B.N. FIROS versus STATE OF KERALA & ORS. on 27 March 2018

[2018] 3 S.C.R. 68

SUPREME COURT REPORTS

[2018] 3 S.C.R.

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B.N. FIROS

v.

STATE OF KERALA & ORS.

(Civil Appeal No. 79 of 2008)

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MARCH 27, 2018

[RANJAN GOGOI AND

MOHAN M. SHANTANAGOUDAR, JJ.]

Information Technology Act, 2000 – s. 70(1) – ProtectedCsystem – Issuance of Notification dated 27th December, 2002 u/s.70(1) – Declaration that the computer, computer system andcomputer network specified in the Schedule to the Notification tobe “protected systems” – Challenge to, by the appellant on theground that copyright in the e-governance programme developed Dby them for the Government vested in the appellant u/s. 17 of the1957 Act and the Notification was an infringement of the said right– Case of the State that the appellant developed the software forMicrosoft which had undertaken to make available the same to theState through 4[th] respondent-government agency, free of cost – HighCourt held that the Intellectual Property Rights in the software vestedEin the Government so as to entitle it to declare the same as aprotected system u/s. 70(1) – Interference with – Held: Not calledfor – The power of declaration of a “protected system” may invadea copyright which may be vested in a private owner – However,such a situation is taken care of by the provisions contained in s.F2(k) of the 1957 Act which defines “Government work” and s.17(d)of the 1957 Act which vests in the Government, copyright in agovernment work as defined by s. 2(k) – Provisions of s.70(1) hasto be read conjointly with s. 2(k) and s. 17 of the 1957 Act, in orderto give due effect to the related provisions of two different enactmentsmade by the legislature – Furthermore, appellant admitted/pleadedGthat it was entrusted by Microsoft to develop the software for whichit received due consideration from Microsoft, if that be so, appellantwould not be entitled to claim copyright in the application softwareu/s.17(a) of the 1957 Act – Copyright Act, 1957 – ss. 17(a), 2(k).

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Dismissing the appeal, the Court

HELD : 1.1 The High Court in the impugned order hascorrectly, held that the provisions of Section 70(1) of theInformation Technology Act, 2000 has to be read conjointly withSection 2(k) and Section 17 of the Copyright Act, 1957 in orderto give due effect to the related provisions of two differentenactments made by the legislature. Section 70(1) of the I.T. Actas in force at the relevant point of time (at the time when thematter was under consideration in the High Court) or even afterits amendment in 2009 bars access to a person to the systemdeclared as a “protected system” without authorization from theAppropriate Government. Plainly read, the power of declarationof a “protected system” may invade a copyright which may bevested in a private owner. However, such a situation is takencare of by the provisions contained in Section 2(k) of the CopyrightAct, 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). Thebalance is struck by Section 17 between copyright pertaining toany other person and copyright vested in the Government in a“government work”. Section 70 of the I.T. Act, therefore, cannotbe construed independent of the provisions of the Copyright Act;if Section 70 of the I.T. Act has to be read in conjunction withSection 2(k) and Section 17 of the Copyright Act 1957 the rigoursthat would control the operation of Section 70(1) of the I.T. Actare clearly manifested. [Para 19] [75-G-H; 76-A-D]

1.2 The amendment to Section 70(1) of the I.T. Act broughtin by Act No. 10 of 2009 makes the power of declaration ofprotected system even more stringent by further circumscribingthe power of declaration of protected system only in respect of acomputer resource which directly or indirectly affects the facilityof Critical Information Infrastructure, which is a definedexpression in the I.T. Act. The amendment is not a first timeintroduction of parameters to govern the exercise of power underSection 70(1) of the I.T. Act. Rather, it is an attempt tocircumscribe the power even further than what was prevailingunder the pre-amended law, by narrowing down the ambit of B

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A“government work” so far as it is relatable to the facility of CriticalInformation Infrastructure, as defined under the Act. [Para 20][76-E-G]

1.3 The challenge made by the appellant before the HighCourt insofar as the Notification dated 27[th] December, 2002 isBconcerned was founded on a claim of copyright in the FRIENDSapplication software. The said claim, ex facie , is not tenable inthe light of the provisions contained in Section 17(a) of theCopyright Act and the admitted/pleaded case of the appellant inthe writ petition to the effect that it was entrusted by Microsoftto develop the software for which it received due considerationCfrom Microsoft. If that be so, on the appellant’s own pleadings inthe writ petition, it would not be entitled to claim copyright in theFRIENDS application software under Section 17(a) of theCopyright Act. Whether under clause 10 (under the head “Roleof Government of Kerala”) of the Memorandum of UnderstandingDbetween Total Solution Providers for E-Governance andGovernment of Kerala, the State would have a claim of copyrightin view of Section 17(a) of the Copyright Act is altogether adifferent question which has no bearing on the claim of theappellant to copyright in the FRIENDS application software. Inthe present proceedings, the only point for adjudication is theEclaim 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 acopyright under the provisions of Section 17 of the CopyrightAct, 1957, a claim which is palpably unfounded both on the basisof the provisions of Section 17(a) of the Copyright Act and underFclause 10 (under the head “Role of Government of Kerala”) ofthe Memorandum of Understanding between Total SolutionProviders for E-Governance and Government of Kerala. Thereis no ground for interference with the orders passed by the HighCourt. [Para 22] [76-H; 77-A-F]

GCIVIL APPELLATE JURISDICTION : Civil Appeal No. 79 of2008.

From the Judgment and Order dated 24.05.2006 of the High Courtof Judicature of Kerala at Ernakulam in W.A. No.685 of 2004.

R. Basant, Sr. Advs, A. Karthik, V.K. Sidharthan, Advs for theHAppellant.

Pallav Sisodia, Sr. Adv, G. Prakash, Jishnu M.L., Mrs. PriyankaPrakash, 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 RANJAN GOGOI, J. 1. The appellant–B.N. Firos – proprietorof Comtech IT Solutions, Thiruvananthapuram had filed a Writ Petitionchallenging a Notification dated 27[th] December, 2002 issued under Section70(1) of the Information Technology Act, 2000 (hereinafter referred toas “I.T. Act”) declaring the computer, computer system and computernetwork specified in the Schedule to the Notification to be “protectedsystems” under the I.T. Act. The vires of Section 70 of the I.T. Actitself was also challenged. The Writ Petition was dismissed. The saidorder of dismissal has been affirmed in writ appeal by a Division Benchof the High Court and the review filed there against has also beendismissed. Aggrieved, this appeal(s) has been filed.

2. The brief facts that will be required to be noticed are as follows:

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 HighCourt it is stated that the appellant is the proprietor of Comtech ITSolutions, an Information Technology concern which is a member ofMicrosoft Developer Forum, a professional group of developerstechnically supported and guided by the Microsoft Corporation (India)Pvt. Ltd.

3. In the year 1999, the 1[st] respondent – State of Kerala throughthe 4[th] respondent – Centre for Development of Imaging Technology(C-DIT), Thiruvanthapuram, a Total Solution Provider (TSP), hadconceptualized 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. (hereinafterreferred to as “Microsoft”) had offered to provide the ApplicationSoftware and System Software free of cost for the pilot project. Theappellant – writ petitioner, being a member of the Microsoft Developer’sForum, was required by Microsoft to carry out the system study and todevelop the pilot project for the “FRIENDS” project.

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A4. After completion of the preliminary work, Microsoft placedorders with the appellant on 23[rd] May, 2000 pursuant to which theSoftware developed by the appellant was handed over to the 4[th]respondent and the Software was implemented as a pilot project at thefirst FRIENDS Centre at Palayam, Thiruvanthapuram in June 2000. Asthe said project was a success, the 1[st] respondent decided to extend theBsame to its 13 District Centres.

5. By a communication dated 31[st] January, 2001, the 4[th] respondentinformed the appellant that the FRIENDS project, for which the appellanthad developed the Application Software free of cost as part of thedevelopers forum agreement with Microsoft, has been successful andCthe Government has decided to establish FRIENDS Integrated CitizensService Centres in all the other 13 districts of the State for which therespondent No.4 would like to associate with the appellant forcustomization of the FRIENDS application software. Pursuant theretoan Agreement cum Memorandum of Understanding dated 19[th] February,D2001 was entered into between the appellant and the 4[th] respondent.

6. According to the appellant as the 4[th] respondent was attemptingto transfer some of the essentials of the FRIENDS application softwareto another concern, namely, M/s Stanhop Technology, a criminalproceeding was instituted by the appellant against said M/s StanhopTechnology. Apprehending further attempts, an application for registrationEof his copyright in the FRIENDS application software was also filed bythe appellant before the Registrar of Copyrights, New Delhi.

7. On the other hand, the 4[th] respondent had filed a suit i.e. O.S.No.8 of 2002 before the District Court, Thiruvananthapuram seeking adeclaration that the 4[th] respondent is the exclusive owner of the copyrightFand the sole owner of the Intellectual Property Rights of the FRIENDSapplication software. In view of the aforesaid suit for infringement filedby the 4[th] respondent, the Registrar of Copyright rejected the appellant’sapplication for registration of copyright in the “FRIENDS” softwareleaving the matter to be agitated after the decision in the civil suit.

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8. The 4[th] respondent had also instituted a criminal case againstthe appellant for infringement of the application software.

9. While the said proceedings were pending, the State Governmenthad issued a Notification dated 27[th] December, 2002 under Section 70(1)of the I.T. Act leading to the writ proceedings in question wherein theHimpugned orders have been passed by the High Court.

10. Before the High Court the appellant had founded his claim tothe reliefs sought primarily on the ground that the copyright in FRIENDSapplication software had vested in the appellant under Section 17 of theCopyright Act, 1957 and the Notification dated 27[th] December, 2002issued under Section 70(1) of the I.T. Act was an infringement of thesaid right. The challenge to the vires of Section 70 of the I.T. Act wasfounded on the basis of excessive delegation of the legislative powerinasmuch 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 thatthe 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 andSection 70 of the I.T. Act has to be construed harmoniously. Accordingto the High Court, if the said provisions are to be read and construedharmoniously the power of declaration of a “protected system” wouldbe only in respect of “Government work”, the copyright in which of theGovernment is acknowledged by Section 17(d) of the Copyright Act,1957. It is on the aforesaid broad basis that the contention of the appellantas regards invalidity of Section 70 of the I.T. Act was repelled.

12. Insofar as the challenge to the Notification dated 27/12/2002under Section 70(1) of the I.T. Act, based on a claim of a copyright, isconcerned the High Court took into account the fact that the registrationof copyright sought by the appellant had been negatived by the Registrarof Copyright and that the civil suit in this regard filed by the 4[th] respondentwas pending. The High Court further took the view that if according tothe appellant he was the first owner of the copyright, as claimed, nothingprevented him from instituting a suit for infringement under Sections 60and 61 of the Copyright Act, 1957 or from resorting to arbitration whichis contemplated by clause 7 of the agreement dated 19[th] February, 2001.

13. The High Court, however, went a little further and took intoaccount clause 10 (under the head “Role of Government of Kerala”) ofthe Memorandum of Understanding between Total Solution Providersfor E-Governance and Government of Kerala. The said clause 10 readsas under:

“10. Departmental Task Force will monitor the actualimplementation ofhte project vis a vis the milestones set by theTSP

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AIntellectual Property Rights of the system developed by all theTSPs and Departments shall vest in the Government of Kerala.Government of Kerala will be free to deploy the same system orwith modification in any of the Government/Semi Government/Quasi Government Department/ Organization.”BThe High Court held that the 4[th] respondent was a governmentagency and the Government had created the above agency as a TotalSolution provider for developing software for the Government. The HighCourt further held that the 4[th] respondent was bound by the above clauseand the appellant who undertook technical support by executing anagreement with the 4[th] respondent was also bound by the above clauseC10. The IPR copyright in respect of “FRIENDS” software thereforevests in the government and there is no clause in the agreement betweenthe appellant and the 4[th] respondent to show that the 4[th] respondent hasassigned the IPR right to the appellant. The High Court, accordingly,held that the Intellectual Property Rights in the software vested in theDGovernment 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.

14. We have heard the learned counsels for the parties.

15. Shri R. Basant, learned Senior Counsel appearing for theappellant has basically reiterated the arguments advanced before theEHigh Court additionally reinforced by the amendments made to Section70 of the I.T. Act which enables the exercise of the power to declareany computer resource as a “protected system” only if the same directlyor indirectly affects the facility of Critical Information Infrastructurewhich has been defined by the Explanation to Section 70(1) of the I.T.Act as:F

“Explanation: For the purposes of this section , “Critical InformationInfrastructure” means the computer resource, the incapacitationor destruction of which, shall have debilitating impact on nationalsecurity, economy, public health or safety.”

G16. Shri Basant has submitted that in clear distinction to what hadbeen introduced by the Amendment (Act No.10 of 2009) the powerunder the erstwhile Section 70(1) of the I.T. Act to declare any computer,computer system or computer network to be a protected system wasuncanalized and unguided delegation of legislative power. The learned H

counsel has submitted that the Amendment brought in by Act No. 10 of2009 reinforces the contention of the appellant and vindicates theconstitutional fragility of Section 70(1) of the I.T. Act as it then existed.

17. Shri Basant has further submitted that from the materials onrecord there is no manner of doubt that the appellant had on its/his owndeveloped the software and, therefore, under the provisions of theCopyright Act, 1957 the appellant must be acknowledged to be the firstowner of the copyright. Incidentally, the computer programmes, tablesand compilations including computer databases have been included inthe definition of “literary work” under Section 2(o) of the Copyright Act,1957 with effect from 10[th] May, 1995.

18. Shri Pallav Sisodia, learned Senior Counsel appearing for therespondent – State has contested the arguments advanced and hassubmitted 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 CopyrightAct, 1957 in which event the power of declaration of “protected system”would be available within clearly circumscribed limits and would notsuffer from any excessive delegation. So far as the claim of copyright isconcerned, Shri Sisodia has submitted that the appellant had developedthe software for Microsoft which had undertaken to make available thesame to the first respondent through the 4[th] respondent free of cost.The invoice raised by the appellant on Microsoft in this regard showspayment of remuneration by Microsoft to the appellant. Therefore, underSection 17(a) of the Copyright Act, 1957 Microsoft is the first owner ofthe copyright. In any event, according to Shri Sisodia under clause 10(under the head “Role of Government of Kerala”) of the Memorandumof Understanding between Total Solution Providers for E-Governanceand Government of Kerala, the intellectual property vests in theGovernment. The claim of copyright by the appellant will, therefore, notsubsist.

19. The contention with regard to excessive delegation of legislativepower under Section 70(1) of the I.T. Act has been sought to be fortifiedby Shri Basant by relying upon several pronouncements of this Court. Itwill hardly be necessary to take specific notice of any of the said decisionsinasmuch as the proposition sought to be canvassed is too well establishedto raise any dispute or doubt. However, while considering the saidquestion as raised before it the High Court in the impugned order had, AB

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Aand in our view correctly, held that the provisions of Section 70(1) of theI.T. Act has to be read conjointly with Section 2(k) and Section 17 of theCopyright Act, 1957 in order to give due effect to the related provisionsof two different enactments made by the legislature. Section 70(1) ofthe I.T. Act as in force at the relevant point of time (at the time when thematter was under consideration in the High Court) or even after itsBamendment in 2009 bars access to a person to the system declared as a“protected system” without authorization from the AppropriateGovernment. Plainly read, the power of declaration of a “protectedsystem” may invade a copyright which may be vested in a private owner.However, such a situation is taken care of by the provisions contained inCSection 2(k) of the Copyright Act, 1957 which defines “Governmentwork” and Section 17(d) of the Copyright Act, 1957 which vests in theGovernment, copyright in a government work as defined by Section 2(k).The balance is struck by Section 17 between copyright pertaining to anyother person and copyright vested in the Government in a “governmentwork”. Section 70 of the I.T. Act, therefore, cannot be construedDindependent of the provisions of the Copyright Act; if Section 70 of theI.T. Act has to be read in conjunction with Section 2(k) and Section 17of the Copyright Act 1957 the rigours that would control the operation ofSection 70(1) of the I.T. Act are clearly manifested.

20. The amendment to Section 70(1) of the I.T. Act brought in byEAct No. 10 of 2009, in our considered view, makes the power ofdeclaration of protected system even more stringent by furthercircumscribing the power of declaration of protected system only inrespect of a computer resource which directly or indirectly affects thefacility of Critical Information Infrastructure, which is a definedFexpression in the I.T. Act (already extracted). The amendment, in ourconsidered view is not a first time introduction of parameters to governthe exercise of power under Section 70(1) of the I.T. Act. Rather, it isan attempt to circumscribe the power even further than what wasprevailing under the pre-amended law, by narrowing down the ambit of“government work” so far as it is relatable to the facility of CriticalGInformation Infrastructure, as defined under the Act.

21. The challenge made by the appellant before the High Courtinsofar as the Notification dated 27[th] December, 2002 is concerned wasfounded on a claim of copyright in the FRIENDS application software.The said claim, ex facie, is not tenable in the light of the proviisonsH

contained in Section 17(a) of the Copyright Act and the admitted/pleadedcase of the appellant in the writ petition to the effect that it was entrustedby Microsoft to develop the software for which it received dueconsideration from Microsoft. If that be so, on the appellant’s ownpleadings in the writ petition, it would not be entitled to claim copyright inthe FRIENDS application software under Section 17(a) of the CopyrightAct. Whether under clause 10 (under the head “Role of Government ofKerala”) of the Memorandum of Understanding between Total SolutionProviders for E-Governance and Government of Kerala, the State wouldhave a claim of copyright in view of Section 17(a) of the Copyright Actis altogether a different question which has no bearing on the claim ofthe appellant to copyright in the FRIENDS application software. In thepresent proceedings, the issue of inter-parties rights between Microsoftand 1[st] respondent/4[th] respondent is not in dispute to require any resolution.The only point for adjudication is the claim of the appellant, as thedeveloper of the application software, to be the first author of the saidwork so as to vest in him/it a copyright under the provisions of Section17 of the Copyright Act, 1957, a claim which is palpably unfounded bothon the basis of the provisions of Section 17(a) of the Copyright Act andunder clause 10 (under the head “Role of Government of Kerala”) ofthe Memorandum of Understanding between Total Solution Providersfor E-Governance and Government of Kerala.

22. For the aforesaid reasons, we do not find any ground forinterference 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.

Nidhi Jain

Appeal dismissed.

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[2018] 3 S.C.R. 78

SUPREME COURT REPORTS

[2018] 3 S.C.R.

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MOHAN LAL

v.

NAND LAL

(Civil Appeal No. 5887 of 2009)

BMARCH 21, 2018

[N. V. RAMANA AND S. ABDUL NAZEER, JJ]

Will: Credibility – On facts, suit by respondent seekingejectment of his brother-appellant from the property – Challengedby the appellant – Subsequently, respondent amended the plaint –CSought relief on the basis of Will by the grandfather bequeathingthe house property in respondent’s favour – Trial court decreed suitin favour of respondent – High Court upheld the order – On appeal,held: There is no suspicious circumstance surrounding thegenuineness of the Will – Will was executed by the testator in theDyear 1945 and it was drawn in the own handwriting of the executanthimself – It cannot be said that Will lacks credibility because theidea of bringing it on record was an afterthought of the respondent,that too after filing the written statement – Merely taking the groundthat the name of appellant has also been mutated in the municipalrecord and thereby he acquires right in the property, cannot beEgiven effect to in the absence of any cogent evidence in support ofthe claim – Once the Will is believed to be a genuine piece ofdocument, the concurrent findings recorded by the courts below,upheld.

Dismissing the appeal, the CourtF

Conclusion

Dismissing the appeal, the CourtF

HELD : 1.1 The Will was executed by the testator in theyear 1945 and it was drawn in the own handwriting of the executanthimself. His handwriting was also duly proved by PW5,grandson-in-law of late G-grandfather, who used to correspondwith him and thereby well acquainted with the handwriting of theGtestator. The submission that the Will lacks credibility becausethe idea of bringing it on record was an afterthought of therespondent-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

respondent secured a loan from the Bank by pledging the Will inthe year 1964 and since then the Will was kept in the bank. Thesaid witness, PW2 was not cross-examined at the trial. Going bythe material on record, there is no suspicious circumstancesurrounding the genuineness of the Will. [Para 7] [81-E-G]

1.2 Merely taking the ground that the name of appellanthas also been mutated in the municipal record and thereby heacquires right in the property, cannot be given effect to in theabsence of any cogent evidence in support of the claim. The recordshows that prior to the addition of his name in the municipalrecords, when the respondent’s name alone was there, thedefendant-appellant had deposited the taxes in the name ofplaintiff-respondent, and there was no material on record to showhow the name of appellant-defendant was added in the municipalrecords. The courts below have thoroughly assessed the materialevidences and accordingly came to the right conclusion. Oncethe will is believed to be a genuine piece of document, there isno need to delve into the matter further. In such circumstances,there is no reason to disturb the concurrent findings recorded bythe courts below. [Para 8] [81-H; 82-A-B]

CIVIL APPELLATE JURISDICTION : Civil Appeal No.5887of 2009.

From the Impugned Order dated 29.11.2006 of the High Court ofMadhya Pradesh, Jabalpur Bench at Indore in First Appeal No.239 of1996.

J.P. Singh, R.C. Kaushik, Advs for the Appellant.

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 directedagainst the judgment dated 29[th] November, 2006 passed by the HighCourt of Madhya Pradesh, Bench at Indore in First Appeal No. 239 of1996 whereby the High Court while confirming the judgment of the trialCourt, dismissed the appeal preferred by the appellant with costs.

2. In the year 1989, the respondent herein instituted a Suit,beforethe District Judge, Indore seeking ejectment of his brother—the appellant A

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Aherein from the suit property and also claiming mesne profits. Thedefendant—appellant herein contested the Suit on the ground that hegot half share in the disputed property as it originally belonged to his latematernal grandfather who was survived by only two daughters.On thedeath of his grandfather his mother entered the succession and he hasbeen staying with his mother in the suit property.Therefore the plaintiff—Brespondent cannot claim to be the sole owner of the suit property andthe Suit itself is misconceived. Subsequently, the respondent—plaintiffamended the plaint to the effect that during the lifetime of his grandfather,late Goverdhanlalbequeathed the house property by executing a Will on9[th] September, 1945 in favour of the plaintiff, and after the death of hisCgrandfather in the year 1947, he has become sole owner of the Suitproperty. Taking into account the Will dated 9.9.1945, the trial Courtdecreed the Suit in favour of the respondent—plaintiff. The aggrieveddefendant—appellant herein filed first appeal before the High Court. Bythe judgment impugned herein, the High Court confirmed the judgment of the trial Court and dismissed his appeal. Hence, the appellant is beforeDus in this appeal assailing the findings of the Courts below.3. We have heard learned counsel for the parties and carefullygone through the material on record.

4. The case of the appellant is that he is entitled to half share inEthe disputed property being grandson of lateGoverdhanlal and his namewas also mutated in the municipal records. The Will in question was putin evidence by the plaintiff by amending the plaint after the filing ofwritten statement by him. It was not even executed in accordance withthe provisions of Sections 61 and 63 of the Indian Succession Act andtherefore, it cannot be taken into account as a valid and genuine oneFunder the Evidence Act. Further argument on behalf of the appellant isthat 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 disputedproperty and therefore they are necessary parties to the Suit, but noneGof these legal heirs of Late Goverdhanlal was made a party to the Suit.Under these circumstances, the Courts below could not have believedthe Will to be a genuine document, but by decreeing the Suit in favour ofthe plaintiff—respondent on the basis of the said Will, both the Courtsbelow have committed an error or law.

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5. On behalf of the respondent-plaintiff it was submitted that atthe time of execution of the Will on 9[th] September, 1945 the respondent—plaintiff alone was the male child in the family and the Will was writtenby Late Goverdhanlal, who was an advocate by profession, in his ownhandwriting. At the time of death of Late Goverdhanlal, the respondent-plaintiff was about 13 years age and the appellant-defendant was bornabout 8 years after the death of Late Goverdhanlal. The appellant, beingyounger brother of the respondent, was permitted to live in the disputedproperty with an assurance from him that he would vacate the houseand hand over vacant possession of the house to the respondent whendemanded. But the appellant failed to keep his promise and dishonestlygot his name mutated in the records of property tax. The Courts belowhave rightly decided the matter after assessing the witnesses and takingthe Will into consideration and therefore the appeal at hand deserves tobe dismissed.

6. Now the short question that arises for consideration of thisCourt in this appeal is whether the Courts below were right in decreeingthe 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 inthe year 1945 and it was drawn in the own handwriting of the executanthimself. His handwriting was also duly proved by PW5—Nandlal Nagar,grandson-in-law of late Goverdhanlal, who used to correspond with himand thereby well acquainted with the handwriting of the testator. Theargument that the Will lacks credibility because the idea of bringing it onrecord was an afterthought of the respondent—plaintiff, that too afterfiling 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 loanfrom the Bank by pledging the Will in the year 1964 and since then theWill 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 onrecord, we do not find any suspicious circumstance surrounding thegenuineness of the Will.

8. Merely taking the ground that the name of appellant has alsobeen mutated in the municipal record and thereby he acquires right inthe property, cannot be given effect to in the absence of any cogentevidence in support of the claim. The record shows that prior to the AB

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Aaddition of his name in the municipal records, when the respondent’sname alone was there, the defendant—appellant had deposited the taxesin the name of plaintiff—respondent, and there was no material on recordto show how the name of appellant—defendant was added in themunicipal records. In our opinion, the Courts below have thoroughlyassessed the material evidences and accordingly came to the rightBconclusion. 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 suchcircumstances, we do not find any reason to disturb the concurrent findingsrecorded by the Courts below by reasoned judgments.

9. For all the aforesaid reasons, the appeal lacks merit and is,Ctherefore, dismissed with no order as to costs.

Nidhi Jain

Appeal dismissed.

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