B.N. FIROSversusSTATE OF KERALA & ORS.

68                       [2018]
              SUPREME COURT     3 S.C.R. 68
                             REPORTS                        [2018] 3 S.C.R.


A                                 B.N. FIROS
                                        v.
                         STATE OF KERALA & ORS.
                         (Civil Appeal No. 79 of 2008)
B
                               MARCH 27, 2018
                      [RANJAN GOGOI AND
                 MOHAN M. SHANTANAGOUDAR, JJ.]
            Information Technology Act, 2000 – s. 70(1) – Protected
C    system – Issuance of Notification dated 27th December, 2002 u/
     s.70(1) – Declaration that the computer, computer system and
     computer network specified in the Schedule to the Notification to
     be “protected systems” – Challenge to, by the appellant on the
     ground that copyright in the e-governance programme developed
D    by them for the Government vested in the appellant u/s. 17 of the
     1957 Act and the Notification was an infringement of the said right
     – Case of the State that the appellant developed the software for
     Microsoft which had undertaken to make available the same to the
     State through 4th respondent-government agency, free of cost – High
     Court held that the Intellectual Property Rights in the software vested
E    in the Government so as to entitle it to declare the same as a
     protected system u/s. 70(1) – Interference with – Held: Not called
     for – The power of declaration of a “protected system” may invade
     a copyright which may be vested in a private owner – However,
     such a situation is taken care of by the provisions contained in s.
F    2(k) of the 1957 Act which defines “Government work” and s.17(d)
     of the 1957 Act which vests in the Government, copyright in a
     government work as defined by s. 2(k) – Provisions of s.70(1) has
     to be read conjointly with s. 2(k) and s. 17 of the 1957 Act, in order
     to give due effect to the related provisions of two different enactments
     made by the legislature – Furthermore, appellant admitted/pleaded
G    that it was entrusted by Microsoft to develop the software for which
     it received due consideration from Microsoft, if that be so, appellant
     would not be entitled to claim copyright in the application software
     u/s.17(a) of the 1957 Act – Copyright Act, 1957 – ss. 17(a), 2(k).

H
                                     68
           B.N. FIROS v. STATE OF KERALA & ORS.                        69


      Dismissing the appeal, the Court                                 A
      HELD : 1.1 The High Court in the impugned order has
correctly, held that the provisions of Section 70(1) of the
Information Technology Act, 2000 has to be read conjointly with
Section 2(k) and Section 17 of the Copyright Act, 1957 in order
to give due effect to the related provisions of two different          B
enactments made by the legislature. Section 70(1) of the I.T. Act
as in force at the relevant point of time (at the time when the
matter was under consideration in the High Court) or even after
its amendment in 2009 bars access to a person to the system
declared as a “protected system” without authorization from the
Appropriate Government. Plainly read, the power of declaration         C
of a “protected system” may invade a copyright which may be
vested in a private owner. However, such a situation is taken
care of by the provisions contained in Section 2(k) of the Copyright
Act, 1957 which defines “Government work” and Section 17(d)
of the copyright Act, 1957 which vests in the Government,              D
copyright in a government work as defined by Section 2(k). The
balance is struck by Section 17 between copyright pertaining to
any other person and copyright vested in the Government in a
“government work”. Section 70 of the I.T. Act, therefore, cannot
be construed independent of the provisions of the Copyright Act;
if Section 70 of the I.T. Act has to be read in conjunction with       E
Section 2(k) and Section 17 of the Copyright Act 1957 the rigours
that would control the operation of Section 70(1) of the I.T. Act
are clearly manifested. [Para 19] [75-G-H; 76-A-D]
      1.2 The amendment to Section 70(1) of the I.T. Act brought
in by Act No. 10 of 2009 makes the power of declaration of             F
protected system even more stringent by further circumscribing
the power of declaration of protected system only in respect of a
computer resource which directly or indirectly affects the facility
of Critical Information Infrastructure, which is a defined
expression in the I.T. Act. The amendment is not a first time          G
introduction of parameters to govern the exercise of power under
Section 70(1) of the I.T. Act. Rather, it is an attempt to
circumscribe the power even further than what was prevailing
under the pre-amended law, by narrowing down the ambit of

                                                                       H
70             SUPREME COURT REPORTS                       [2018] 3 S.C.R.


A    “government work” so far as it is relatable to the facility of Critical
     Information Infrastructure, as defined under the Act. [Para 20]
     [76-E-G]
           1.3 The challenge made by the appellant before the High
     Court insofar as the Notification dated 27th December, 2002 is
B    concerned was founded on a claim of copyright in the FRIENDS
     application software. The said claim, ex facie , is not tenable in
     the light of the provisions contained in Section 17(a) of the
     Copyright Act and the admitted/pleaded case of the appellant in
     the writ petition to the effect that it was entrusted by Microsoft
     to develop the software for which it received due consideration
C    from Microsoft. If that be so, on the appellant’s own pleadings in
     the writ petition, it would not be entitled to claim copyright in the
     FRIENDS application software under Section 17(a) of the
     Copyright Act. Whether under clause 10 (under the head “Role
     of Government of Kerala”) of the Memorandum of Understanding
D    between Total Solution Providers for E-Governance and
     Government of Kerala, the State would have a claim of copyright
     in view of Section 17(a) of the Copyright Act is altogether a
     different question which has no bearing on the claim of the
     appellant to copyright in the FRIENDS application software. In
     the present proceedings, the only point for adjudication is the
E    claim of the appellant, as the developer of the application software,
     to be the first author of the said work so as to vest in him/it a
     copyright under the provisions of Section 17 of the Copyright
     Act, 1957, a claim which is palpably unfounded both on the basis
     of the provisions of Section 17(a) of the Copyright Act and under
F    clause 10 (under the head “Role of Government of Kerala”) of
     the Memorandum of Understanding between Total Solution
     Providers for E-Governance and Government of Kerala. There
     is no ground for interference with the orders passed by the High
     Court. [Para 22] [76-H; 77-A-F]
G            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 79 of
     2008.
           From the Judgment and Order dated 24.05.2006 of the High Court
     of Judicature of Kerala at Ernakulam in W.A. No.685 of 2004.
           R. Basant, Sr. Advs, A. Karthik, V.K. Sidharthan, Advs for the
H    Appellant.
            B.N. FIROS v. STATE OF KERALA & ORS.                               71


      Pallav Sisodia, Sr. Adv, G. Prakash, Jishnu M.L., Mrs. Priyanka          A
Prakash, Mrs. Beena Prakash, Vijay Shankar V.L., P. V. Dinesh,
Ms. Avani Bansal, Ms. Sindhu T.P., Ms. Arushi Singh, Bineesh K.,
Rajendra Beniwal, Advs for the Respondents.
      The Judgment of the Court was delivered by
                                                                               B
       RANJAN GOGOI, J. 1. The appellant–B.N. Firos – proprietor
of Comtech IT Solutions, Thiruvananthapuram had filed a Writ Petition
challenging a Notification dated 27th December, 2002 issued under Section
70(1) of the Information Technology Act, 2000 (hereinafter referred to
as “I.T. Act”) declaring the computer, computer system and computer
network specified in the Schedule to the Notification to be “protected         C
systems” under the I.T. Act. The vires of Section 70 of the I.T. Act
itself was also challenged. The Writ Petition was dismissed. The said
order of dismissal has been affirmed in writ appeal by a Division Bench
of the High Court and the review filed there against has also been
dismissed. Aggrieved, this appeal(s) has been filed.                           D
      2. The brief facts that will be required to be noticed are as follows:
      In the writ/original petition filed by the appellant before the High
Court it is stated that the appellant is the proprietor of Comtech IT
Solutions, an Information Technology concern which is a member of
                                                                               E
Microsoft Developer Forum, a professional group of developers
technically supported and guided by the Microsoft Corporation (India)
Pvt. Ltd.
       3. In the year 1999, the 1st respondent – State of Kerala through
the 4th respondent – Centre for Development of Imaging Technology              F
(C-DIT), Thiruvanthapuram, a Total Solution Provider (TSP), had
conceptualized a single window multiple agency bill collection system.
The project was called “FRIENDS” (i.e. Fast, Reliable Instant, Efficient,
Network for Disbursement of Services). According to the appellant –
writ petitioner, Microsoft Corporation of India (Pvt.) ltd. (hereinafter
referred to as “Microsoft”) had offered to provide the Application             G
Software and System Software free of cost for the pilot project. The
appellant – writ petitioner, being a member of the Microsoft Developer’s
Forum, was required by Microsoft to carry out the system study and to
develop the pilot project for the “FRIENDS” project.
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72            SUPREME COURT REPORTS                           [2018] 3 S.C.R.


A           4. After completion of the preliminary work, Microsoft placed
     orders with the appellant on 23rd May, 2000 pursuant to which the
     Software developed by the appellant was handed over to the 4 th
     respondent and the Software was implemented as a pilot project at the
     first FRIENDS Centre at Palayam, Thiruvanthapuram in June 2000. As
     the said project was a success, the 1st respondent decided to extend the
B
     same to its 13 District Centres.
           5. By a communication dated 31st January, 2001, the 4th respondent
     informed the appellant that the FRIENDS project, for which the appellant
     had developed the Application Software free of cost as part of the
     developers forum agreement with Microsoft, has been successful and
C    the Government has decided to establish FRIENDS Integrated Citizens
     Service Centres in all the other 13 districts of the State for which the
     respondent No.4 would like to associate with the appellant for
     customization of the FRIENDS application software. Pursuant thereto
     an Agreement cum Memorandum of Understanding dated 19th February,
D    2001 was entered into between the appellant and the 4th respondent.
            6. According to the appellant as the 4th respondent was attempting
     to transfer some of the essentials of the FRIENDS application software
     to another concern, namely, M/s Stanhop Technology, a criminal
     proceeding was instituted by the appellant against said M/s Stanhop
     Technology. Apprehending further attempts, an application for registration
E
     of his copyright in the FRIENDS application software was also filed by
     the appellant before the Registrar of Copyrights, New Delhi.
            7. On the other hand, the 4th respondent had filed a suit i.e. O.S.
     No.8 of 2002 before the District Court, Thiruvananthapuram seeking a
     declaration that the 4th respondent is the exclusive owner of the copyright
F    and the sole owner of the Intellectual Property Rights of the FRIENDS
     application software. In view of the aforesaid suit for infringement filed
     by the 4th respondent, the Registrar of Copyright rejected the appellant’s
     application for registration of copyright in the “FRIENDS” software
     leaving the matter to be agitated after the decision in the civil suit.
G          8. The 4th respondent had also instituted a criminal case against
     the appellant for infringement of the application software.
            9. While the said proceedings were pending, the State Government
     had issued a Notification dated 27th December, 2002 under Section 70(1)
     of the I.T. Act leading to the writ proceedings in question wherein the
H    impugned orders have been passed by the High Court.
             B.N. FIROS v. STATE OF KERALA & ORS.                                 73
                      [RANJAN GOGOI, J.]

       10. Before the High Court the appellant had founded his claim to           A
the reliefs sought primarily on the ground that the copyright in FRIENDS
application software had vested in the appellant under Section 17 of the
Copyright Act, 1957 and the Notification dated 27th December, 2002
issued under Section 70(1) of the I.T. Act was an infringement of the
said right. The challenge to the vires of Section 70 of the I.T. Act was
                                                                                  B
founded on the basis of excessive delegation of the legislative power
inasmuch as, according to the appellant, the power of declaration as a
“protected system” was unbridled, unguided and uncanalized.
       11. The High Court negatived the challenge made by holding that
the provisions of Section 2(k) of the Copyright Act, 1957 which defines
“Government work” and Section 17(d) of the same Act on one hand and               C
Section 70 of the I.T. Act has to be construed harmoniously. According
to the High Court, if the said provisions are to be read and construed
harmoniously the power of declaration of a “protected system” would
be only in respect of “Government work”, the copyright in which of the
Government is acknowledged by Section 17(d) of the Copyright Act,                 D
1957. It is on the aforesaid broad basis that the contention of the appellant
as regards invalidity of Section 70 of the I.T. Act was repelled.
       12. Insofar as the challenge to the Notification dated 27/12/2002
under Section 70(1) of the I.T. Act, based on a claim of a copyright, is
concerned the High Court took into account the fact that the registration         E
of copyright sought by the appellant had been negatived by the Registrar
of Copyright and that the civil suit in this regard filed by the 4th respondent
was pending. The High Court further took the view that if according to
the appellant he was the first owner of the copyright, as claimed, nothing
prevented him from instituting a suit for infringement under Sections 60
and 61 of the Copyright Act, 1957 or from resorting to arbitration which          F
is contemplated by clause 7 of the agreement dated 19th February, 2001.
      13. The High Court, however, went a little further and took into
account clause 10 (under the head “Role of Government of Kerala”) of
the Memorandum of Understanding between Total Solution Providers
for E-Governance and Government of Kerala. The said clause 10 reads               G
as under:
       “10. Departmental Task Force will monitor the actual
       implementation ofhte project vis a vis the milestones set by the
       TSP
                                                                                  H
74            SUPREME COURT REPORTS                            [2018] 3 S.C.R.


A          Intellectual Property Rights of the system developed by all the
           TSPs and Departments shall vest in the Government of Kerala.
           Government of Kerala will be free to deploy the same system or
           with modification in any of the Government/Semi Government/
           Quasi Government Department/ Organization.”
B           The High Court held that the 4th respondent was a government
     agency and the Government had created the above agency as a Total
     Solution provider for developing software for the Government. The High
     Court further held that the 4th respondent was bound by the above clause
     and the appellant who undertook technical support by executing an
     agreement with the 4th respondent was also bound by the above clause
C    10. The IPR copyright in respect of “FRIENDS” software therefore
     vests in the government and there is no clause in the agreement between
     the appellant and the 4th respondent to show that the 4th respondent has
     assigned the IPR right to the appellant. The High Court, accordingly,
     held that the Intellectual Property Rights in the software vested in the
D    Government so as to entitle it to declare the same as a “protected system”
     under Section 70(1) of the I.T. Act.
           14. We have heard the learned counsels for the parties.
           15. Shri R. Basant, learned Senior Counsel appearing for the
     appellant has basically reiterated the arguments advanced before the
E    High Court additionally reinforced by the amendments made to Section
     70 of the I.T. Act which enables the exercise of the power to declare
     any computer resource as a “protected system” only if the same directly
     or indirectly affects the facility of Critical Information Infrastructure
     which has been defined by the Explanation to Section 70(1) of the I.T.
F    Act as:
           “Explanation: For the purposes of this section , “Critical Information
           Infrastructure” means the computer resource, the incapacitation
           or destruction of which, shall have debilitating impact on national
           security, economy, public health or safety.”
G          16. Shri Basant has submitted that in clear distinction to what had
     been introduced by the Amendment (Act No.10 of 2009) the power
     under the erstwhile Section 70(1) of the I.T. Act to declare any computer,
     computer system or computer network to be a protected system was
     uncanalized and unguided delegation of legislative power. The learned
H
            B.N. FIROS v. STATE OF KERALA & ORS.                                75
                     [RANJAN GOGOI, J.]

counsel has submitted that the Amendment brought in by Act No. 10 of            A
2009 reinforces the contention of the appellant and vindicates the
constitutional fragility of Section 70(1) of the I.T. Act as it then existed.
       17. Shri Basant has further submitted that from the materials on
record there is no manner of doubt that the appellant had on its/his own
developed the software and, therefore, under the provisions of the              B
Copyright Act, 1957 the appellant must be acknowledged to be the first
owner of the copyright. Incidentally, the computer programmes, tables
and compilations including computer databases have been included in
the definition of “literary work” under Section 2(o) of the Copyright Act,
1957 with effect from 10th May, 1995.
                                                                                C
       18. Shri Pallav Sisodia, learned Senior Counsel appearing for the
respondent – State has contested the arguments advanced and has
submitted that, as rightly held by the High Court, Section 70 of the I.T.
Act has to be read along with Section 2(k) and Section 17 of the Copyright
Act, 1957 in which event the power of declaration of “protected system”
would be available within clearly circumscribed limits and would not            D
suffer from any excessive delegation. So far as the claim of copyright is
concerned, Shri Sisodia has submitted that the appellant had developed
the software for Microsoft which had undertaken to make available the
same to the first respondent through the 4th respondent free of cost.
The invoice raised by the appellant on Microsoft in this regard shows           E
payment of remuneration by Microsoft to the appellant. Therefore, under
Section 17(a) of the Copyright Act, 1957 Microsoft is the first owner of
the copyright. In any event, according to Shri Sisodia under clause 10
(under the head “Role of Government of Kerala”) of the Memorandum
of Understanding between Total Solution Providers for E-Governance
and Government of Kerala, the intellectual property vests in the                F
Government. The claim of copyright by the appellant will, therefore, not
subsist.
       19. The contention with regard to excessive delegation of legislative
power under Section 70(1) of the I.T. Act has been sought to be fortified
by Shri Basant by relying upon several pronouncements of this Court. It         G
will hardly be necessary to take specific notice of any of the said decisions
inasmuch as the proposition sought to be canvassed is too well established
to raise any dispute or doubt. However, while considering the said
question as raised before it the High Court in the impugned order had,
                                                                                H
76             SUPREME COURT REPORTS                           [2018] 3 S.C.R.


A    and in our view correctly, held that the provisions of Section 70(1) of the
     I.T. Act has to be read conjointly with Section 2(k) and Section 17 of the
     Copyright Act, 1957 in order to give due effect to the related provisions
     of two different enactments made by the legislature. Section 70(1) of
     the I.T. Act as in force at the relevant point of time (at the time when the
     matter was under consideration in the High Court) or even after its
B
     amendment in 2009 bars access to a person to the system declared as a
     “protected system” without authorization from the Appropriate
     Government. Plainly read, the power of declaration of a “protected
     system” may invade a copyright which may be vested in a private owner.
     However, such a situation is taken care of by the provisions contained in
C    Section 2(k) of the Copyright Act, 1957 which defines “Government
     work” and Section 17(d) of the Copyright Act, 1957 which vests in the
     Government, copyright in a government work as defined by Section 2(k).
     The balance is struck by Section 17 between copyright pertaining to any
     other person and copyright vested in the Government in a “government
     work”. Section 70 of the I.T. Act, therefore, cannot be construed
D
     independent of the provisions of the Copyright Act; if Section 70 of the
     I.T. Act has to be read in conjunction with Section 2(k) and Section 17
     of the Copyright Act 1957 the rigours that would control the operation of
     Section 70(1) of the I.T. Act are clearly manifested.
            20. The amendment to Section 70(1) of the I.T. Act brought in by
E    Act No. 10 of 2009, in our considered view, makes the power of
     declaration of protected system even more stringent by further
     circumscribing the power of declaration of protected system only in
     respect of a computer resource which directly or indirectly affects the
     facility of Critical Information Infrastructure, which is a defined
F    expression in the I.T. Act (already extracted). The amendment, in our
     considered view is not a first time introduction of parameters to govern
     the exercise of power under Section 70(1) of the I.T. Act. Rather, it is
     an attempt to circumscribe the power even further than what was
     prevailing under the pre-amended law, by narrowing down the ambit of
     “government work” so far as it is relatable to the facility of Critical
G    Information Infrastructure, as defined under the Act.
           21. The challenge made by the appellant before the High Court
     insofar as the Notification dated 27th December, 2002 is concerned was
     founded on a claim of copyright in the FRIENDS application software.
     The said claim, ex facie, is not tenable in the light of the proviisons
H
             B.N. FIROS v. STATE OF KERALA & ORS.                                 77
                      [RANJAN GOGOI, J.]

contained in Section 17(a) of the Copyright Act and the admitted/pleaded          A
case of the appellant in the writ petition to the effect that it was entrusted
by Microsoft to develop the software for which it received due
consideration from Microsoft. If that be so, on the appellant’s own
pleadings in the writ petition, it would not be entitled to claim copyright in
the FRIENDS application software under Section 17(a) of the Copyright
                                                                                  B
Act. Whether under clause 10 (under the head “Role of Government of
Kerala”) of the Memorandum of Understanding between Total Solution
Providers for E-Governance and Government of Kerala, the State would
have a claim of copyright in view of Section 17(a) of the Copyright Act
is altogether a different question which has no bearing on the claim of
the appellant to copyright in the FRIENDS application software. In the            C
present proceedings, the issue of inter-parties rights between Microsoft
and 1st respondent/4th respondent is not in dispute to require any resolution.
The only point for adjudication is the claim of the appellant, as the
developer of the application software, to be the first author of the said
work so as to vest in him/it a copyright under the provisions of Section
                                                                                  D
17 of the Copyright Act, 1957, a claim which is palpably unfounded both
on the basis of the provisions of Section 17(a) of the Copyright Act and
under clause 10 (under the head “Role of Government of Kerala”) of
the Memorandum of Understanding between Total Solution Providers
for E-Governance and Government of Kerala.
       22. For the aforesaid reasons, we do not find any ground for               E
interference with the orders passed by the High Court. Accordingly,
while affirming the said orders of the High Court we dismiss the appeal(s)
leaving the parties to bear their own costs.

                                                                                  F
Nidhi Jain                                                    Appeal dismissed.




                                                                                  G




                                                                                  H
78                       [2018]
              SUPREME COURT     3 S.C.R. 78
                            REPORTS                       [2018] 3 S.C.R.


A                               MOHAN LAL
                                       v.
                                 NAND LAL
                        (Civil Appeal No. 5887 of 2009)
B                             MARCH 21, 2018
             [N. V. RAMANA AND S. ABDUL NAZEER, JJ]
            Will: Credibility – On facts, suit by respondent seeking
     ejectment of his brother-appellant from the property – Challenged
     by the appellant – Subsequently, respondent amended the plaint –
C
     Sought relief on the basis of Will by the grandfather bequeathing
     the house property in respondent’s favour – Trial court decreed suit
     in favour of respondent – High Court upheld the order – On appeal,
     held: There is no suspicious circumstance surrounding the
     genuineness of the Will – Will was executed by the testator in the
D    year 1945 and it was drawn in the own handwriting of the executant
     himself – It cannot be said that Will lacks credibility because the
     idea of bringing it on record was an afterthought of the respondent,
     that too after filing the written statement – 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
E
     given effect to in the absence of any cogent evidence in support of
     the claim – Once the Will is believed to be a genuine piece of
     document, the concurrent findings recorded by the courts below,
     upheld.
           Dismissing the appeal, the Court
F
           HELD : 1.1 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,
     grandson-in-law of late G-grandfather, who used to correspond
     with him and thereby well acquainted with the handwriting of the
G    testator. The submission 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, Clerk of the Bank,
     clearly deposed, supported by documentary evidence, that the
H
                                    78
                    MOHAN LAL v. NAND LAL                                    79


respondent secured a loan from the Bank by pledging the Will in              A
the year 1964 and since then the Will was kept in the bank. The
said witness, PW2 was not cross-examined at the trial. Going by
the material on record, there is no suspicious circumstance
surrounding the genuineness of the Will. [Para 7] [81-E-G]
      1.2 Merely taking the ground that the name of appellant                B
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                   C
plaintiff-respondent, and there was no material on record to show
how the name of appellant-defendant was added in the municipal
records. The courts 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             D
no need to delve into the matter further. In such circumstances,
there is no reason to disturb the concurrent findings recorded by
the courts below. [Para 8] [81-H; 82-A-B]
      CIVIL APPELLATE JURISDICTION : Civil Appeal No.5887
of 2009.                                                                     E
      From the Impugned Order dated 29.11.2006 of the High Court of
Madhya Pradesh, Jabalpur Bench at Indore in First Appeal No.239 of
1996.
      J.P. Singh, R.C. Kaushik, Advs for the Appellant.
                                                                             F
      Sanjeev K.Bhardwaj, Vijay K. Jain, Advs for the Respondent.
      The Judgment of the Court was delivered by
      N. V. RAMANA, J. 1. 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          G
1996 whereby the High Court while confirming the judgment of the trial
Court, dismissed the appeal preferred by the appellant with costs.
       2. In the year 1989, the respondent herein instituted a Suit,before
the District Judge, Indore seeking ejectment of his brother—the appellant
                                                                             H
80             SUPREME COURT REPORTS                            [2018] 3 S.C.R.


A    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—
B
     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 Goverdhanlalbequeathed the house property by executing a Will on
     9th September, 1945 in favour of the plaintiff, and after the death of his
C    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 impugned herein, the High Court confirmed the judgment
     of the trial Court and dismissed his appeal. Hence, the appellant is before
D
     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
E    the disputed property being grandson of lateGoverdhanlal 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
F
     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 Sarjubai and Rajubai also acquired rights on the disputed
     property and therefore they are necessary parties to the Suit, but none
G    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.
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         MOHAN LAL v. NAND LAL [N.V. RAMANA, J.]                                81


       5. On behalf of the respondent-plaintiff it was submitted that at        A
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
                                                                                B
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 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           C
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        D
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           E
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 SahkariBank, clearly deposed,
supported by documentary evidence, that the respondent secured a loan           F
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.                                                        G
      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
                                                                                H
82                SUPREME COURT REPORTS                       [2018] 3 S.C.R.


A    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 below have thoroughly
     assessed the material evidences and accordingly came to the right
B
     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,
C    therefore, dismissed with no order as to costs.


     Nidhi Jain                                                 Appeal dismissed.


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