DEEP RAM v. LAXMI NAND — 1999 DIGILAW 214 (HP)

JUDGMENT M.R. Verma, J.—This appeal has been preferred by the appellant-plaintiff (hereinafter referred to as the plaintiff) against the judgment and decree dated 12.11.1992 passed by the learned Additional District Judge, Shimla whereby the judgment and decree dated 3.11.1988 passed by the learned Sub-Judge 1st Class (2), Shimla dismissing the suit of the plaintiff has been affirmed. 2. Brief facts leading to the presentation of this appeal are as follows : 3. The plaintiff instituted a suit for declaration that he is the owner in possession of land comprising Khasra No. 704/663/4 measuring 19 bighas 18 biswas to the extent of l/6th share thereinafter referred to as the suit land) with consequential relief of permanent injunction restraining the respondents-defendants {hereinafter referred to as the defendants) from creating charge on or transferring/ alienating the l/6th share of the plaintiff in the suit land and for joint possession to the extent of the claimed share. Case of the plaintiff, as made out in the plaint, is that in the year 1956, the plaintiff and his father Budhi Ram were the only male members of Hindu Undivided Family (hereinafter referred to as the HUF) of which Budhi Ram was the Karta. The mother of the plaintiff had died and the plaintiff became major in the years 1955-56. Said Budhi Ram then married proforma respondent-defendant No. 5 (hereinafter referred to as the proforma defendant) and respondents-defendants 1 to 4 (hereinafter referred to as the defendants) were born after the year 1955-56. Plaintiff was residing with said Budhi Ram till 1965-66 and whatever his earning, he used to pay it to said Budhi Ram as they were living jointly and with such earning of the HUF, the suit land was purchased by the plaintiff and said Budhi Ram from one Bashisht Chand in the year 1955-56 for a consideration of Rs. 1000/ - in the name of said Budhi Ram being the karta of the Family, though being a member of the HUF plaintiff-had 1/2 share in the suit land at the time of its purchase. Subsequently, defendants having taken birth in the HUF acquired ownership in the suit land and, thus, the plaintiffs share in the property came to be l/6th. The proforma defendant being step-mother of the plaintiff had a hostile attitude towards him. Subsequently, defendants having taken birth in the HUF acquired ownership in the suit land and, thus, the plaintiffs share in the property came to be l/6th. The proforma defendant being step-mother of the plaintiff had a hostile attitude towards him. Therefore, the plaintiff was ultimately compelled to live separately whereas Budhi Ram and the defendants continued to enjoy the benefits out of the suit land. Budhi Ram sold about 8 or 9 bighas of land out of the suit land without the consent of the plaintiff and without his knowledge and he came to know about such sale in the first week of November, 1985. The suit land, however, has not been partitioned as yet and continues to be joint. Budhi Ram, taking advantage of the absence of the plaintiff from the family and under the influence of proforma defendant and the defendants, executed a Will in favour of the defendants on 18.12.1980 which was registered on 16.3.1981. In the said Will, Budhi Ram being under the influence and pressure of the defendants and proforma defendant, in ailing and aged position, stated that the land in question is his self acquired property without making any reference to the plaintiff. It is thus claimed that a perusal of the Will will prima-facie disclose that the same is not genuine and legal and even otherwise said Budhi Ram could not bequeath the share of the plaintiff in the suit land without his consent nor could he exclude the plaintiff from his vested rights to the extent of l/6th share in the suit land. It is also claimed that the transfer which Budhi Ram had made is not binding on the plaintiff and is null and void. It is further the case of the plaintiff that on the basis of the said Will, a mutation of the suit land has been attested in favour of the defendants and the defendants are taking undue advantage of the wrong and illegal Will and the said mutation and are threatening to transfer the suit land or in any other manner alienate or create charge so as to forfeit the claim of the plaintiff which they have no right, title or interest to do. Even if the Will is held to be a valid and genuine, said-Budhi Ram could bequeath only his l/6th share of the suit land and not the share of the plaintiff which he has acquired by virtue of his being the member of the HUF at the time of acquisition of the suit property. Hence the present suit. 4. The defendants contested the suit. In their written statement, they raised preliminary objections that the suit is bad for non-joinder of necessary parties; that it is not properly valued for the purposes of Court fee and jurisdiction and the plaintiff is estopped from filing the suit due to his acts, conduct and acquiescence. On merits, while admitting the plaintiff to be the son of Budhi Ram from his first wife, the defendants denied the existence of the alleged HUF and that the plaintiff resided with Budhi Ram till 1965-66. It has also been denied that the earnings of the plaintiff were joint with Budhi Ram or that he used to give his earnings to said Budhi Ram or was helping him in any manner. It has also been denied that the suit property was purchased out of the alleged earnings/income of the alleged HUF or that the plaintiff was in any manner instrumental in purchasing it or that he had any share therein. The claim in the plaint that the property is coparcenary has also been denied as baseless and false. It has been claimed that Budhi Ram was in the employment of agriculturists near Kasumpti and out of his personal savings he purchased mules and after selling them, buffaloes were purchased by him and he used to sell the milk and the suit property was purchased by him out of his personal income. The plaintiff joined service in or about 1958 and was married in the year 1961 and left the house in the year 1961 whereafter he never resided with Budhi Ram and did not make any contribution. Rather he had refused to make any contribution. Out of his own savings, he acquired separate property in village Godhan, Teh. Arki and had been residing separately, keeping no concern with Budhi Ram. It has further been claimed that said Budhi Ram, during his life time, on 18.12.1980 bequeathed his self acquired property situate in Chak Chamiana in favour of the defendants and the Will was duly executed and registered. Arki and had been residing separately, keeping no concern with Budhi Ram. It has further been claimed that said Budhi Ram, during his life time, on 18.12.1980 bequeathed his self acquired property situate in Chak Chamiana in favour of the defendants and the Will was duly executed and registered. He died on 15.9.1985 and on the basis of the Will, the mutation was entered in the name of the defendants who are the absolute and exclusive owners of the estate of said Budhi Ram situate in village Chamiana to the exclusion of the plaintiff. The allegations of the Will having been procured under the influence or pressure have been denied and it has been asserted that the plaintiff has no right, title or interest in any part of the suit property and Budhi Ram was within his rights to make the Will. Hence the claim of the plaintiff has been denied as a whole. 5. Plaintiff filed replication wherein the grounds of defence as taken in the written statement were denied and the averments as made in the plaint were re-affirmed. 6. On the pleadings of the parties, the learned trial Judge framed the following issues ; 1. Whether the plaintiff is entitled for declaration? OPP. 2. Whether the plaintiff is entitled for the relief of injunction as prayed? OPP. 3. Whether the Will dated 18.12.1980 is a genuine and valid Will. If so, its effect? OPD. 4. Whether the suit is bad for non-joinder of necessary parties? OPD. 5. Whether the suit has been properly valued for the purposes of court fee and jurisdiction? OPP. 6. Whether the plaintiff is estopped from filing the present suit due to his own acts,, conduct and acquiescence? OPD. 7. Whether the suit property has been purchased out of the income of HUF and the plaintiff is entitled to l/6th share. If so, its effect? OPP. 8. Relief. 7. Vide his judgment dated 3.11.1988, the learned trial Judge decided issue Nos. 1, 2 and 7 against the plaintiff, issue No. 5 in favour of the plaintiff and issues 3 and 4 in favour of the defendants and the remaining issues against the defendants and consequently dismissed the suit. 8. Feeling aggrieved, the plaintiff preferred an appeal which was dismissed by the learned Additional District Judge, Shimla by the impugned judgment. Hence the present appeal. 9. 8. Feeling aggrieved, the plaintiff preferred an appeal which was dismissed by the learned Additional District Judge, Shimla by the impugned judgment. Hence the present appeal. 9. I have heard the learned Counsel for the parties and have also gone through the records. 10. This appeal has been admitted for hearing on the following substantial questions of law: "1. Whether Exhibit PW-2/A is not a legal and valid document the same being surrounded by suspicious circumstances? 2. Whether document Exhibit DW/2/A alleged Will has not been executed in accordance with law and the same deserves to be ignored for want of proper proof of its execution? 3. Whether Exhibit DW/2/A is illegal and void document and the same has been produced by mis-representation of facts and by exercising undue influence?" 11. The learned Counsel for the plaintiff has pointed out the following circumstances which, according to him, are suspicious and render the Will Ext. DW-2/A as invalid and illegal: (i) That the name of plaintiff who is son of the testator is not mentioned in the Will at all; (ii) That there is no mention of the property owned by the testator in village Kharasi; (iii) That there are material contradictions in the statements of the attesting witnesses; (iv) That the beneficiary took active part in bringing about the Will; and (v) That the testator was an old and ailing person and it was due to mis-representation and undue influence of the beneficiaries and their mother who is the step mother of the plaintiff that the Will was got executed. 12. Be it stated that there are concurrent findings of the two Courts below regarding due execution of the Will Ext. DW-2. A which has been held to be legal and valid by both the Courts. The question of execution of the Will is a question of fact and ordinarily such findings are not to be interefered with in second appeal. 13. Budhi Ram, testator owned land in village Kharasi which, admittedly, was ancestral property. In the said property the plaintiff admittedly inherited the share he was entitled to. Had it been intended by the testator or by those under whose influence said Sant Ram is alleged to be at the relevant time, the plaintiff could be divested of inheriting any share in that property also. In the said property the plaintiff admittedly inherited the share he was entitled to. Had it been intended by the testator or by those under whose influence said Sant Ram is alleged to be at the relevant time, the plaintiff could be divested of inheriting any share in that property also. However, it was left open for the plaintiff to inherit his share in the property in village Kharasi by way of succession in due course of law. He has, however, not been given any share what-so-ever in the land owned by the testator in village Chamyana. Evidently, he has not been referred to in the Will Ext. DW-2/A nor there is any reference in the Will about the landed property of Budhi Ram, testator in village Kharasi. The facts as stated here-in-above, make it sufficiently clear that the testator wanted to bequeath the land in village Chamyana to the defendants only. The reason for doing so are reflected in the Will itself. It has been mentioned therein that the legatees had been rendering all services to the testator including financial help and had also helped in the development of the land bequeathed to them. Thus, evidently reason has been assigned as to why the landed property in Chamyana was bequeathed to the defendants. Even the daughters and wife of the testator were not given any share in that land. The property in village Kharasi has been left out of the scope of the Will evidently with a view that it could be inherited by the legal heirs as per the law relating to normal succession. The law does not require that a Will in respect of a part of the property owned by the testator in favour of a few of his legal heirs excluding others must contain the details of all the legal heirs and of the entire property owned by him. Omission of some thing not required to be done under the law, cannot be a suspicious circumstance. Therefore, not giving details of the land owned by the testator in village Kharasi and not making any reference to the plaintiff in the Will Ext. DW-2/A cannot be treated suspicious circumstance. 14. It was contended by the learned Counsel for the plaintiff that there are material contradictions in the statements of the witnesses rendering the execution of the Will highly suspicious. DW-2/A cannot be treated suspicious circumstance. 14. It was contended by the learned Counsel for the plaintiff that there are material contradictions in the statements of the witnesses rendering the execution of the Will highly suspicious. The contradictions pointed out are that DW-3 Jai Ram, one of the marginal witnesses, has stated that he was called by Budhi Ram (the testator) regarding execution of a Will and Gita Ram (PW-6) the other attesting witness of the Will) was already there, whereas according to PW-6 Gita Ram, Jai Ram was already present with the testator and Petition Writer when he reached there. The contradiction as pointed out is of insignificant nature. The Will Ext. DW-2/A was executed on December 18, 1980. The statements of the aforesaid witnesses were recorded in the later half of the year 1988, i.e. after more than seven-and-a-half years of the execution of the Will. Primarily no one cares to notice and remember minute details of acts performed in ones presence. Only the main actions are usually kept in view and are likely to be remembered for a longer span of period. Secondly, with the passage of time, memory fades and with the lapse of time one cannot be expected to give photographic version of events. The intervening period of more than seven-and-a-half years between the execution of the Will and the statements made, in itself is sufficient to explain the reason for such petty contradictions. Therefore, the minor contradictions of the nature as aforesaid, cannot be treated a suspicious circumstance in disbelieving the statements of the witnesses and suspecting the genuineness of the Will. 15. What emerges from the evidence is that DW-1 Laxmi Nand, one of the beneficiaries under the Will, was present at the time of execution of the Will. A perusal of the statement of DW-1 Laxmi Nand shows that no overt act has been imputed to him by way of/ suggestion in his cross-examination regarding his taking part in the execution of the Will. It appears that he accompanied his father, the testator, to the place where the Will was scribed. Mere accompanying the testator by the beneficiary son as aforesaid, cannot be a suspicious circumstance because the help of near relations can only be requisitioned for enabling one to execute a Will and such help cannot be solicited from strangers. 16. It appears that he accompanied his father, the testator, to the place where the Will was scribed. Mere accompanying the testator by the beneficiary son as aforesaid, cannot be a suspicious circumstance because the help of near relations can only be requisitioned for enabling one to execute a Will and such help cannot be solicited from strangers. 16. The testator at the time of execution of the Will was 70 years of age as mentioned in the Will Ext. DW-2/A. According to DW-1 Laxmi Nand, the age of the testator at that time was about 73 or 74 years. PW-1 Sant Ram, plaintiff has stated that age of the testator at the relevant time was 80 years and his physical and mental condition was not such in which a Will could be executed. There is no clinching evidence about the exact age of the testator at the relevant time. It is admitted by DW-4 Dharma Nand that the testator was suffering from blood pressure and urinary trouble. Despite the age and ailment, what is to be ascertained is whether the testator at the time of making the Will was of sound disposing mind capable of knowing the nature and effect of his acts? There is solitary statement of PW-1 Sant Ram to support the contention that at the time of execution of the Will the testator was not in a mental state in which Will could be validly executed. No reliance can be laid on this statement for more than one reason. Primarily, the plaintiff has been residing separately from his father, the testator. Though he has denied the suggestion that he separated from his father after his marriage in 1961, but it is implicit in his saying that even after 1961 he used to go to his father. DW-4 Hari Nand has specifically stated that after joining the service (which the plaintiff admittedly did in the year 1959), the plaintiff left the house of his father and after his marriage, he never went to the house of the testator. Thus, the plaintiff had been residing separately from the testator for a long time at the time of execution of the Will. Therefore, he cannot be said to have appropriate knowledge about the mental condition of the testator. Thus, the plaintiff had been residing separately from the testator for a long time at the time of execution of the Will. Therefore, he cannot be said to have appropriate knowledge about the mental condition of the testator. Secondly, DW-1 Laxmi Nand, DW-2 Kangru Ram, DW-3 Jai Ram and PW-6 Gita Ram have stated that at the time of the execution of the Will, the testator was in proper state of mind and health. Hence the statement of the plaintiff about the physical and mental conditions of the testator at the relevant time cannot be accepted as correct. 17. It is a question of fact whether the testator was under the influence of the beneficiaries under the Will and their mother or not. Both the Courts below have given concurrent findings on this score in the negative which are based on the material on record. There is no cogent and reliable evidence on the record to prove that the testator was under the influence of the beneficiaries and their mother. On the contrary, the plaintiff has clearly and unambiguously admitted in his cross-examination that his father had executed the Will because he was pleased with the services rendered to him by the defendants. If so, there is no question of any undue influence. 18. There is not even an iota of evidence nor it is pleaded case of the plaintiff that the Will came into being due to the alleged mis-representation. 19. It was contended for the plaintiff that the Will has not been properly executed and attested and deserves to be ignored for want of proper proof. The emphasis is laid by the learned Counsel for the plaintiff on the statement of PW-6 Gita Ram, one of the attesting witnesses, given up by the defendants, but examined in rebuttal by the plaintiff. He has stated that he was called by Kangru Ram (DW-2) saying that he was to attest the signatures of Budhi Ram (the testator) and that thereafter Budhi Ram signed and he also signed. He has however, stated that the document signed by him and Budhi Ram was not read over to them and Jai Ram (DW-3) though was sitting there but he did not sign the Will in his presence. These facts as stated by PW-6 Gita Ram, according to the contention for the plaintiff, render the Will not properly executed, attested and proved. These facts as stated by PW-6 Gita Ram, according to the contention for the plaintiff, render the Will not properly executed, attested and proved. The learned Counsel to substantiate his contention, has relied on Jaswant Kaur v. Amrit Kaur and others, 1978 SLJ 2 Reports (S.C.); Hira Devi and others v. Smt. Himi and others, (1989 SLJ 363) and Brij Mohan Sharma v. The General Public and others, (1985 SLJ 161). 20. In case Jaswant Kaur v. Amrit Kaur and others (supra), the Honble Supreme Court, while dealing with the due execution of Will and onus to prove it, has held as under : "10. There is a long line of decisions bearing on the nature and standard of evidence required to prove a Will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v. B.N. Thimmajamma and others, (1959) Supp. 1 S.C.R. 426. The Court, speaking through Gajendragadkar, J., laid down in that case the following propositions : (1) Stated generally, a Will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of Wills, one cannot insist on proof with mathematical certainty. (2) Since Section 63 of the Succession Act requires a Will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. (3) Unlike other documents, the Will speaks from the death of the testator and therefore the maker of the Will is never available for deposing as to the circumstances in which the Will came to be executed. The aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the Will. The aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the Will. (4) Cases in which the execution of the Will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit and such other circumstances raise suspicious about the execution of the Will. That suspicion cannot be removed by the mere assertion of the propounder that the Will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the Will was made, or that those like the wife and children of the testator who could normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the Will excite the suspicion of the Court, the propounder must remove all legitimate suspicious circumstances before the document can be accepted as the last will of the testator. (5) It is in connection with Wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the Court is the last Will of the testator, the Court is called upon to decide a solemn question and by reason of suspicious circumstances the Court has to be satisfied fully that the Will has been validly executed by the testator. (6) If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may raise a doubt as to whether the testator was acting of his own free will. (6) If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may raise a doubt as to whether the testator was acting of his own free will. And when it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter." 21. In case Hira Devi and others v. Himi and others (supra) this Court held as under : "14. Way back in the year 1958 it was held by the Supreme Court in H. Venkatachala Iyengarv. B.N. Thimmajamma and others, (A.I.R. 1959 SC 443), that the proof of a Will requires fulfilment of the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. Also, that the provisions of Section 68 of the Indian Evidence Act are also to be satisfied. Their lordships of the Supreme Court exhaustively dealt in this decision with the various aspects touching the proof of the execution of a Will. This decision has been consistently followed by the Supreme Court in its later decisions. What Section 63 of the Indian Succession Act, 1925, provides is that : "63. Execution of unprivileged Wills.—Every testator, not being a soldier employed in an expedition or engaged in actual warfare or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules: (a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary." 22. In case Brij Mohan Sharma v. The General Public and others (supra), Punjab and Haryana High Court has held as under: "7......Section 63(c) of the Indian Succession Act lays down the method and manner of executing a Will. One of its essential requirements is that "the Will shall be attested by two or more witnesses each of whom has seen the testator sign or affix his mark to the Will........or has received from the testator a personal acknowledgement of his signature or mark.... Each of the witnesses shall sign the Will in the presence of the testator." As already pointed out, none of the attesting witnesses examined has stated that either the deceased had signed the Will in their presence or they had sought his acknowledgement in this regard prior to their signing the Will." 23. The two of the attesting witnesses of the Will have been examined in the case. One of them, namely, Jai Ram (DW-3) was examined by the defendants and the other, namely, Gita Ram (PW-6) had been examined by the plaintiff. DW-3 Jai Ram has fully supported the execution and attestation of the Will. PW-6 Gita Ram has also stated that the Will was signed by the testator and by him. He has further stated that the Will was not read over nor was signed by Jai Ram (DW-3) in his presence. The statement of DW-2 Kangru Ram, the scribe, corroborates what DW-3 Jai Ram has stated. PW-6 Gita Ram has also stated that the Will was signed by the testator and by him. He has further stated that the Will was not read over nor was signed by Jai Ram (DW-3) in his presence. The statement of DW-2 Kangru Ram, the scribe, corroborates what DW-3 Jai Ram has stated. Thus, the fact that the Will was signed by the testator in the presence of the attesting witnesses and the scribe and was attested by the witnesses, is fully established in view of these statements. In case it was not signed by Jai Ram (DW-3) within the view of Gita Ram that does not render it invalid. The legal requirement is that the testator should sign or mark the Will in the presence or to the knowledge of the attesting witnesses. However, the attesting witnesses need not sign the Will in the presence of each other. It is also not necessary that the Will must be read over to the attesting witnesses or they should know the contents thereof, (See: Shakuntla Devi v. Savitri Devi and others, (ILR 1996 HP 366). 24. It has already been held here-to-fore that there is no suspicious circumstance surronding the Will. 25. The concurrent findings recorded by the Courts below are thus based on correct appraisal of evidence on the record and do not call for any interference by this Court. 26. As a result the appeal fails and is accordingly dismissed. Costs on parties.