DHANUULALAND OTHERSversusGANESHRAMANDANOTHER

                    (2015] 4 S.C.R. 199



                 DHANUULALAND OTHERS                          A

                             v.
              GANESHRAMANDANOTHER

              (Civil Appeal No. 3410 of 2007)                 B

                      APRIL 08, 2015

          [M. Y. EQBAL AND AMITAVA ROY, JJ.]

        Transfer of Property - Execution of Will by original
                                                              c
defenda[lt No. 1 - In respect of property inherited by her after
her husband's death - In favour of defendant Nos. 1 to 4 -
Original defendant No. 1 also excuted sale in respect of a
portion ofJhe property in favour of defendant No. 5 - Suit o
challenging the execution of Will and Sale alleging inter-a Iia
that the original defendant No. 1 was a mistress and not
legally wed wife-Trial Court dismissed the suit- High Court
held that Will was not proved as per law, but the sale deed
was valid - Cross-appeals by defendants as well as plaintiff E
- Held: In the facts of the case, there is strong presumption
in favour of validity of marriage and such presumption was
not rebutted hence the sale-deed was valid- However, the
Will suffers from serious suspicious circumstances -
Therefore, the order of High Court does not need interference F
- Will - Sale.

      Evidence - Proof of a Will- Standard of- Held: Proof
of a Will stands on higher degree, in comparison to other
documents - There must be clear evidence regarding G
execution of the Will - Will.

      Dismissing the appeals, the Court

      HELD: 1. The law presumes in favour of marriage         H
                         199
200      SUPREME COURT REPORTS              [2015] 4 S.C.R.

A and against concubinage, when a man and woman have
  cohabited continuously for a long time. However, the
  presumption can          be    rebutted     by    leading
  unimpeachable evidence. A heavy burden lies on a
  party, who seeks to deprive the relationship of legal
B origin. In the instant case, instead of adducing
  unimpeachable evidence by the plaintiff, a plea was
  taken that the defendant has failed to prove the fact that
  defendant No. 1 was the legally married wife. The
C relationship of defendant No. 1 and her husband has not
  been denied. It has also not been denied that they had
  been living together as husband and wife in a joint
  family. Thus, in the facts of the case, there is strong
  presumption in favour of the validity of a marriage and
o the legitimacy of its child for the reason that their
  relationship is recognized by all persons concerned.
  The High Court, therefore, came to a correct conclusion
  by recording a finding that defendant No. 1 was the
  legally married wife of 'C'. [Paras 11, 12 and 15] [206-B-
E F; 207-F-G]

      A. Dinohamy vs. W.L. Balahamy AIR 1927 PC 185;
      Goka/ Chand vs. Parvin Kumari Al R 1952 SC 231:
      1952 SCR 825 - relied on.
F
         2.1 The execution of a document does not mean
  mec~anical act of signing the document or getting it
  signed, but an intelligent appreciation of the contents
  of the document and signing it in token of acceptance
G of those contents. Proof of a Will stands in a higher
  degree in comparison to other documents. There must
  be a clear evidence of the attesting witnesses or other
  witnesses that the contents of the Will were read
  over to the executant and he, after admitting the same
H
. · DHANUULAL AND ORS. v. GANESHRAM AND ANR.                    201



to be correct, puts his signature in presence of the A
witnesses. It is only after the executant puts his
signature, the attesting witnesses shall put their
signatures in the presence of the executant. [Paras 18
and 19] [209-G-H; 210-A-C]
                                                       B
       2.2 In the present case, the will suffers from
serious suspicious circumstances. When the Will was
being executed, the thumb imp1 ~ssion over the alleged
Will was also taken by the beneficiaries and the
document-writer was shown to be scribe of the C
document, whereas the document was not scribed by
him. However, original defendant No. 1 although filed
written statement before her death, but she did not
whisper anything about the Will in the written D
statement. Admittedly, the Will was allegedly executed
in 1977 whereas the written statement was filed some
time in 1987. [Para 20] [210-C-E]
                   Case Law Reference
                                                                 E
AIR 1927 PC 185             relied on.           Para 13
1952 SCR 825                relied on.           Para 14
     CIVIL APPELLATE JURISDICTION: Civil Appeal No.
3410of2007.                                                      F
      From the Judgment and Order dated 17.07.2006 of the
High Court of Chhattisgarh at Bilaspur in First Appeal No. 92
of2001.
                           WITH.
                                                                G
C. A No. 3411 of 2007
       S. K. Dubey, Dr. Rajesh Pandey, Yogesh Tiwari (for
Mridula Ray Bharadwaj), Navin Prakash, H. K. Chaturvedi,
Navin Prakash, Niraj Charma for the appearing parties.           H
202           SUPREME COURT REPORTS                           [2015] 4 S.C.R.


A              The Judgment of the Court was delivered by
               M. Y. EQBAL, J. 1. Aggrieved by the judgment and
      order passed by the High Court, partly dismissing First
      Appeal No.92 of 2001, both the plaintiff and the defendant
8     have filed the aforementioned two appeals. While
      confirming judgment and decree, the High Court reversed the
      finding recorded by the trial court on the issue of will executed
      by the testatrix.
          2. The plaintiff-Ganeshram, appellant in Civil Appeal
C No.3411 of 2007, filed suit for declaration, possession and
  damages in relation to the two suit houses described in
  Schedule A & B of the plaint, pleading inter alia that the
  registered sale deed of 1987, executed by Phoolbasa Bai
  (original defendant no.1, who died during the pendency of
0
  the suit) in favour of defendant no.5 Mukesh Kumar
  Chourasia, which relates to some portion of suit house, be
  declared illegal, void and not binding on him.
              3. To understand factual matrix and issue involved
E     in the case, we would like to reproduce here the pedigree
      table as submitted before us:
                                      Shivram
                                   (Died in 1932)
      _ _ _ _ _ _ _ _ _ _ _ J_ _ _ _ _ _ _ __

       I                                                                    I
F     Sumitrabai (Daughter)(died in 1976)   Chhatrapati(Son) (died in 1945)
      Husband of Sumitra-Mangal Prasad      Kept-wife: Phulbasabai (def.no.1)
         (Died in 1954)                                               I
               I                                            Mannulal (son)
                                                    (died unmarried on 14.4.1967)
            _J,I_ _ _ _ _ _ _ __
           I                     I
G     Shyamlal (son)         Radha Bai (daughter)
      (died in 1973)

               I                    I                             I
      Ganeshram (son)      Laxmi Bai (daughter)           Ganga Bai (daughter)
      Plaintiff
H
 DHANUULAL AND ORS. v. GANESHRAM AND ANR. 203
              [M. Y. EQBAL, J.]

        4. The suit property was originally owned by Shivram A
who had a daughter Sumitrabai and a son Chhatrapati.
The plaintiff, the grandson of Sumitrabai, filed a suit for
declaration of ownership, possession and damages in
relation to the suit property against defendant nos.1 to 5. The
plaintiff challenged the validity of the Will dated 18.08.1977 B
purported to have been executed by Phoolbasa Bai in favour
of the sons of her brother Gayaprasad, defendant nos.1-4.
The plaintiff also challenged the validity of the sale deed
purported to have been executed by Phoolbasa Bai in 1987 C
in favour of defendant no. 5 in relation to a portion of the suit
property.

       5. The plaintiff alleged that Sumitrabai (plaintiff's
grandmother) had become the owner of the suit property by D
adverse possession having stayed therein, afterthe death of
her husband Mangal, with her father Shivram till his death in
1932 and till her own death in 1976. Phoolbasa Bai was
alleged to have been the mistress and not the legally wedded
wife of Chhatrapati and their son was ·alleged to have died E
unmarried and issueless in 1967. The sale deed and the Will
purported to have been executed by Phoolbasa Bai were
alleged to be illegal.

       6. The suit was contested firstly by filing joint written F
statement by the original defendants namely Phoolbasa Bai
and Gaya Prasad stating that after the death of Shiv Ram
the entire property was succeeded by Chhatrapati (his only
son) as Sumitrabai was a married daughter. It was further
pleaded that Phoolbasa Bai, being the lawful wedded wife G
of Chhatrapati, became the owner of the suit property after
Chhatrapati's death in 1945. During the pend ency of the suit,
when Phoolbasa died, she was. substituted by defendant
nos.1 to 4, who also filed separate written statement in
                                                                 H
204         SUPREME COURT REPORTS                 [2015] 4 S.C.R.


A     addition to earlier written statement filed by the original
      defendants. Defendant no.5 also filed separate written
      statement claiming to be the owner of the portion of property
      by virtue of a sale deed executed in his favour in 1987.

B         7. The trial court dismissed the civil suit holding
  that the Will executed by Phoolbasa in the year 1977 in favour
  of defendants nos.1 to 4 is legal and the sale effected by her
  during the pendency of the civil suit in favour of defendant
  no.5 is also legal and valid. The trial judge recorded the
C finding that Sumitra Bai had not perfected her title by
  adverse possession and the plaintiff could not establish that
  Phoolbasa Bai was a concubine of late Chhatrapati. The
  trial court also recorded a finding that the plaintiff failed to
  establish that the Will was a fraudulent and fabricated
D document.

          8. Aggrieved by the judgment and decree of the trial
  court, plaintiff moved the High Court preferring First Appeal,
  which was partly dismissed by the learned Single Judge of
E the High Court. Although learned Single Judge set aside the
  finding of the trial court on the issue of validity of the Will on
  the ground that the Will was not proved as per law, but upheld
  the sale deed executed by Phoolbasa Bai in favour of
F defendant no.5. The concluding paragraphs of the impugned
  order are, therefore, quoted hereinbelow:

        "In the facts and circumstances, the sale in favour of
        defendant no.5 was a valid sale and the same cannot
        be held to be illegal, void and not binding against the
G
        plaintiff. The arguments advanced in this regard cannot
        be accepted. Now the question arises, what should be
        the legal position after the death of Smt. Phoolbasa
        and her son namely Mannulal when it has been held
H       that the alleged will executed in favour of defendants
 DHANUULAL AND ORS. v. GANESHRAM AND ANR. 205
              [M. Y. EQBAL, J.]

  nos.1 to 4 was not proved. Certainly these properties         A
  were succeeded by her from her husband or from her
  father-in-law, therefore, according to Section 15(2)(b) of
  the Hindu Succesion Act, this shall devolve, in the
  absence of any son or daughter of the deceased
  (including the children of any predeceased son or             B
  daughter) upon the heirs of her husband. In this case, if
  we look to the pedigree set forth in the plaint, the
  succeeding heir of her husband, namely Chhatrapati,
  would be sister's daughter which finds place as serial
                                                                c
  no.4 in Entry IV of Class II of Schedule. When Radha
  Bai, the sister's daughter is said to be alive on the date
  of succession according to the plaint allegations itself,
  then the plaintiff, in the reversion.ary right will not get
  the ownership of the property.                                D
  In the result, the appeal is dismissed. The judgment and
  decree passed by the trial court are hereby confirmed
  with the aforesaid modifications in the finding regard
  the 'Will'."                                                  E
   9. Hence, present cross appeals filed by both side against
each other including purchaser-defendant no.5. Defendants
nos.1 to 4 have preferred Civil Appeal No.3410 of 2007 and
the plaintiff has preferred Civil Appeal No.3411 of 2007.       F
        10. Mr. Naveen Prakash, learned counsel appearing
for the plaintiff-appellant in C.A. No.3411 of 2007 assailed
the finding on the relationship of Chhatrapati and Phoolbasa
Bai as husband and legally married wife. Learned counsel G
submitted that no witness from the side of defendant has
been examined to prove the marriage of Phoolbasa Bai
with Chhatrapati. Learned counsel further submitted that no
finding has been recorded by the Trial Court or the Appellate
Court as to when Chhatrapati died. However, in course of H
206         SUPREME COURT REPORTS                    [2015] 4 S.C.R.



A     argument, learned counsel does not deny that Phoolbasa Bai
      was living with the joint family when Chhatrapati was alive for
      the last 20 years, but there is no evidence of valid marriage.

               11. We are unable to accept the submissions made
B     by Mr. Naveen Prakash, learned counsel appearing for the
      plaintiff-appellant. Indisputably, the first wife of Chhatrapati
      died in the very early age and immediately thereafter the
      original defendant No.1 Phoolbasa Bai started living with
      Chhatrapati as his second wife. Out of the wedlock of
C     Phoolbasa Bai and Chhatrapati, one son was born, whose
      name was Mannu Lal. The said son of Chhatrapati and
      Phoolbasa Bai died unmarried. It is also not in dispute that
      the original owner Shiv Ram had only one son namely,
      Chhatrapati and one daughter Sumitrabai. Phoolbasa Bai
0
      died during the pend ency of the suit in the year 1992. The
      relationship of Chhatrapati and Phoolbasa Bai has not been
      denied. It has also not been denied that they had been
      living together as husband and wife in a joint family.
E
              12. In the fact of the case there is strong presumption
      in favour of the validity of a marriage and the legitimacy of its
      child for the reason that the relationship of Chhatrapati and
      Phoolbasa Bai are recognized by all persons concerned.
F         13. lnthecaseofA. Dinohamyvs. W.L. Balahamy,AIR
  1927 PC 185, it was held that where a man and woman are
  proved to have lived together as husband and wife, the law
  will presume, unless the contrary is clearly proved, that they
G were living together in consequence of a valid marriage, and
  not in a state of concubinage. The Court observed as follows-

        "The parties lived together for twenty years in the same
        house, and eight children were born to them. The
        husband during his life recognized, byaffectionate
H
 DHANUULAL AND ORS. v. GANESHRAM AND ANR.                        207
              [M. Y. EQBAL, J.]

  provisions, his wife, and children, The evidence' of            A
  the Registrar of the District shows that for a long course
  of years the parties were recognized as married citizens,
  and even the family functions and ceremonies, such as,
  in particular, the reception of the relations and other
  guests in the family house by Don Andris and Balahamy           B
  as host and hostess-all such functions were conducted
  on the footing alone that they were man and wife. No
  evidencewhatsoever is afforded of repudiation ofthis
  relation by husband or wife or anybody."
                                                                  c
        14. In the case of Gokal Chand vs. Parvin Kumari,
AIR 1952 SC 231, this Court observed that continuous co-
habitation of woman as husband and wife and their treatment
as such for a number of years may raise the presumption of D
marriage, but the presumption which may be drawn from long
co-habitation is rebuttable and ifthere are circumstances which
weaken and destroy that presumption, the Court cannot ignore
them.

       15. It is well settled that the law presumes in favour of E
marriage and against concubinage, when a man and woman
have cohabited continuously for a long time. l;;lowever, the
presumption can be rebutted by leading unimpeachable
evidence. A heavy burden lies on a party, who seeks to F
deprive the relationship of legal origin. In the instant case,
instead of adducing unimpeachable evidence by the plaintiff,
a plea was taken that the defendant has failed to prove the
fact that Phoolbasa Bai was the legally married wife of
Chhatrapati. The High Court, therefore, came to a correct G
conclusion by recording a finding that Phoolbasa Bai was
the legally married wife of Chhatrapati.

        16. For the aforesaid reason, we do not find any merit
in C.A. No.3411 of2007.                                           H
208         SUPREME COURT REPORTS                      [2015) 4 S.C.R.


A             17. Sofarthevalidity of will is concerned, the High
      Court after considering a catena of decisions came to the
      following conclusion:-

         "26. If we apply the above law in the present matter it
B       would appear that the attesting witnesses were not
        examined because they were not alive and will has been
         proved by only examining the scribe as P.W.3. Though it
         has been stated by the Scribe that he has drafted and
        typed the will on the instructions of the testatrix, but this
c       fact appears to be false on the face of the document ·
         itself; There are many suspicious circumstances
        appearing on the face of document which go to suggest
        that in fact, nothing was drafted or typed by the scribe
        on the instructions of the testatrix, but a typed matter
D
        was placed before him for getting it registered showing
        as the will of the testatrix. First of all, it would appear that
        though the will has ended in the very second sheet but
        there is no space left for signature of the scribe and
E       the scribe has inserted his signature in between the ·
        last two lines by using an ink pen. Secondly it appears
        that the COIJlplete date like 18.8.1977 was not typed in
        the second page and only-8-1977 was typed and figures
        like 18 have been inserted by an ink pen showing as
F       the document was executed on 18.8.1977. EX.D-72
        Muktarnama was also written and signed on the said
        date and the suspicious circumstance appears that
        when this document (Muktarnama) was being executed,
        the thumb impression over the alleged will was also taken
G       by the beneficiaries and the document writer was shown
        to be the Scribe of the document whereas, in fact, the
        document was not scribed by him. Another important
        circumstance is that the original defendant namely Smt.
        Phoolbasa had died on 20.9.1992 after filing of her
H
 DHANUULAL AND ORS. v. GANESHRAM AND ANR.                         209
              [M. Y. EQBAL, J.]

  written statement on 14. 7 .1987. The date of execution of       A
  the will is 18.8.1977 but there is no whisper of her will in
  her written statement which she had filed on the said
  date. Though it was not a requirement of law, but under
  a normal human nature if she has pleaded the detailed
  administration of property, vide para 9 of her written           B
  statement, right from its acquisition by Shiv Ram to the
  date of filing of the suit, (please see para 9 of the written
  statement). She should have mentioned something
  about the will, if this alleged will was in her knowledge
  and she in fact had executed the same in favour of
                                                                   c
  defendant no. 1 to 4. These circumstances which are
  highly suspicious, have not been removed or cleared by
  the beneficiaries of the will and only by examining the
  scribe, who is not an attesting witness and whose                D
  statement is not very satisfactory in appreciation on all
  above points,· particularly in the situation when the
  testatrix was residing in the dominion of the
  beneficiaryes and their father and was keeping a
  fiduciary relations with them, it cannot be held that a          E
  due execution of will has been proved by the
  defendants in accordance with the provisions of section
  68 or other provisions of the Evidence Act. Thefinding
  recorded by the court below that due execution of the
  will is proved, is not in accordance with law and the            F
  same is set aside. The will is held to be not proved in
  this case."

       18. It is evident from the findings recorded by the
High Court in the paragraph referred to hereinabove that G
the Will suffers from serious suspicious circumstances. The
execution of a document does not mean mechanical act of
signing the document or getting it signed, but an intelligent
appreciation of the contents of the document and signing it in H
210          SUPREME COURT REPORTS               [2015] 4 S.C.R.


A     token of acceptance of those contents.

          19. Proof of a Will stands in a higher degree in
  comparison to other documents. There must be a clear
  evidence of the attesting witnesses or other witnesses that
B the contents of the Will were read over to the executant
  and he, after admitting the same to be correct, puts his
  signature in presence of the witnesses. It is only after the
  executant puts his signature, the attesting witnesses shall put
  their signatures in the presence of the executant.
c
          20. In the instant case, the suspicious circumstance
  appears to be that when the Will was being executed, the
  thumb impression over the alleged Will was also taken by
  the beneficiaries and the document-writer was shown to be
D scribe of the document, whereas the document was not scribed
  by him. However, late Phoolbasa Bai although filed written
  statement before her death, but she did not whisper anything
                                               '
  about the Will in the written statement. Admittedly,    the Will
  was allegedly executed in 1977 whereas the written statement
E was filed some time in 1987. Taking into consideration all
  these facts, we do not filed any error in the conclusion arrived
  at by the High Court. The said finding, therefore, needs no
  interference by this Court.

F     21. For the reasons aforesaid, we do not find any merit in
      these appeals which are accordingly dismissed.

      Kalpana K. Tripathy                        Appeals dismissed.


G