NAUDHA ALIAS BIDHIA v. SUDARSHAN SINGH — 1997 DIGILAW 385 (HP)

JUDGMENT R.L KHURANA, J.— This regular second appeal has been directed by the plaintiff against the judgment and decree dated 19-5-1990 of the learned Additional District Judge (1), Kangra at Dharamshala, affirming the judgment and decree dated 27-9-1985 of the learned Sub-Judge 1st Class, Kangra. 2. The subject-matter of the dispute between the parties is the property detailed in para 2 of the plaint and hereinafter referred to as the property in dispute. 3. One Sikru was the owner of the property in dispute. He died on 3-5-1979. After his death the mutation of inheritance qua the property in dispute came to be sanctioned in favour of the two defendants on the basis of a will alleged to have been executed in their favour by the deceased Sikru on 2-1-1978. Admittedly, the two defendants respectively are the son and widow of the deceased. 4. The plaintiff claiming himself to be the son of the deceased filed a suit for declaration that on the death of Sikru, he had succeeded to the property in dispute along with the defendants to the extent of his share and is coming in possession thereof. It was averred that no will was executed by the deceased during his life time and the alleged will dated 2-1-1978 is forged and fabricated. It was further pleaded that the property in dispute was ancestral in the hands of the deceased. The parties and deceased are governed by custom in the matters of alienation and succession under which no will in respect of ancestral property can be executed. The will dated 2-1-1978, therefore, is otherwise illegal, null and void. Alternatively, it was pleaded that in case the plaintiff was found to be not in possession of the property in dispute, a decree for joint possession to the extent of his share be passed in his favour. 5. The defendants while resisting the suit denied the factum of plaintiff being the son of the deceased Sikru. It was pleaded that the defendants are the only legal heirs of the deceased. It was averred that property in dispute was not ancestral nor the parties and the deceased were governed by custom. 5. The defendants while resisting the suit denied the factum of plaintiff being the son of the deceased Sikru. It was pleaded that the defendants are the only legal heirs of the deceased. It was averred that property in dispute was not ancestral nor the parties and the deceased were governed by custom. It was further pleaded that the deceased during his life time while in a sound disposing mind had executed a valid will in favour of the defendants and they are coming in possession of the property in dispute as owners thereof under the will since after the death of the deceased Sikru. 6. On the pleadings of the parties, following issues were framed by the learned trial court: - 1. Whether the plaintiff is the son of Sikru deceased / OPP 2. Whether the plaintiff has got cause of action ? OPP 3. Whether the plaintiff is the owner in possession of the suit property as alleged ? OPP 4. Whether the suit is within time ? OPP 5. Whether the suit is properly valued for the purpose of court fee and jurisdiction ? OPP. 6. Whether the act and conduct of the plaintiff is a bar to the present suit ? OPD 7. Whether the suit property is ancestral qua the plaintiff and Sikru deceased ?OPP 8. Whether the plaintiff and Sikru deceased are governed by custom in matters of alienation if so what that custom is ? OPP 9. Whether Sikru deceased executed a valid will dated 2-1-1978 in favour of the defendants if so its effect ? OPD 10, Whether the will dated 2-1 -1978 is the result of mis-representation and fraud if so its effect ? OPP 11. Relief. Issue Nos. 1 to 3, 6, 7 and 10 were answered in the negative while issue Nos. 4, 5 and 9 were found in the affirmative. The learned trial Court came to the conclusion that plaintiff was not proved to be the son of the deceased. Property in dispute was held to be ancestral in the hands of the deceased. Parties and the deceased were found to be governed by custom in the matters of alienation and succession. Though the will was found to have been executed by the deceased in a sound disposing mind, the same was held to be null and void being contrary to the custom. Parties and the deceased were found to be governed by custom in the matters of alienation and succession. Though the will was found to have been executed by the deceased in a sound disposing mind, the same was held to be null and void being contrary to the custom. Consequent upon such findings, the suit of the plaintiff was dismissed by the learned trial Court vide judgment and decree dated 27-9-1985. The first appeal carried by the plaintiff was dismissed by the learned Additional District Judge (1), Kangra at Dharamshala, vide judgment and decree dated 19-5-1990. Ex. DW-2/A is the registered will dated 2-1-1978 alleged to have been executed by the deceased in favour of the defendants. 7. The challenge to the validity of the will on the ground of custom is no more available to the plaintiff in view of the ratio laid down by a Division Bench of this Court in Tek Chand and another v. Mool Raj and others, (1997) 3 Indian Civil Cases 576. It was been held that the customary law as to alienation by testamentary disposition stands abrogated by the provisions of Section 30 read with Section 4 of the Hindu Succession Act, 1956. 8. The execution of the will Ex. DW-2/A by the deceased Sikru in favour of the defendants stands proved by DW-2 Rasil Singh and DW-3 Sadhu Ram, the two attesting witnesses thereof. Both these witnesses have deposed that the will Ex. DW-2/A was executed by the deceased in favour of the defendants in their presence while in a sound disposing mind. The plaintiff while appearing as PW 1 has not denied the exeuction of the will by the deceased. He has merely pleaded ignorance with regard to the will having been executed by the deceased on 2-1 -1978 in favour of the defendants. 9. It has been contended on behalf of the plaintiff that the suspicious circumstances surrounding the execution of the will Ex. DW-2/A have remained unexplained by the defendants and as such the will Ex. DW-2/A cannot be held to be valid. The suspicious circumstances pointed out by the learned counsel for the plaintiff are : — (i) Deprivation of the natural heir by the testator; (ii) Absence of reasons for excluding the plaintiff from inheritance; and (iii) Non joining of local witnesses at the time of alleged execution of the will. DW-2/A cannot be held to be valid. The suspicious circumstances pointed out by the learned counsel for the plaintiff are : — (i) Deprivation of the natural heir by the testator; (ii) Absence of reasons for excluding the plaintiff from inheritance; and (iii) Non joining of local witnesses at the time of alleged execution of the will. The first circumstances pointed out by the learned counsel for the plaintiff cannot be treated as a suspicious circumstances. 10. The Apex Court in Rabindra Nath Mukherjee and another v. Panchanan Banerjee (Dead) by LRs. and others, 1995 (4) SLJ 2824 has held that deprivation of natural heirs is not by itself a suspicious circumstance because the whole idea behind execution of will is to interfere with the normal line of succession. Therefore, the natural heirs would be debarred in every case of will. It may be that in some cases such natural heirs are fully debarred while in some cases they may be debarred only partially. Replying on the above ratio of the Apex Court, the mere fact that the plaintiff, being a son and natural heir, was debarred from succession would not be a suspicious circumstance surrounding the execution of the will Ex. DW-2/A. Besides, it may be stated that the two courts below have concurrently held the plaintiff to be not the son of the deceased. This Court in Shakuntala Devi v. Savitri Devi, AIR 1997 HP 43 has held that under the law, no reasons are required to be given by a testator for disinheriting one or more of his natural legal heirs while making the will. Therefore, in the present case as well, failure on the part of the deceased to record reasons for dis-inheriting the plaintiff from succession would not render the will Ex. DW-2/A as( doubtful. 11. As stated above, DW-2 Rasil Singh and DW-3 Sadhu Ram are the two attesting witnesses of the will Ex. DW-2/A. DW-2 Rasil Singh is a resident and Nam-bardar of Jasaur, Tehsil Kangra, while DW 3 Sadhu Ram is a resident of village Mundla, Tehsil Kangra. The deceased was a resident of village Amkari, Tehsil Kangra. Admittedly, the two marginal witnesses of the will Ex. DW-2/A do not belong to the village of the deceased. 12. DW-2/A. DW-2 Rasil Singh is a resident and Nam-bardar of Jasaur, Tehsil Kangra, while DW 3 Sadhu Ram is a resident of village Mundla, Tehsil Kangra. The deceased was a resident of village Amkari, Tehsil Kangra. Admittedly, the two marginal witnesses of the will Ex. DW-2/A do not belong to the village of the deceased. 12. In Ishwar Dutt v. Smt. Leela Devi and others, 1997 (1) SLJ 684 a question aorse whether joining of attesting witnesses who did not belong to the village of the testator would be a suspicious circumstance. It was held that the mere fact that attesting witnesses are not from the village of the testator would not be a suspicious circumstance. 13. The High Court of Punjab and Haryana also in Tara Singh v. Smt Shanti and others, 1988 PLJ 77 has held that it is not by itself sufficient to disbelieve the witnesses or create any suspicion if the attesting witnesses of the will are not from the village of the testator. On the basis of evidence coming on the record, the two courts below have rightly held that the deceased had executed a valid will Ex. DW-2/A in favour of the defendants. The question whether the plaintiff is the son of the deceased or not loses its significance in view of the fact that will Ex. DW-2/A has been found to be valid. Therefore, this question need not be gone into. 14. Even otherwise, the two courts below have concurrently held the plaintiff to be not the son of the deceased Sikru. Such concurrent findings on a question of fact are not open to challenge in this second appeal. In arriving at such concurrent findings the two courts below have correctly read and appreciated the evidence coming on record. 15. Resultantly, there being no merit in the present appeal, the same is dismissed. The parties are, however, left to bear their own costs. Appeal dismissed.