings recorded by  the  High  Court  in  the
paragraph referred  to  hereinabove  that  the  Will  suffers  from  serious
suspicious circumstances.   The  execution  of  a  document  does  not  mean
mechanical act of  signing  the  document  or  getting  it  signed,  but  an
intelligent appreciation of the contents of the document and signing  it  in
token of acceptance of those contents.



19.   Proof of a Will stands in a  higher  degree  in  comparison  to  other
documents.  There must be a clear evidence of  the  attesting  witnesses  or
other witnesses that the  contents  of  the  Will  were  read  over  to  the
executant and  he,  after  admitting  the  same  to  be  correct,  puts  his
signature in presence of the witnesses.  It  is  only  after  the  executant
puts his signature, the attesting witnesses shall put  their  signatures  in
the presence of the executant.



20.   In the instant case, the suspicious circumstance appears  to  be  that
when the Will was being executed, the  thumb  impression  over  the  alleged
Will was also taken by the beneficiaries and the document-writer  was  shown
to be scribe of the document, whereas the document was not scribed  by  him.
However, late Phoolbasa Bai although  filed  written  statement  before  her
death, but she did not whisper  anything  about  the  Will  in  the  written
statement.  Admittedly, the Will was allegedly executed in 1977 whereas  the
written statement was filed some time in 1987.   Taking  into  consideration
all these facts, we do not filed any error in the conclusion arrived  at  by
the High Court.  The said finding, therefore, needs no interference by  this
Court.



21.   For the reasons aforesaid, we do not find any merit in  these  appeals
which are accordingly dismissed.



                                        ..................................J.
                                                                (M.Y. Eqbal)



                                        ..................................J.
                                                               (Amitava Roy)
New Delhi,
April 08, 2015.