Background
The respondent-plaintiff filed the suit for possession of the suit property and mesne profit on the ground that one Hastimal executed a will in his favour and after the death of Hastimal, all the rights qua the immovable property got transferred to him. It was further indicated that according to the Will of the testator, Sukniya Bai can reside in the suit property till her death. It was further claimed that the plaintiff accepted the request of Sukniya Bai to keep the defendant in the house. After her death, the plaintiff sought the defendant to vacate the premises, who promised to hand over its possession but did not vacate it. Consequently, the plaintiff revoked the defendant’s license and gave notice dated 07.07.1992, which was refused by the defendant. The plaintiff, therefore, sought relief of possession of the disputed house and claimed mesne profit at Rs. 500/- per month.
The appellant-defendant claimed that no Will was executed by Hastimal in favour of the plaintiff. It was further claimed that it was a forged document and not a Will as it was not signed by the deceased. He also denied the allegations about Sukniya Bai keeping the defendant in the house with the permission of the plaintiff. It was also claimed that the defendant possessed the house as an owner. It was further stated that Sukniya Bai executed a Will in the defendant’s favour and got it registered. Further, Hastimal’s deed was stated to be a gift deed and inadmissible in evidence for want of proper stamp duty and registration. The plaintiff filed replication reasserting the facts stated in the plaint and denied the allegations made by the defendant.
After hearing the parties, the trial court concluded that Hastimal’s will cannot be termed as a gift deed merely because the word ‘Bakhshish’ has been used as there was no demise at present. It was further held that the Will was duly proved by producing PW2- Footermal, the scribe and PW3- Jeevraj, who was attesting witness and minor contradictions in their statements cannot make the document fraudulent. Consequently, it was held that Hastimal’s will was legally executed. It was further held that Sukniya Bai was not adverse and that she had no right to execute the Will in favour of the defendant. It was further held that the defendant’s possession was that of a licensee. Further, the claim of Rs.500/- per month as mesne profit was found to be justified as the suit property was a three-storey house. Accordingly, the trial court decreed the suit and directed the handing over of vacant possession of the house to the plaintiff along with mesne profit till the date of filing suit and pendente lite mesne profit.
Aggrieved by the trial court’s decree, the appellant herein filed the present petition along with an application under Order XLI Rule 27 CPC seeking permission to produce three documents as additional evidence. He also filed another application under Order XLI Rule 27 CPC seeking to produce a report of a Handwriting Expert.
Petitioner’s Arguments
Mr Alkesh Agarwal, the learned counsel for the appellant submitted that the trial court committed a grave error in decreeing the suit filed by the plaintiff. He submitted that the findings recorded by the trial court were cursory in nature and that the pleas raised and the evidence put on record have not been properly appreciated, resulting in the court reaching a wrong conclusion. It was further submitted that Hastimal’s will was not disclosed for a long period of time. It was submitted that since Hastimal’s will started by indicating the document as ‘Bakshinama’, which means a gift deed and as the same was unregistered, the document was inadmissible in evidence and as such, the trial court committed a grave error in accepting the document as a Will. He also submitted that the suit was barred by limitation, as the same should have been filed within the time when Sukniya Bai refused to deliver the possession of the suit property. On the application filed under Order XLI Rule 27 CPC, it was submitted that the appellant could not lay hands on the documents during the pendency of the suit. Regarding the second application filed under Order XLI Rule 27 CPC, it was submitted that as the respondent raised objections about lack of expert evidence pertaining to the signatures on the Will and the sale-deed sought to be produced, the appellant has obtained expert opinion and as such the same be also taken on record. It was prayed that the judgment and decree passed by the trial court deserve to be quashed and set aside. The learned counsel relied on several judgements in support of his contentions.
Respondent’s Arguments
Mr Arvind Samdariya, the learned counsel for the respondent vehemently opposed the submissions. He submitted that the applications filed under Order XLI Rule 27 deserve to be rejected because the Sale deed which was sought to be produced was not an admitted document to compare the signatures thereon with the Will. He further contended that there was a gap of eight years between the execution of the purported sale deed and the execution of the Will. Also, he submitted that the report of the handwriting expert sought to be produced was of absolutely no value. It was submitted that the claim of the appellant that the suit was barred by limitation had no substance. It was further emphasized that the use of words in the document were not relevant to decide the nature of the document, rather the contents and terms and conditions of the document should have been considered. which are relevant for determining the nature of the document. He further submitted that the Will was executed way back in the year 1976 and the statements were recorded in the year 1998 i.e.after the passage of over 22 years and, therefore, minor contradictions due to time lapse were bound to be there and therefore the validity of the will cannot be questioned. Furthermore, it was submitted that the defendant was in possession of the property without any right, title or interest and as such, the judgment impugned does not call for any interference. He also relied upon several judgements in support of his contentions.
Court’s Observations
The Court considered the submissions made by learned counsel for the parties and have perused the record of the case as well as the record of the trial court. The Court perused the will and observed that the intention can certainly be spelt out that the executant wanted that his property be dealt with in a particular manner after his death and hence it was a will and not a gift deed. Further that although the word ‘Bakhshinama’ which means gift or prize, has been used repeatedly in the document the mere use of this word cannot be a determining factor about the nature of the document.
The Court referred to Mathai Samuel’s case of the Hon’ble Supreme Court which dealt with a similar issue and analysed the document in question and said that it was apparent that the document was only a Will and the same cannot be termed as a gift despite the use of the term ‘Bakhsinama’ at more than one place in the document. So, the Court held that the determination made by the trial court concerning the nature of the document and its admissibility cannot be faulted.
While dealing with the applications filed by the appellant under Order XLI Rule 27 CPC, the Court held that the attempt was not bona fide and was just made to frustrate the claims of the plaintiff and therefore rejected the applications.
Court’s Decision
After considering the aforesaid discussion and perusing the record, the Court held that the findings recorded by the trial court on various issues were based on the evidence available on record and the consideration cannot be termed as perverse. The Court, therefore, held that the decision of the trial court, therefore, did not call for interference. The Court found no substance in the appeal and therefore dismissed it.
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