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1991 DIGILAW 107 (HP)

BARU RAM v. KISHANI DEVI

1991-08-06

KAMLESH SHARMA

body1991
JUDGMENT Kamlesh Sharma, J.—In this Regular Second Appeal at the instance of the appellants-defendants, Baru Ram and three others, the decree and judgment dated 2-3-1991 passed by the Additional District Judge (I), Kangra at Dharamshala, is under challenge whereby the appeal of respondent-plaintiff, Smt. Kishani Devi, was accepted and the decree and judgment dated 17-1-1986 of sub-Judge 1st Class Dehra, District Kangra, was set-aside. By the impugned decree and judgment, the suit of Smt. Kishani Devi has been decreed. 2. Smt Kishani Devi had filed civil suit for declaration that the will alleged to have been executed by her husband, Sh. Balandu, in favour of S/Sh. Baru Ram and others was illegal and void and had no effect on her rights of inheritance. She further prayed for decree and declaration that she was owner in possession of the estate of her husband, Sh. Balandu, and S/Sh. Baru Ram and others may be restrained from interfering in her possession. S/Sh Baru Ram and others resisted this suit and took a number of preliminary objection. On merits, they alleged that the will executed in their favour by Sh. Balandu, who was their brother, was valid will. They claimed that Sh. Balandu had put thorn in possession during his life time, 3. The trial Court dismissed the suit holding, inter alia, that the will was proved to be executed in accordance with law and valid will. These findings were reversed by the District Judge in the appeal filed by Smt. Kishani Devi. Hence the present Regular Second Appeal. 4. I have heard the learned Counsel for the parties and gone through the record. There is finding of fact that the will Ex DW 6/A was shrouded in suspicious circumstances which S/Sh Baru Ram and others had failed to explain. The Additional District Judge found, on the appreciation of evidence on record, that there is no cogent reason to show that why Sh-Balandu, the testator, bad deprived his wife Smt Kishani Devi from inheritance of his estate and provided a meagre maintenance allowance of Rs. 100 per-mensem in the will. On the other hand, there is evidence on the record that both of them were living together till the death of Sh. 100 per-mensem in the will. On the other hand, there is evidence on the record that both of them were living together till the death of Sh. Balandu and were having cordial relations S/Sh Baru Ram and others have cot brought any evidence on record that they were serving Sh Balandu or after his death they performed his obsequies, The Additional District Judge has taken into account many more suspicious circumstances but out of them this is the most important In Kalyan Singh London Framed Cutter v. Smt. Chhoti and others, (1990) 1 SCC 266, it has been held that the circumstance depriving the natural heir, such as, wife, from inheritance by way of will creates serious doubt about its genuineness. The following observations of the Supreme Court in Para 20 of the judgment are relevant in the present case that the propounder of the will has failed to discharge their burden to explain the suspicious circumstances:— "It has been said almost too frequently to require re-petition that a will is one of the most solemn documents known to law The executant of the will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the Court to establish genuineness and the authenticity of the will. It must be stated that the factum of execution and validity of the will cannot be determined merely by considering the evidence produced by the propounder In order to judge the credibility of witnesses and disengage the truth from falsehood the Court is not confined only to their testimony and demeanour. It would be open to the Court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself It would be also open to the Court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party." 5. Sh. K D. Sood, learned Counsel for Sh. Sh. K D. Sood, learned Counsel for Sh. Baru Ram and others, has urged that since the will was registered, presumption of its correctness and genuineness arises in the facts and circumstances of the present case This argument deserves to be rejected outrightly in view of the law laid down in Gopai Das and another v. Sri Thakurji and other, AIR 1943 Privy Council 83, that even after the endorsement of Registrar made under section 60 (2) of the Registration Act is proved, it remains to be show that the person admitting execution before the Registrar was Balandue The registration of the will does not create any presumption of its genuineness, which is to be proved independently and statement of the Registrar is only a piece of evidence which is to be assessed to judge how far it proves that the execution of will is in accordance with section 63 of Indian Succession Act It is to be kept in mind that the Registrar cannot be statutory attesting witness. (Please refer to Karri Nokarajuv. Putra Venkatarao and otht-rs9 AIR 1974 And Pra 13 ; In the Goods of Late Shri C. Rai, Barrister-at law, 1980 RLR 346, Punjab and Haryana High Court; Labh Singh and others v. Piara Singh (deceased by L Rs ) and another, AIR 1984 P & H. 270 and Dharam Singh v. A. S. O and another, 1990 (Supp) SCC 684. 6. Sh. K D Sood, learned Counsel for Sh. Baru Rani and others has further urged that the impugned decree and judgment calls for interference on the ground that the Additional District Judge has misread and misconstrued the document Ex DW I/A. I find no substance in this submission as it is not a substantial question of law Moreover, the Additional District Judge has rightly held that it is not proved on record that Smt. Kishani Devi had knowledge regarding the facts mentioned in Ex, DW I/A. 7. In view of the above discussion, there is no merit in this appeal and it is dismissed in limine. Appeal dismissed.