1. These two appeals have arisen from a common judgment and decree dated 31.1.2001 passed by XIII Additional District Judge, Varanasi (hereinafter referred to as "Lower Appellate Court") whereby civil appeal No.77 of 1996 was allowed completely and Civil Appeal No. 75 of 1996 was allowed partly.
2. Civil Appeal No.77 of 1996 has arisen from judgment and decree dated 29.3.1996 passed by IIIrd Additional Civil Judge, Junior Division, Varanasi whereby he decreed original suit no.975 of 1990. Lower Appellate Court has reversed Trial Court's decree and dismissed original suit no.975 of 1990.
3. Civil Appeal No.75 of 1996 has arisen from judgment and decree of the same date in Original Suit No.1370 of 1990, which was dismissed by Trial Court but Lower Appellate Court has allowed appeal partly, and decreed the suit to the extent of cancelling gift deed dated 26.11.1988 but with respect to injunction, the suit has been dismissed.
4. Original Suit No.975 of 1990 (hereinafter referred to as "first suit") was instituted by Smt. Champa Devi wife of Sri Shiv Nath impleading Rama son of Late Bhagelu and Shiv Murat, Shri Nath and Lalaji, all sons of late Bhagelu alleging that Araji No.731, area 1 acre 30 decimal situate at Village Goppur, Pargana Katehar, Tehsil and District Varanasi was initially owned by Smt. Basanti Devi, wife of Bhagelu, who executed a registered gift deed dated 26.11.1988 in favour of plaintiff Champa Devi, and also handed over possession thereof on 26.11.1988. The plaintiff therefore, is owner in possession of property in dispute and defendants have no concern therewith but are threatening to dispossess plaintiff, therefore, injunction was sought restraining defendants from interfering in possession of plaintiff.
5. Original Suit No.1370 of 1990 (hereinafter referred to as "second suit") was instituted by defendants of first suit impleading Champa Devi as defendant no.1 and her husband Shiv Nath as defendant no.2, alleging that property in dispute belong to Smt. Basanti Devi, which she bequeathed to plaintiffs and defendant no.2 of second suit, vide registered Will dated 18.11.1989, pursuant whereto names of plaintiffs and defendant no.2 of second suit have also been entered into Khasra and Khatauni. The gift deed set up by defendant no.1(Champa Devi) in first suit is forged and fictitious, therefore, it should be declared illegal and be revoked. The defendant no.1 be restrained from interfering in the possession of plaintiffs of second suit.
6. It is admitted by all the parties that Smt. Basanti Devi died on 14.4.1990.
7. The Trial Court formulated 10 issues in first suit and 8 issues in second suit. Issues no.1, 2 and 3 of first suit and issues no.1,2 and 4 of second suit, relevant in these appeals, read as under:
First suit ^^1- D;k okfnuh okn&xzLr lEifRr dh rugk ekfyd dkfct gS\ tfj;s jftLVMZ 'kqnk nku&i= u foLrk clUrh nsoh c&gd okfnuh gS\ 2- D;k mDr jftLVMZ 'kqnk nku&i= xyr xyr gS\ ;fn gka rks izHkkoA 3- D;k clUrh nsoh us okn&xzLr lEifRr dk iathd`r olh;rukek izfroknhx.k o f'koukFk ds gd esa fnukad 18-11-89 bZ0 dks rgjhj fd;k\ ;fn gka rks izHkko\** English Translation by the Court:
"1. Whether the lady plaintiff is the sole owner and in possession over the property in suit through registered gift-deed executed by Basanti Devi in favour of plaintiff?
2.Whether the aforesaid registered gift-deed is false. If so, its effect?
3.Whether Basanti Devi had executed a registered will on 18.11.98 in favour of Defendants and Shivnath in respect of the property in suit. If so, its effect?"
Second suit ^^1- D;k fookfnr c['khukek fnukad 26-11-88 okni= dh /kkjk 8 esa of.kZr rF;ksa ds vk/kkj ij ealw[k gksus ;ksX; gS\ 2- D;k okn i= esa of.kZr rF;ksa ds vk/kkj ij oknh] izfroknh x.k ds fo:) LFkk;h fu"ks/kkKk ikus dk vf/kdkjh gS\ 4- D;k fookfnr tk;nkn clUrh nsoh ds uke ls la;qDr lEifRr ls fy;k x;k gS vFkok mldh futh dekbZ dh gS\** English Translation by the Court.
"1. Whether the disputed gift-deed dated 26.11.88 is liable to be cancelled on the basis of the facts described in para 8 of the Plaint?
2.Whether the plaintiff is entitled to secure permanent injunction against the Defendants on the basis of the facts mentioned in the plaint?
4. Whether the disputed property has been taken in the name of Basanti Devi from the joint property or acquired through her personal earnings?"
8. All these issues were taken together by Trial Court since all are interconnected. Admittedly, Basanti Devi herself was never examined in the Court below.
9. The registered gift deed as well as registered Will, both had photographs of the executant, which were different, i.e. of different women. No expert opinion with respect to thumb impression of alleged executor was brought on record. Sri Krishna Kumar and Ram Nagina Mishra were the persons named as witnesses to gift deed dated 26.11.1988. The Court found, that aforesaid gift deed, executed on 26.11.1988, was registered, as a matter of fact, on 3.9.1990 i.e. after the death of Smt. Basanti Devi.
10. The plaintiff of first suit appeared in witness box and identified photograph of late Basanti Devi on the gift deed. With regard to photograph on Will, she refused to identify it. She, however did not identify thumb impressions thereon. She said that photograph of Basanti Devi was taken at the place where document was registered. One of the two witnesses to gift deed i.e. Krishna Kumar was also examined as P.W.2. He verified execution of gift deed as also thumb impression of Basanti Devi thereon. He said that Ram Nagina Mishra also signed as witness, in his presence.
11. The Will dated 18.11.1989 was witnessed by Panna Lal and Baij Nath Prasad. One of the two witnesses i.e. Baij Nath Prasad was examined as DW-2. Baij Nath Prasad identified photograph of Basanti Devi but stated that this photograph was given to Advocate Lalta Prasad by Shiv Nath and that too on the date of registration of Will. He was told by Shiv Nath that she is Basanti Devi, since he was not acquainted with Basanti Devi earlier. Other witnesses also proved Will as per discussion made by Trial Court. It held that plaintiff of first suit has proved gift deed while Will could not be proved. Since property in dispute was self acquired property of Basanti Devi, it was validly gifted to Smt. Champa Devi. Accordingly he decreed first suit and dismissed second suit.
12. In first suit, defendants while contesting it, pleaded that Smt. Basanti Devi has not executed any gift deed at all. The defendants family was joint family and Sri Shiv Nath, husband of Smt. Basanti Devi, died about 25 years back i.e. some time in the year 1965. From the joint family income, some property was purchased in the name of mother and some in the name of the father i.e. Basanti Devi and Shiv Nath respectively. Entire family held possession of such property, i.e. Arazi No. 731 as joint Hindu property, yet to avoid any future complication in the matter, Smt. Basanti Devi, mother of defendants, executed registered will on 18.11.1989 in their favour which is first and last will. She died on 14.04.1990, whereafter, defendants' names have been mutated in revenue records.
13. The Trial Court held that the disputed property was not joint Hindu property but owned by Smt. Basanti Devi. Will was not proved, but plaintiff, Champa Devi, has been able to prove 'Gift Deed' and therefore, she is owner of the property pursuant to the rights she has acquired under the aforesaid Gift Deed.
14 The Lower Appellate Court while reversing findings of Trial Court, has held, that property in dispute was joint Hindu family property. The will was proved while the Gift Deed, registered after death of Smt. Basanti Devi, was a nullity and therefore reversed Trial Court's findings.
15. Substantial questions of law which have arisen in the matter require adjudication by this Court are as under :-
i. Whether Lower Appellate Court in reversing findings of Trial Court with regard to issue whether property in dispute was self acquired property of Smt. Basanti Devi or joint family property has committed manifest error of law since there was no evidence to support findings of Lower Appellate Court.
ii. Whether gift deed can be held validly registered after the death of its executor?
iii. Whether there is any presumption that immoveable property of Hindu family will be joint family property unless proved otherwise?
iv. Whether Will in this case has been proved in accordance with law?
16. Interestingly, both the parties have relied on two documents allegedly executed by Smt. Basanti Devi.
17. First, I take up questions 1 and 3 together.
18. Smt. Champa Devi, one of the daughters-in-law of Smt. Basanti Devi has based her claim on Gift Deed which allegedly has been executed by Smt. Basanti Devi. She has fairly admitted the property in dispute to be that of Smt. Basanti Devi. Four sons of Smt. Basanti Devi (except the husband of Smt. Basanti Devi) have pleaded that property in dispute is joint family property, but, they have also based their claim on a will executed by Smt. Basanti Devi. The question of execution of will by Smt. Basanti Devi could not have arisen unless property belong to her. The concept of Joint Hindu Family Property flows from the male head of family and its branches and not from the female. No valid explanation has come forward from the plaintiff of second suit to justify execution of alleged will by Smt. Basanti Devi if the property did not belong to her but was a joint family property. Even if the will would not have been there, after death of Smt. Basanti Devi, intestate, the property would have devolved equally upon all the sons and the husband, if alive, at that time. Therefore, plaintiffs of second Suit have not got any additional right under the will.
19. Be that as it may, once it is clear that both the parties have relied on individual documents executed by Smt. Basanti Devi treating property of her own, heavy onus lies upon persons who pleaded that the property did not belong to Basanti Devi of her own, but, was a joint family property.
20. In India and particularly among Hindus, the family bonds are not only very strong but they have given right to a society who believe in a joint family going to the extent of even the concept of village community. In the concept of property, there have been three layers, i.e., Patriarchal Family, Joint Family and Village Community. The patriarchal family is headed by father and consists of his offsprings. The joint family may include within itself the members, related to each other, though not having common ancestors and goes beyond the family flowing from father himself. It is said that unlike England, where the concept of ownership, as a rule, is single, independent and unrestricted, and it may be joint, but the presumption is to the contrary. It may be restricted but only in special instances and under special provisions. The situations in India is totally different. Here the joint ownership is normally the rule and may be presumed to succeed until contrary is proved. If an individual holds property in severalty, in the next generation, it will relapse into a stand of joint-tenancy. A Hindu may start with nothing and make a self acquired fortune by dint of his own labour, capacity and merits and he is the absolute owner of estate but in a couple of generations his offspring would ramify in a joint family, like a banian tree which also stands as a single shoot. If the property is free from hands of its acquirer, it will become fettered in the hands of his heirs.
21. The "patriarchal family" may be defined as a group of natural or adoptive descendants, held together by subjection to the eldest living ascendant, father, grand-father, great-grandfather. Whatever be a formal prescription of law, the head of such a group is always in practice, despotic; and he is the object of respect, if not always of affection, which is probably seated deeper than any positive institution. Manu says, "three persons, a wife, a son and a slave, are declared by law to have in general no wealth exclusively their own; the wealth which they may earn is regularly acquired for the man to whom they belong." Narada says, "he is of age and independent, in case his parents be dead; during their lifetime he is dependent, even though he be grown old."
22. The "joint family" is normally a transition form from "patriarchal family" at the death of common ancestors or head of house. If the family chose to continue united, the eldest son would be the natural head. The former one was head of family by natural authority, the later other can only be so by a delegated authority. He is primus but inter pares. An undivided Hindu family thus is ordinarily joined not only in estate but in food and worship. The presumption, therefore, is that members of a Hindu family are living in a state of union unless contrary is established. This presumption however varies inasmuch as it is stronger in case of real brother than in case of cousin and farther one go, from the founder of family, the presumption becomes weaker and weaker. However, there is no presumption that a family, because it is joint, possesses joint property. Under Mitakshara Law, possession of property is not necessary requisite for constitution of a joint family, though where persons live together, joint in food and worship, it is difficult to conceive of their possessing no property whatever, such as ordinary household articles which they would enjoy in common.
23. The intention to break joint family by effecting partition in respect of joint family property has always been considered with great respect, where amicably and peacefully, intacting love and affection, the members of joint family have settled their rights mutually. It can be given effect, orally, as also in writing.
24. In Appovier Vs. Ramasubba Aiyan (1866) 11 MIA 75 Lord Westbury took a view that the partition covers both, a division of right and a division of property. This is also reiterated in Girja Bai Vs. Sadashiv Dhundiraj (1916) 43 IA 151. When the members of undivided family agreed amongst themselves either with respect to a particular property or with reference to entire joint estate that it shall thenceforth be the subject of ownership in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject matter so agreed to be dealt with; and in the estate, each member has thenceforth a definite and certain share which he may claim the right to receive and to enjoy in severalty although the property itself has not been actually severed and divided.
25. In Raghubir Vs. Moti (1913) 35 All 41 PC and Anurago Kuer Vs. Darshan Raut, AIR 1938 PC 65 the partition by agreement was explained by observing, that, if there be a conversion of joint-tenancy of an undivided family into a tenancy of common of the members of that undivided family, the undivided family becomes a divided family with reference to the property, i.e., the subject to agreement and that is a separation in interest and in right, although not immediately followed by a de facto actual division of subject matter. This may, at any time, be claimed by virtue of the separate right. This was also held so in Amrit Rao Vs. Mukundrao (1919) 15 Nag LR 165 PC.
26. The "family arrangements" also stand and enjoy same status. It is an agreement arrived by members of family, either by compromise doubtful or disputed rights, or by preserving a family property or by avoiding litigation for the peace and security of family or saving its honour. A severance of joint status may result, not only from an agreement between the parties but from any act or transaction which has the effect of defining their shares in the estate though it may not partition the estate. Among all the coparceners, now it has been held, that, an agreement between all of them is not essential so as to result in disruption of joint status though it is required for the actual division and distribution of property, held jointly. A definite and unambiguous indication of intention by one member to separate himself from family and to enjoy his share in severalty will amount to a division in status. (See, Ram Narain Sahu Vs. Musammat Makhana ILR (1939) All. 680 (PC) and Puttrangamma and Ors., Vs. M.S. Ranganna and Ors. AIR 1968 SC 1018).
27. Further whenever there is a partition, the presumption is that it was a complete one both as to parties and property. There is no presumption that any property was excluded from partition. On the contrary, it has been held that burden lies upon him who alleges such exclusion to establish his assertion.
28. Now in the light of above general count of joint family, the matter need be examined whether it would apply to the case in hand.
29. There is no pleading on the part of defendants of Ist Suit that Smt. Basanti Devi had no 'Stridhan'. No material has come on record that she did not possess adequate wealth to purchase the property in dispute, herself. The will in question, it is sught to be explained that it was executed to avoid any future complication and thus, it suggests, that it is more of a compromise deal between the parties to avoid any future dispute. I am of the opinion that if it would have been a settlement for family arrangement, one would have gone to have it instead of a will. Ordinarily, a person executes a will in respect of the property owned by himself/herself. If one intends to show otherwise, heavy onus lie upon him to show that. The defendants of the Ist Suit are also claiming their rights under the will, which is fortified from their case set up in the IInd Suit. That being so, there was no occasion for lower appellate court to hold that the executor of will made the same in respect of a property which did not belong to her though no evidence adduced to hold it. Moreover, while holding that it was a joint family property, again the Court has relied on conjectures than evidence. This presumption on the part of lower appellate court, infact has made a new case, though it was never pleaded. Rather, I find that the case set up by defendants in both the suits was contradictory. Therefore, heavy onus lies upon them to prove such fact. The person who pleaded a fact, has to prove it by adducing evidence. The lower appellate court has placed a negative burden upon plaintiff in Ist Suit, in respect of a fact pleaded by other and that too, in contradiction to their stand in IInd Suit.
30. I find that lower appellate court has seen this question from reverse angle which is not a correct approach in the matter. Unless it is proved that property constituted a part of Joint Hindu Family Property, there was no question to shift onus on the other side to prove otherwise.
31. In this regard Lower Appellate court has categorically observed that it has not been stated anywhere in the plaint of first suit as to wherefrom Basanti Devi had income so as to acquire disputed property as herself acquired property. In the plaint of second suit it was pleaded that disputed property was a joint property though purchased in the name of Smt. Basanti Devi and was entered into in the name of Basanti Devi sometime in 1960 while five sons of Bhagelu separated in 1971 which shows that family was joint till 1971. Unfortunately, Lower Appellate Court, has not referred to any evidence to show that property was purchased from the income of joint family and was not self acquired property of Smt. Basanti Devi. In the present case it was not a property of a Hindu male head of the family, which would have become a subject matter of Joint Hindu family property with the birth of male child/children but here property admittedly belonged to Smt. Basanti Devi. Those who pleaded otherwise to dispute her individual right thereon were under an obligation to adduce evidence and prove otherwise. There is no presumption at all that property of Hindu female would be a joint stock family property unless proved otherwise. The Lower Appellate Court, however, has proceeded as if it was incumbent upon the person who pleads that the property was self acquired property of Smt. Basanti Devi to prove, despite the fact that for decades together, i.e. from 1960 and onwards, admittedly property was in the name of Smt. Basanti Devi and after her death in 1990, on the basis of alleged Will, executed by her, treating it to be her own self acquired property, names of plaintiffs of second suit were substituted. Meaning thereby, they were also claiming rights on the property of Basanti Devi treating it to have succeeded thereupon pursuant to a Will which she allegedly had executed and which fact would had been possible only if property is self acquired by Basanti Devi.
32. In fact the conduct of plaintiff of second suit, from the very beginning was inconsistent and self contradictory. They treated disputed property as that belonging to Basanti Devi as her own property and not a part and parcel of joint property, hence succeeded by them i.e. plaintiffs of second suit only by virtue of Will executed by her and not by intestate succession. But when contested, gift deed, set up by plaintiff - Ist Suit, they took a new stand that the property was joint family property and did not belong to Smt. Basanti Devi, of her own. That being so, when they pleaded otherwise, onus lay upon them to prove, failing which, they had to fail. In my view, Lower Appellate Court has committed a patent error of law in reversing findings of Trial Court by holding that property in dispute was not owned by Smt. Basanti Devi, but was a joint family property and Benami of Smt. Basanti Devi. The Lower Appellate Court has misconstrued and misplaced burden of proof hence committed error by reaching a totally perverse and misplaced conclusion. These issues are accordingly answered against appellants and in favour of plaintiffs of first suit and defendant no.2 of second suit i.e. appellant in second appeal no.505 of 2001.
33. Issues no. 1 and 3 are therefore, answered in favour of plaintiff of suit no. 1 and defendants of suit no. 2.
34. Now, I come to Second issue. This court in Kalawati Vs. Board of Revenue 1989 ALJ 316 has held that registration of a Gift Deed after death of the executor is patently illegal and would confer no right upon the beneficiary. In paragraph 15 of the judgment Court has said:-
"15. The date of the gift deed is 28.3.1972. One month later the petitioner kalawati died and after about a fortnight the gift deed as produced before this Court suggests that it was registered on 16.5.1972. Could it be registered? The answer to this lies under the Registration Act, 1908. Under Section 34 of the Registration Act, aforesaid, no document shall be registered unless the person executing the document appears before the registering authority. A dispensation is given to the person executing the document thaqt he or she may appoint an agent or a representative and an assignee for carrying out the purpose of registration. No agent had been appointed on behalf of Kalawati. She never appeared before the registering officer. There can be no issue on this as registration was after her death. The gift deed then becomes suspicious. Section 35 implies that if the person who executed the document is dead, the registering officer shall refuse to register the document. In the present case the person who executed the document, Kalawati died."
35. No other authority has been placed before the Court, wherein any view otherwise has been taken. I find no reason not to follow the above view. The question no. 2 therefore, is answered against plaintiff of suit no. 1 i.e. defendant no. 1 of suit no. 2, and in favour of defendants of suit no. 1 and plaintiffs of suit no. 2.
36. Now I come to the last i.e. question no. 4.
37. The mere fact that Will is registered will make no difference since under law, 'Will' is not compulsorily registrable instrument. 'Will' has to be proved by satisfying the requirement of Section 63 of Act, 1925.
38. In the context of 'Will', particularly when it was a registered document, though not compulsorily registrable under the statute, the Privy Council in Gopal Das and another Vs. Tri Thakurji and others, AIR 1943 PC 83, referring to Section 60 of Registration Act, 1908 (hereinafter referred to as the "Act, 1908") and Section 63 of Act, 1925, said, that even if endorsement of Registrar made under Section 60(2) of Act, 1908 is proved, it remains to be shown that the person admitting execution before Registrar was the same person, i.e., the executor. The registration of 'Will' does not create any presumption of its genuineness, which is to be proved independently and statement of the Registrar is only a piece of evidence which is to be assessed to judge how far it proves that the execution of 'Will' is in accordance with Section 63 of Act, 1925. This view has been referred to and reiterated in Karri Nookaraju Vs. Putra Venkatarao and others, AIR 1974 AP 13; Labh Singh and others Vs. Piara Singh, AIR 1984 P&H 270; and, Baru Ram and others Vs. Smt. Kishani Devi, 1993(1) Shim.L.C. 80.
39. The Apex Court had the occasion to look into this aspect in H. Venkatachala Iyengar Vs. B.N. Thimmajamma, AIR 1959 SC 443 and said that one of the important features which distinguishes 'Will' from other documents is that the 'Will' speaks from the date of death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his 'Will' or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last 'Will' and testament of the departed testator. The Court thus held, the propounder of 'Will' must prove, (1) that the 'Will' was signed by testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free will; (2) when the evidence adduced in support of the 'Will' is disinterested, satisfactory and sufficient to prove the sound and disposing state of testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of propounder; and, (3) if a 'Will' is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion. The Court said that onus on the propounder can be taken to be discharged on proof of the essential facts indicated therein.
40. In Bhagwan Kaur Vs. Kartar Kaur, 1994 SCC (5) 135 it was observed that decision on due execution of will, strictly speaking, is not primarily arriving at a finding of fact, as it has an admixture of law due to the specific requirements of Section 63 of Act, 1925 towards due execution. A method is provided in which a 'Will' shall be duly executed, i.e., it shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the 'Will' or has seen some other person sign the 'Will', in the presence and on direction of testator, or has received from the testator, a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the 'Will' in presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of the attestation shall be necessary. In the matter of proof of a 'Will' Section 68 of Act, 1872 enjoins that a document, if required by law to be attested, shall not be used as evidence until one attesting witness has been called for the purpose proving its execution.
41. Then again the matter came to be considered in Niranjan Umeshchandra Joshi Vs. Mrudula Jyoti Rao and others, AIR 2007 SC 614 and the Court said:
"33. The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. (See Madhukar D. Shende Vs. Tarabai Shedage 2002(1) SCR 132 and Sridevi and others Vs. Jayaraja Shetty and others, AIR 2005 SC 780). Subject to above, proof of will does not ordinarily differ from that of proving any other document."
42. In Bharpur Singh and others Vs. Shamsher Singh, AIR 2009 SC 1766 it was held that a Will must be proved in terms of provisions of Section 63(c) of Act, 1925. Unlike other documents the Court also must satisfy its conscience before it passes an order holding a Will genuine and valid. Even animus attestandi is necessary ingredient for proving the attestation. If a Will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and defendant. An adversarial proceeding in such cases becomes a matter of Court's conscience and propounder of the Will has to remove all suspicious circumstances to satisfy that Will was duly executed by testator wherefor cogent and convincing explanation in respect of suspicious circumstances shrouding the making of 'Will' must be offered.
43. In the present case one out of two witnesses to Will has been examined but he himself admits that he has not seen executor of Will who signed the same. He has also not proved signature of another witness. The Will in question therefore, admittedly has not been proved in accordance with the procedure prescribed in law.
44. Thus question no. 4 is answered against plaintiff of second suit.
45. In view of above, it cannot be doubted that neither there existed a valid gift deed which would confer any right upon the plaintiff - Ist Suit, nor any valid will existed which would confer any right in favour of the plaintiff - IInd Suit. Property in question therefore would stand devolved, after death of Smt. Basanti Devi, in accordance with rules of Succession applicable to parties in these matters. Both the suits therefore stand dismissed, subject to rights derived by the parties by way of succession, in accordance with applicable law, after the death of Smt. Basanti Devi.
46. The judgments of the Courts below, taking another view, are set aside, accordingly. Both appeals are decided in the manner as above.
Date :- 06.05.2014 A.Verma/KA