Will Deed – suit – seeking ejectment of his brother = whether the Courts below were right in decreeing the suit in favour of the respondent—plaintiff on the basis of the Will. It is not in dispute that the Will was executed by the testator in the year 1945 and it was drawn in the own handwriting of the executant himself. His handwriting was also duly proved by PW5—Nandlal Nagar, grandson-in-law of late Goverdhanlal, who used to correspond with him and thereby well acquainted with the handwriting of the testator. The argument that the Will lacks credibility because the idea of bringing it on record was an afterthought of the respondent—plaintiff, that too after filing the written statement, cannot be sustained for the reason that PW2—Tushar Akolekar, Clerk of Indore Paraspar Sahkari Bank, clearly deposed, supported by documentary evidence, that the respondent secured a loan from the Bank by pledging the Will in the year 1964 and since then the Will was kept in the bank. It is also on record that the said witness (PW2) was not cross-examined at the trial – Once the will is believed to be a genuine piece of document, there is no need for us to delve into the matter further. In such circumstances, we do not find any reason to disturb the concurrent findings recorded by the Courts below by reasoned judgments

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5887 OF 2009

MOHAN LAL … APPELLANT

VERSUS

NAND LAL … RESPONDENT

JUDGMENT

N.V. RAMANA, J.

This appeal by special leave is directed against the

judgment dated 29th November, 2006 passed by the High Court

of Madhya Pradesh, Bench at Indore in First Appeal No. 239 of

1996 whereby the High Court while confirming the judgment of

the trial Court, dismissed the appeal preferred by the appellant

with costs.

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2. In the year 1989, the respondent herein instituted a

Suit, before the District Judge, Indore seeking ejectment of his

brother—the appellant herein from the suit property and also

claiming mesne profits. The defendant—appellant herein

contested the Suit on the ground that he got half share in the

disputed property as it originally belonged to his late maternal

grandfather who was survived by only two daughters. On the

death of his grandfather his mother entered the succession and

he has been staying with his mother in the suit property.

Therefore the plaintiff—respondent cannot claim to be the sole

owner of the suit property and the Suit itself is misconceived.

Subsequently, the respondent—plaintiff amended the plaint to

the effect that during the lifetime of his grandfather, late

Goverdhanlal bequeathed the house property by executing a

Will on 9th September, 1945 in favour of the plaintiff, and after

the death of his grandfather in the year 1947, he has become

sole owner of the Suit property. Taking into account the Will

dated 9.9.1945, the trial Court decreed the Suit in favour of the

respondent—plaintiff. The aggrieved defendant—appellant

herein filed first appeal before the High Court. By the judgment

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impugned herein, the High Court confirmed the judgment of

the trial Court and dismissed his appeal. Hence, the appellant

is before us in this appeal assailing the findings of the Courts

below.

3. We have heard learned counsel for the parties and

carefully gone through the material on record.

4. The case of the appellant is that he is entitled to half

share in the disputed property being grandson of late

Goverdhanlal and his name was also mutated in the municipal

records. The Will in question was put in evidence by the

plaintiff by amending the plaint after the filing of written

statement by him. It was not even executed in accordance with

the provisions of Sections 61 and 63 of the Indian Succession

Act and therefore, it cannot be taken into account as a valid

and genuine one under the Evidence Act. Further argument on

behalf of the appellant is that late Goverdhanlal has two

surviving daughters, namely, Manibai (mother of the parties)

and Durgabai and after the death of Durgabai, her daughters

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Sarjubai and Rajubai also acquired rights on the disputed

property and therefore they are necessary parties to the Suit,

but none of these legal heirs of Late Goverdhanlal was made a

party to the Suit. Under these circumstances, the Courts below

could not have believed the Will to be a genuine document, but

by decreeing the Suit in favour of the plaintiff—respondent on

the basis of the said Will, both the Courts below have

committed an error or law.

5. On behalf of the respondent-plaintiff it was submitted

that at the time of execution of the Will on 9th September, 1945

the respondent—plaintiff alone was the male child in the family

and the Will was written by Late Goverdhanlal, who was an

advocate by profession, in his own handwriting. At the time of

death of Late Goverdhanlal, the respondent-plaintiff was about

13 years age and the appellant-defendant was born about 8

years after the death of Late Goverdhanlal. The appellant,

being younger brother of the respondent, was permitted to live

in the disputed property with an assurance from him that he

would vacate the house and hand over vacant possession of the

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house to the respondent when demanded. But the appellant

failed to keep his promise and dishonestly got his name

mutated in the records of property tax. The Courts below have

rightly decided the matter after assessing the witnesses and

taking the Will into consideration and therefore the appeal at

hand deserves to be dismissed.

6. Now the short question that arises for consideration of

this Court in this appeal is whether the Courts below were

right in decreeing the suit in favour of the respondent—plaintiff

on the basis of the Will.

7. It is not in dispute that the Will was executed by the

testator in the year 1945 and it was drawn in the own

handwriting of the executant himself. His handwriting was also

duly proved by PW5—Nandlal Nagar, grandson-in-law of late

Goverdhanlal, who used to correspond with him and thereby

well acquainted with the handwriting of the testator. The

argument that the Will lacks credibility because the idea of

bringing it on record was an afterthought of the respondent—

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plaintiff, that too after filing the written statement, cannot be

sustained for the reason that PW2—Tushar Akolekar, Clerk of

Indore Paraspar Sahkari Bank, clearly deposed, supported by

documentary evidence, that the respondent secured a loan

from the Bank by pledging the Will in the year 1964 and since

then the Will was kept in the bank. It is also on record that the

said witness (PW2) was not cross-examined at the trial. Going

by the material on record, we do not find any suspicious

circumstance surrounding the genuineness of the Will.

8. Merely taking the ground that the name of appellant

has also been mutated in the municipal record and thereby he

acquires right in the property, cannot be given effect to in the

absence of any cogent evidence in support of the claim. The

record shows that prior to the addition of his name in the

municipal records, when the respondent’s name alone was

there, the defendant—appellant had deposited the taxes in the

name of plaintiff—respondent, and there was no material on

record to show how the name of appellant—defendant was

added in the municipal records. In our opinion, the Courts

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below have thoroughly assessed the material evidences and

accordingly came to the right conclusion. Once the will is

believed to be a genuine piece of document, there is no need for

us to delve into the matter further. In such circumstances, we

do not find any reason to disturb the concurrent findings

recorded by the Courts below by reasoned judgments.

9. For all the aforesaid reasons, the appeal lacks merit

and is, therefore, dismissed with no order as to costs.

…………………………….J.

(N.V. RAMANA)

…………………………….J.

(S. ABDUL NAZEER)

NEW DELHI,

MARCH 21, 2018.