Misc. Appeal No. 675 of 2000. Case: Smt. Sushila Yadav Vs Yadvendra Singh Yadav (dead) through LRs. High Court of Madhya Pradesh (India)
| Case Number | Misc. Appeal No. 675 of 2000 |
| Counsel | For Appellant: Sanjay Dwivedi, Adv. and For Respondents: Vinod Kumar Sharma, Adv. |
| Judges | M. K. Mudgal, J. |
| Issue | Succession Act (39 of 1925) - Sections 63, 276 |
| Citation | AIR 2014 MP 5 |
| Judgement Date | October 22, 2013 |
| Court | High Court of Madhya Pradesh (India) |
Judgment:
Mudgal, J.
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The appellants have filed this appeal under Section 299 of the Indian Succession Act being aggrieved by the order dated 6.9.2000 passed by V Additional District Judge, Gwalior in Probate Case No.15-A/1999 (Old Case No.33/1996) rejecting the probate application filed by the appellants under Section 276 of the Act and holding that the alleged 'Will' has not been properly proved. In this appeal, the appellants are referred to as "applicants" and respondents as 'objectors'.
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The admitted facts have come on record that Tejram who was an officer in the telephone department was the husband of the deceased Phoolwati who had three sons Vimlendra Singh, Yadvendra Singh and Raghvendra Singh. The appellants/applicants are the legal heirs of the deceased Vimlendra. The disputed plot was purchased during life time of Tej Ram in the name of his wife Phoolwati and a house was constructed on it. Phoolwati was housewife and has no independent source of income.
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The facts, in brief, of the probate application are that the deceased Phoolwati during her life time executed a notarized 'Will' in favour of the applicants pertaining to the house of her ownership situated at M-1 Gandhinagar Gwalior bearing House No.22/447 (New No.26/422) on 1.10.1995 and it being her only and last Will. The applicants are entitled to get probate certificate (letter of administration) in their favour. Smt. Phoolwati died on 20.10.1995, hence, the probate application was filed before the Court below as stated earlier.
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Objector Yadvendra Singh Yadav, son of the deceased Phoolwati denying the averments of the said application, claimed that on 1.10.1995 deceased Phoolwati had not executed any Will in favour of the applicants and she executed the Wills on 8.6.1993 and 7.7.1990 and without getting those Wills cancelled or making mention about the earlier Wills, the Will dated 1.10.1995 was got executed illegally. The objector further alleged that the Will dated 1.10.1995 is a fake and fabricated document. He claimed that initially, the plot was purchased by his father in the name of his mother who was having no independent source of income. The alleged Will dated 1.10.1995 was got executed by the applicants fabricatedly in their favour as his mother was not at all in a position to execute any such document being ill, she was in the state of unconsciousness. Hence, the probate application filed by the applicants on the basis of the said Will is liable to be rejected.
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The learned trial Court framed the four issues and recording evidence of both the parties and having considered the recorded evidence, rejected the application for probate filed by the applicants holding that the applicants have failed to prove that the 'Will' dated 1.10.1995 was executed by deceased/Phoolwati in their favour.
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The following issues that arise for consideration in this appeal are that:
(i). Whether, the alleged Will dated 1.10.1995 was executed by Phoolwati voluntarily or at the behest of the applicants?
(ii). Whether, the findings of the court below are not based on proper reasonings?
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Learned counsel for the appellants submitted that the findings of the trial are not based on proper appreciation of the evidence as the alleged Will Ex.P-3 has been proved by the attesting witnesses Dr. K.S.Tomar (PW-4) and Bharat Singh Bhadoria (PW-5). However, the statements of the said witnesses have been disbelieved by the learned trial Court without any sufficient and cogent reasons. As per requirements of Section 68 of the Evidence Act and Section 63 of the Indian Succession Act, the execution of Will should be proved by at least one attesting witness. The counsel further urged that the appellants have successfully proved the execution of the Will Ex.P-3 even though the trial Court has found the Will not proved. The counsel further put forth the argument that it was the case of probate wherein there was no need for inquiry into the title of the deceased Phoolwati to make the Will. The findings given in this regard by the trial Court are totally without jurisdiction and the said findings have no significance. The counsel further pleaded that a few letters were written by Yadvendra Singh to his father Tejram in his life time. The said letters show incordial relationship between Yadvendra Singh and his father Tejram because of which the deceased Phoolwati executed the Will Ex.P-3 in favour of the wife of deceased Vimlendra Singh and grandsons Ravi Yadav and Somendra Singh. But the learned trial Court did not consider the aforesaid facts properly, therefore, the impugned judgment of the trial court be set aside and the probate be granted in favour of the appellants.
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Controverting the submissions made by the appellants the learned counsel for the respondent urged that the findings of the learned trial court are well reasoned and based on proper appreciation of evidence. The counsel further pleaded that the alleged Will Ex.P-3 is a fake and fabricated document as it has not been explained by the appellants that as by whom the Ex.P-3 was got typed and drafted. The statements of both the persons i.e. typist and drafter have not been got recorded and why they have been put behind the curtains. The counsel further submitted that it has come on record in the statement of (PW-1) Susheela, (PW-2) Ravi Yadav and (PW-3) Somendra Yadav that the deceased Phoolwati had a bank account and she used to sign for the transactions with the bank. Why has the deceased put the thumb impression on the Ex.P-3 when she was able to sign. The counsel further...
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