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1999 DIGILAW 210 (HP)

SAWAN CHAND v. BHAGO DEVI

1999-10-07

D.RAJU

body1999
JUDGMENT D. Raju, C. J.: The above second appeal has been filed by the 1st defendant in Civil Suit No. 36/1 of 1990 on the file of the learned Subordinate Judge 1st Class (II), Paonta Sahib, District Sirmour, who lost before both the Courts below against the judgment and decree passed by the learned District Judge, Sirmour District at Nahan dated 1.6.1994 in Civil Appeal No. 26-N/13 of 1992, where under the learned First Appellate Judge has confirmed the judgment and decree passed by the learned trial Judge decreeing the suit filed by respondents No. 1 to 3 granting them the relief that the Will marked as Ex.DW-2/A is a false and fraudulent document and mutation attested thereon on 12.6.1989 marked as Ex.DW-3/A on the basis of such a Will is illegal and not binding on the rights of the plaintiffs. The plaintiffs claim before the trial Court was that they themselves as well as pro forma defendants No. 4 to 6 are the children of Hira Devi and, therefore, they become entitled to 1/6th share of the land measuring 11.15 Bighas comprised in Khata Khatauni No. 10/27 and 1/24th share of the land measuring 3.12 Bighas bearing Khasra No. 2S0 min and 269 min entered against Khata Khatauni No. 14/31 to 33 as per the Jamabandi for the year 1986-87 situated in village Majra, Paonta Sahib Tehsil, District Sirmaur, that the Will on the basis of which the 1st defendant set up his claim for claiming ownership of the share of Hira Devi said to have been executed by her on 12.6.1989 was illegal and void and had no consequence in law and, therefore, mutation attested pursuant to such a Will, will not confer any rights upon the 1st defendant. The alleged executant of the Will Smt. Hira Devi was said to have died on 29.5.1985 and the plea of the plaintiffs further is that she never executed any will during her life time and, therefore, the proforma defendants as well as the plaintiffs inherited the suit property as the heirs of late Hira Devi. The alleged executant of the Will Smt. Hira Devi was said to have died on 29.5.1985 and the plea of the plaintiffs further is that she never executed any will during her life time and, therefore, the proforma defendants as well as the plaintiffs inherited the suit property as the heirs of late Hira Devi. As noticed above, the sheet-anchor of the claim of the 1st defendant was based on the Will said to have been executed by Smt. Hira Devi with the further contention that one Rattan Chand son of Hira Devi was of unsound mind and he used to render services to her since the daughters got married and left with her husbands and in recognition of his services, the deceased executed the Will in his favour and, that, therefore, the Will as well as the mutation attested on the basis of the said Will in the revenue records in the presence of some of the parties themselves is valid and unassailable in law. 2. On the above claims and counter claims, the suit came to be tried. During the course of the trial, the 1st defendant who was obliged to prove the Will as was expected of a propounder when it is challenged appear to have examined only the scribe. On the basis of the materials placed by both the parties before the trial Court, the learned Judge has come to the conclusion that the due execution of the Will has not been proved in terms of Section 63 of the Indian Succession Act, 1925 and that the attestation of mutation by the revenue authority has to also fail and cannot confer any rights upon the 1st defendant. 3. Aggrieved, the 1st defendant filed an appeal before the District Court, which as indicated earlier, came to be dismissed by the learned First Appellate Judge concurring with the findings recorded by the learned trial Judge. It may be noticed at this stage that at the stage of the first appeal, the 1st defendant/appellant appears to have got examined AWs 1 and 2, who are said to be the attestators (marginal witnesses) to the Will. Unfortunately, for the appellant they did not support the case of the appellant nor their evidence could help him to prove the due execution of the Will. Hence, the apeal came to be also dismissed, necessitating the filing of the above second appeal. 4. Unfortunately, for the appellant they did not support the case of the appellant nor their evidence could help him to prove the due execution of the Will. Hence, the apeal came to be also dismissed, necessitating the filing of the above second appeal. 4. Mr. N.K. Thakur, learned Counsel appearing for the appellant while placing strong reliance upon the decisions reported in AIR 1940 Lahore 118 (Nisam-Ud-Din & Ors, v. Fathe Din & Ors.), AIR 1972 Patna 214 (Dulhin Ful Kueri & Anr. v. Moti Jharo Kuer), and AIR 1955 N.U.C. 4952 (Smt. Vidya Vati & Anr. v. Smt. Sita Rani & Ors.) contended that the records of enquiry pertaining to the attestation of mutation by the competent revenue authority and the statements recorded by the said authority before effecting change of mutation in the record was considered to be true and correct as also regular and that, therefore, the different stand taken by the parties as well as the witnesses before the civil Court cannot be and ought not be accepted and the Courts below ought to have rejected the same on the materials available on record with the revenue authorities which have been made available. The judgments of the Courts below, according to the learned Counsel for the appellant, suffer a serious infirmity in this regard, in over-looking this vital aspect. 5. Per contra, Mr. Kuldip Singh, learned Counsel for the respondents/plaintiffs contend that both the Courts below have, on or appreciation of the oral and documentary evidence on record, concurrently recorded a factual finding that the Will is not the one executed by late Smt. Hira Devi and that the due execution of the Will has also not been properly proved in terms of the requirement of law and this finding of fact concurrently recorded by both the Courts below cannot be said to suffer any infirmity, so as to warrant interference in the second appeal. It is also contended that the finding in question is one of pure fact in respect of which the appellant cannot claim or obtain any relief within the scope of Section 100 of the Code of Civil Procedure. 6. I have carefully considered the submissions of the learned Counsel appearing on either side. It is also contended that the finding in question is one of pure fact in respect of which the appellant cannot claim or obtain any relief within the scope of Section 100 of the Code of Civil Procedure. 6. I have carefully considered the submissions of the learned Counsel appearing on either side. Both the learned Counsel appearing on either side invited my attention to the relevant portions of the evidence on record and the judgments of the Courts below the support their respective stand point. In my view, there are absolutely no merits whatsoever in the second appeal. There can be no serious dispute or controversy with the position of law often declared and reiterated that it is the burden of the propounder of a Will, claiming any rights there under, when the same is challenged or disputed to prove the due execution of the same in terms of Section 63 of the Indian Succession Act, 1 1925 read with Section 68 of the Evidence Act, 1872. The material on record , as also the evidence let in does not in my view satisfy the requirements of law in the matter of proper proof of a Will when challenged before the civil Court. Before the trial Court, there appears to have been only an halfhearted attempt and even the further attempt said to have been made at the First Appellate stage also did not meet with the necessary requirement of law. While that be the position, is it permissible for the appellant to plead proof of his case by relying upon the materials in the form of statements said to have been recorded by the revenue authorities in the course of proceedings culminating in the attestation Of mutation of the revenue records. In my view, the so called proof, if any, which has been attempted by way of convincing the revenue authorities to act upon the Will by attesting mutation of the revenue records can be no substitute in law to do away or dispense with the mandatory obligation and the burden cast upon the propounder of the Will, claiming interest under the same, to prove when the execution of the Will is challenged, the due execution of the Will as enjoined in Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. The attestation effected in the revenue records cannot by itself or per se proof of title and if a challenge is made to the same in a suit before the civil Court seeking for declaration of title, the fact that the revenue authorities have attested mutation is my itself no answer. Unless the Will is duly proved and held to be a valid and duly executed one, the fate of the entries made in the revenue records has to share of the fate of the Will itself and once the Courts below have concurrently held that the Will have not been shown to have been duly executed by late Smt. Hira Devi, the revenue records alone cannot confer any title in the property to the 1st defendant. 7. On going through relevant reasons assigned by the Courts below, I am of the view that both the Courts below have properly adverted to all the evidence on record and appreciated them in their proper perspective and assigned cogent and convincing reasons to demonstrate that the Will could not have been executed, in the way it is claimed by the 1st defendant, by Smt. Hira Devi. This finding offset concurrently recorded by both the Courts below as rightly contended for the respondents cannot be lightly interfered with except for strong and compelling reasons and that too unless it is shown that the error which vitiated the finding, as such, involved substantial questions of law within the scope of Section 100 of the Code of Civil Procedure. It is by now well settled that even the possibility of a third opinion or a different opinion on the very facts is no justification for the second Appellate Court to interfere with such concurrent findings of fact. 8. For all die reasons stated above, I see no merit in the second appeal. The second appeal, therefore, fails and shall stand dismissed. No costs. The interim order dated 25.8.1994 passed in CMP No. 438/94, which was confirmed on 21.5.1998, shall stand vacated. Appeal dismissed.