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TMI Blog1997 (7) TMI 702X X X X Extracts X X X X X X X X Extracts X X X X ..... t in possession. On 15-12-1949, Avodhya Prasad executed a document and expressed his desire that he would construct a Dharmshala for the travellars. In that document, he also expressed his desire to construct a Dharmshala during his life time and after his death, he appointed Trustees, namely; Suba Saheb, Bahu Rameshwar Dayalji Mehrotra, Advocate, Sahu Jwala Prasad Ji Barohiwale, Sahu Bhagchand Ji Barohiwale and Sahu Lal Jai Narayan Ji Jain Ridoli Wale Saraf. He had also made arrangement for the management of the Dharmshala. This document dated 15-12-1949 was in the shape of will. It was signed by witnesses and was got registered. It was the last will. He did not execute any will thereafter. He started the work of construction of Dharmshala during his life time. He also constructed six shops towards north in order to have income for the management of the Dharmshala. Thereafter he died on 1st November, 1957 and the construction of the whole of the Dharmshala could not be completed. The original defendant Harbo Bai lived with Ajudhya Prasad and he used to maintain her. He had made an arrangement in the will that after his death, she will get Rs. 20/- p.m. during her life time from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liable to be dismissed for non-joinder. The suit for mere declaration under Section 8 was not maintainable. The suit was filed beyond time as provided under Section 11 of the M. P. Public Trust Act. The provisions of M. P. Public Trust Act were not applicable at the time of execution of the Will dated 16-12-1949, as the Act was not in force. The Will dated 16-12-1949 had been cancelled by subsequent document 13-11-1956. Even the trusteesdid not accept theTrust. Ajudhya Prasad was the sole owner of the property in dispute. Pyarc Lal had two sons--Panna Lal and Ajudhya Prasad. The property belonged to Panna Lal, who had adopted Mool Chand. Mool Chand died during the life time of Panna Lal, leaving his widow i.e. the defendant and daughter Longa Bai. As the defendant was the Pardanaseen lady, the entire work was being looked alterby Ajudhya Prasad. The defendant and her daughter Longa Bai were the sole heirs and legal representatives of Panna Lal. Ajudhya Prasad had no right to execute the Will and that is why he concealed that truth. The allegations of the plaintiff that the property belonged to some one and from whom it went to Premchand. plaintiff's Falser and he handed over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lleged by the defendant was the last Will. Ajudhya Prasad created a Trust under the aforesaid document and as such the Registrar committed an illegality in not allowing the application and registering the Trust. The learned counsel for the respondent urged that the Will executed in the year 1949 stood cancelled by the subsequent Will. The plea of title of Ajudhya Prasad was not involved before the Registrar. There was no Trust as claimed by the plaintiff. The plaintiff had no right in the suit property. The suit was rightly dismissed. Both the parties have claimed their right through Ajudhya Prasad. It is however unfortunate that there is nothing in the plaint to show that the plaintiff claimed any right in Ajudhya Prasad except that according to the plaint allegations, he was entrusted with the work of construction of Dharmshala byPremchand. Before entering upon the discussion relating to the argument advanced by the learned Counsel, it is necessary to dispose of two applications under Order 6, Rule 17. C.P.C. Both the applications LA. No. 1957/97 and LA. No. 1951/97 have been moved by the plaintiff-appellants. Both the applications have been opposed by the learned counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel for the appellants because the evidence is already on record and the ground for amendment is that the amendment has been necessitated in order to bring the evidence in conformity with the evidence. Consequently, the application is allowed. Let amendment be incorporated. Now, I come to the merits of the case. The position that has now emerged after the amendment of the plaint is that Pyare Lal had two sons Panna Lal and Ajudhya Prasad. Panna Lal died in the year 1929. He died issueless. Of course, the defendant has pleaded that he had adopted one Mool Chand. Mool Chand died during the life time of Panna Lal leaving his widow i.e. the defendant Harbo Bai. According to the plaintiff, after the death of Panna Lal, the property went to Ajudhya Prasad and his name was mutated. It has been claimed by him that Ajud,hya Pcasad wanted to construct the Dharmshala and in this view he executed a document on 15-12-1949, which is Will. Though this document on 15-12-1949, he also created a trust, This document has been challenged by the defiant-respondent (sic) initially the existence of this document and secondly it has been contended that it has been cancelled by a subsequent document. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceased was separate at the time of his death from his coparceners, the whole of his property, howsoever acquired, will pass to his heirs by succession according to the order given in Article 43, A perusal of Article 43 shows that the order of succession among supindas has been mentioned therein in 1-3 i.e. son, grandson (son's son) and great-grandson and admittedly Panna Lal had no son, grandson and great-grandson at the time of his death. The other heirs mentioned in this Article are widow, daughter, daughter's son and father. None of these heirs were alive at the time of his death. There is no dispute that Ajudhya Prasad was the brother of Panna Lal and as such in accordance with the Order of Succession, Ajudhya Prasad became the heir of the deceased Panna Lal and there eannot be any quarrel in this regard. It is also evident from the record that Ajudhya Prasad had been dealing with the properly of Panna Lal. The case of the respondent is that the property went to Harbo Bai, which was dealt with by Ajudhya Prasad, as there was no male member in the family, I have already shown above that according to the Order of Succession, it has Ajudhya Prasad who succeeded the propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that there should be evidence on record with respect to the proof of the two Wills in question, in accordance with the provisions of Sections 68 to 71 of the Evidence Act as well as Section 63 of the Indian Succession Act. The argument advanced by the learned Counsel for the appellants is that so far as Will daied 15-12-1949 is concerned, it was executed in the year 1949 when the Indian Succession Act was not applied lo Gwalior. He contended that Section 63 of the Indian Succession Act provides that the attesting witness is required to be called for proving a Will in term of Section 68 of the Evidence Act. He urged that Indian Succession Act was applied in Gwalior State on 3-3-1951 vide Act No. 3 of 1951 and such document is Ex, P/22, i.e. the said Will was executed at the time when Indian Succession Act was not in force. The provision of old Hindu Law under which the power of executinga Will was recognised has to be applied. In thisconnection,he referred principles of Hindu Law by Mulla. The learned counsel for the respondent contended that from the evidence on record, it is apparent that Ajudhya Prasad died on 4-11-1957 when the Indian Succession Act was applicable in M.P. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1927, must be in writing signed by the testator and attested by at least two witnesses as provided by Section 63 of the Indian Succession Act, 1925. In this view of the matter, even if the Indian Succession Act was applied in the year 1951, retrospective effect was given in the Act itself to all the Wills and as such every will made after the 1st January, 1927 was required to be in writing signed by the testator and attested by atleasl two witnesses as provided by Section 63 of the Indian Succession Act, 1925. In this view of the matter I find myself in agreement with the learned counsel for the respondent that the will did require to be in writing, signed by the testator and attested by at least two witnesses as provided by Section 63 of the Indian Succession Act, 1925. It has now to be seen as to how far the plaintiffs have been able to prove this Will. Of course, the contention of the learned counsel for the plaintiffs-appellants is that the Will had been admitted in pleadings and this Court specifically observed as mentioned above in the earlier part that it was not so. However, if it is proved from record that the Will has been admitted otherwise then in pleadings, the ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . I shall deal with the question as to whether this document, i.e. the will has been proved in accordance with law or not hereinafter while considering the argument to the effect that the will has not been proved because one of the attesting witnesses who has been examined has not proved the document. For the present, it is sufficient to mention that the witness after hearing the entire document which was read over to him by the learned Commissioner at the time of its examination stated that it was the same document which he had scribed. The statement of this witness does not appear to have been shattered in cross-examination. The learned counsel for the respondent urged that he has specifically stated that one of the witnesses was alive and he was examined by the plaintiffs at the fag-end of the case and he did not support the plaintiff, hence the document has not been proved. PW 9 Nemi Chandra Jain is an attesting witness of the Will (Ex.P/22). He has stated that Ajudhya Prasad died about 35-40 years back and he was known to him. He used to live at Etawah as well as at Bhind. He had no knowledge as to what property was included in the will dated 15-12-1949. He staled that in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by this witness and it was signed by other two witnesses as stated by him. The statement of this witness, to my mind can certainly be taken under these circumstances of the case to be covered within the meaning of other evidence as mentioned in Section 71 of the Indian Evidence Act. I have already referred to the decision of the Privy Council wherein it was laid down that the registration proceedings can be relied upon under this section to prove the due execution or attestation. Thus to my mind, the document i.e. the Will dated 15-12-1949 stood proved. Apart from what has been stated above, there is sufficient material on record to show that this document has been specifically admitted by the defendant herself. I cannot go into the question as to whether the document was admitted in the pleading or not in view of the findings of this Court referred to above. However, it can certainly be shown from the record that even in statements, the document has been admitted. DW 3 Jai Narayan, who has been examined by the defendant, has categorically stated that he knew Ajudhya Prasad. In the year 1949 he had created a Trust by Will in which he was named as a Trustee. Bhag Chand, Rameshwar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpletion of the dharamshala. Hence how the dharamshala will be constructed after his death and how it will be run, a provision was made therein. However, it has been specifically mentioned therein that so long as he was alive, he will construct the dharamshala and the money received from the income of the property will be spent by him in it. He has also mentioned that he will have full right of ownership in that regard. Thereafter in Clause 2 he made certain persons as trustees and other provisions. It is, therefore, to be seen as to whether this document created the Trust in the present! or it amounted to a will which was to take effect after his death. For the creation of a Trust, there are certain requirements, which have been provided in Section 6 of the Indian Trusts Act. The essential ingredients for creation of valid trust under this Section are (i) an intention on his part to create thereby a trust; (ii) the purposes of the trust; (iii) the beneficiary; and (iv) the Trust property and transfer the trust property to the trustee. On the touch stone of the essential ingredients of valid trust mentioned above, it has to be found as to how far the document in question i.e. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not only the valid trust came into existence, but even Ajudhya Prasad started construction of dharamshala. It has been pointed out that the learned trial Court while deciding issue No. 11 has also referred to Ex.D/16, Ex.P/ X, Ex.P/Y and Ex.P/Z and other documents i.e. Ex./P3 an application submitted by Ajudhya Prasad for seeking permission. Ex. P/4, a map was also submitted. Ex.P/8 i.e. the application was moved for exemption of Tax. Ex.P/9 is the front elevation of Dharamshaia. On the basis of these documents, it has been contended that the valid trust was created. I after giving anxious consideration, find myself unable to agree with the learned counsel that these documents too go to prove that a trust was created by the said document (Ex.P/22). These documents to my mind simply go to show that the executant started construction of dharamshala in fulfilment of his desire. It cannot be said to be sufficient to hold that a trust was created through the document in question in presenti. The next question which calls for determination is as to what is the nature of document (Ex.P/22). I have already stated in the earlier part of this Judgement that this document purports to be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal document has not been brought on record and it is claimed that it has been lost. Secondary evidence was permitted and the defendant-respondent filed a certified copy (Ex.D/ 1). I have already made reference also that this Court while disposing of the earlier appeal had remarked that this document too was not proved in accordance with law. I may reiterate the observations of this Court with respect to this document. It was observed that : 23. xxxxx an incomplete evidence about due execution of the will dated 13-11-1956 was produced. Thus it was the duty of the defendant-re spondentvso have proved1 this document in accordance with law as pointed out by this Court in the earlier judgment. In order to prove this document, the defendant had examined Onkar Nath Choubcy (DW 2), the alleged attesting witness. It has been contended by the learned counsel for the defendant-respondent that he has proved the execution of the Will. The secondary evidence of the Will was permitted by the trial Court vide its ordendated 9-4-1973. The learned counsel further contended that the statement of this witness has not been challenged by the plaintiffs. Healso contended that the other witness L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture of such other person, and each of whom has signed the instrument in the presgnce of the executant: but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary. Under the aforesaid provision, it is necessary that the person relying upon the document must establish that the executant had signed or put thumb impression before the attesting witnesses and the attesting witnesses must sign in the presence of the executant. The portion which is relevant in the present case has been underlined by me above in the definition of the word 'attested.' There is nothing in the statement of this witness to show that both the attesting witnesses had signed in the presence of the executant. There is nothing to show that the executant had signed before the witnesses. Consequently, the essential ingredients of the proof of the attestation is missing. There is another defect in the statement of this witness. In para 3 he has stated that the Registrar had gone to the house of Ajudhya Prasad for registration of the document and the document was read over by the Registrar to Ajudhya P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attesting witness. Rattier he is the person who is vitally interested in the property because he claimed, himself to be the son-in-law of Harbo Bai. The learned counsel for the defendant-respondent as said earlier also referred to the statement of DW 6 Jhaman Lal Sharma, who was examined after the remand of the case. He had made a publication (Ex. DMA) in his newspaper 'Hamari Aawaj' and he stated that through that publication, Ajudhya Prasad got the will dated 15-12-1949 cancelled. Neither the statement nor the publ ication can be said to be sufficient proof of the document in question. Thus, the evidence on record relating to the proof of the document alleged tohave been executed on 13-11-1956 is not sufficient to say that ihc document has been proved in accordance with law. Apart from what has been stated above, even if for the sake of argument it is accepted, though the document has not been provedds said earlier, in that case too, it is for the respondent to emove all the suspicious circumstances in order 10 show that the document was bonafide executed by the executant. The learned counsel for the plaintiff-appellant submitted certain suspicious circumstances relati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The ground given by the witnesses for Ajudhya Prasad making thumb impression is that on account of old age of Ajudhya Prasad, he could not sign and as such he had put his thumb impression. DW 4 Laturi Lal has stated in this connection that at the time when the Will was executed in the year 1956, Ajudhya Prasad was sufficient weak and was not ill. He specifically stated that Ajudhya Prasad was a literate person. He had seen him reading and writing. He was able to recognise his signatures. He further stated that the Tehsildar asked Ajudhya Prasad as to whether he would sign whereupon he stated that he had tremor in his hand and as such he will not sign. A perusal of Ex. D/l, i.e. the document alleged to have been executed by Ajudhya Prasad showed that it is a registered document, but there is nothing about the endorsement of the Registrar to show that he was not in a position to sign and hence thumb impression was taken. Thus, ii is also a suspicious circumstance to show as to how the literate person, who could have signed, did not sign on the document, but put his thumb impression. The statement of Laturi Lal (DW 4) does not inspire confidence and he is the beneficiary as pointed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on 14-11-1956. It shows an important suspicious circumstance against the execution of the Will as claimed by the defendant. There is yet another circumstance on record and it also goes to show that the document dated 13-11 -56 must have been manoeuvcred by Latur Lal, who ultimately was to be benefited. If we peruse (Ex. P/22), which was executed by Ajudhya Prasad and which had been proved and established to have been executed by him, we find that in the body of that document, he had specifically mentioned that he had no issue nor his brother had any issue. It was further mentioned that his brother had not taken any person in adoption. In para 6. he had mentioned that one Harbo Bai, Widow of Mool Chand was living with him, who was being maintained by him and as such after his death, he had made provision of payment of Rs. 20/- p.m. to Harbo Bai from the income of dharmshala. It, therefore, goes to show that Harbo Bai was not claimed by him to be his brother's adopted son's wife. Rather he had mentioned that she was living with him and was being maintained by him. There is specific averment in this document that PannaLa! had not taken any person in adoption. The defenda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Ajudhya Prasad had got executed a mukhtarnama in the name of Bhagchand. It, therefore, suggests that Daya Shankar used to scribe the document of Ajudhya Prasad. There does not appear any reason as to why on the next day he would have got executed document from another scribe. It, therefore, constitutes another suspicious circumstance against the execution of the will. It may also be mentioned that according to the material on record Ex. P/2, which is claimed to be mukhtarnama in favour of Laluri Lal though as said earlier, was originally executed in favour of Bhagchand, appears to have been registered in the Office of the Sub-Registrar on 12-1 1-56. Thus, if a person was fit enough to go to the office of the Sub-Registrar on 12-11-56 to gel the document executed, asclaimed by the defendant. it does not appeal to reason as to why Sub-Registrar was called at home on 14-11-56 and the document is claimed to have been written on 13-11-56. There is document on record Ex. P/I6C which purports to be an application on behalf of Harbo Bai addressed Adhyakash Nagarpalika, Bhind. In this document, she had prayed that her name be entered in place of her father-in-law, Ajudhya Prasad, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by him as 'Dharmshala Panna Lal Ajudhya Prasad1. The Public Trust was created under this document. It has to be taken that it came into effect after the death of the executor i.e. Ajudhya Prasad. I. therefore, hold accordingly. Before parting with the order, I may mention the technical argument of the learned counsel for thecontcsting-rcspondcnt. It has been contended that the present suit has been filed for setting aside the order of the Registrar and as such a notice under Section 80 I.P.C. was necessary. Reliance has been placed upon AJR 1977 SC 148. The contention of the learned counsel for the appellants is that this point was:never raised either in the trial Court or in the appellate Court when the first appeal was preferred. It cannot now be raised for the first time in this Court. The learned counsel also argued that the notice is for the benefit of the State and the Registrar and both of them were absent. They did not put in their appearance. As such, this plea stands waived. It is pertinent to mention here that this argument has been raised by the learned counsel, appearing for the private party. It is settled law that a notice can he waived by the conduct of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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