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2000 DIGILAW 89 (HP)

GURDEV SINGH v. GULABOO

2000-04-24

R.L.KHURANA

body2000
JUDGMENT R.L. Khurana, J.—This regular second appeal has been directed by the defendant against the judgment and decree dated 6.5.1992 of the learned Additional District Judge (1), Kangra at Dharamshala, affirming the judgment and decree dated 17.9.1988 of the learned Sub Judge 1st Class, Dehra, passed in Civil Suit No. 316 of 1982. 2. The dispute between the parties pertains to the succession to the estate of one Mangtu son of Ghanaya who had died issueless in October/ November, 1981. Shri Mangtu was the owner to the extent of l/6th share in the land measuring 0-83-69 Hects. comprising of khata No. 65, Khatoni Nos. 250 to 253 (as detailed in jamabandi for the year 1977-78 Ex. P. 1 and hereinafter referred to as the land in dispute) of Mohal Manyala Upperla Tehsil Dehra in District Kangra. After the death of Mangtu, the land in dispute came to be mutated in favour of the defendant on 16.7.1983 on the basis of a will alleged to have been executed by the deceased in favour of the defendant on 8.10.1981. 3. S/Shri Gulaboo and Garibu, since deceased and the predecessors in interest of the present respondents (hereinafter referred to as the plaintiffs) claiming themselves to be the real brothers of the deceased Mangtu filed a suit, out of which the present appeal has arisen, claiming the following reliefs: (i) declaration to the effect that they are the only natural legal heirs of the deceased Mangtu and as such entitled to succeed to the land in dispute. The will on the basis of which mutation of inheritance was sanctioned in favour of the defendant is false and forged and not binding on their rights; (ii) in the alternative for possession of the land in dispute. 4. The plaintiffs averred that deceased Mangtu died issueless. No will was ever executed by him. Alternatively, it was pleaded that the land in dispute was ancestral in the hands of the deceased. The parties are governed by agricultural custom under which no ancestral property could be bequeathed. 5. The defendant while resisting the suit denied the ancestral nature of the land in dispute. Custom was also denied. No will was ever executed by him. Alternatively, it was pleaded that the land in dispute was ancestral in the hands of the deceased. The parties are governed by agricultural custom under which no ancestral property could be bequeathed. 5. The defendant while resisting the suit denied the ancestral nature of the land in dispute. Custom was also denied. It was pleaded that the deceased during his life time while in a sound disposing mind had executed a valid will in favour of the defendant, who was brought up by the deceased as a grand-son, in lieu of services rendered by him to the deceased. 6. On the pleadings of the parties, following issues were framed by the learned trial Court:— 1. Whether the suit in the present form is not maintainable? OPD. 2. Whether the plaintiff is estopped by his act and conduct from filling the suit? OPD. 3. Whether the suit is properly valued for the purposes of court fee and jurisdiction? OPP. 4. Whether the suit is bad for want of better particulars and if so it effect? OPD. 5. Whether the plaintiffs are owners in possession of the suit land? OPP. 6. Whether deceased Mangtoo executed a valid will in favour of the defendant on 8.10.1981? OPD. 7. Whether the will in question is false and fabricated document as alleged? OPP. 8. Whether the parties are governed by custom in the matters of succession and alienation and if so what that custom is? OPP. 9. Whether the suit land is ancestral qua the plaintiffs and deceased Mangtoo and if so its effect? OPP. 10. Relief. 7. The learned trial court found issues No. 1, 2, 4 and 6 against the defendant and issues No. 3, 5 and 7 in favour of the plaintiffs. Issues No. 8 and 9 were decided against the plaintiffs. Consequent upon such findings, the suit of the plaintiffs was decreed declaring them to be the owners and in possession of the land in dispute. As a consequential relief the defendant was restrained from interfering with the ownership and possession of the plaintiffs qua the land in dispute. The will dated 8.10.1981 was held to be invalid. 8. The learned Additional District Judge, in appeal by the defendant, upheld all the findings of the learned trial Court. The appeal was dismissed vide the impugned judgment and decree on 6.5.1992. 9. The will dated 8.10.1981 was held to be invalid. 8. The learned Additional District Judge, in appeal by the defendant, upheld all the findings of the learned trial Court. The appeal was dismissed vide the impugned judgment and decree on 6.5.1992. 9. It is not disputed that in view of the decision of the Division Bench of this Court in Tek Chand v. Mool Raj, 1997 (3) Current Civil Cases 576, no challenge can be laid to the validity of a Will on the ground of custom. It has been held that custom stands superseded by virtue of Sections 4 and 30 of the Hindu Succession Act, 1956. 10. Ex. DW 4/A is the Will alleged to have been executed by the deceased Mangtu in favour of the defendant on 8.10.1981. Mangtu had died on 11.10.1981, that is, just three days after the alleged execution of the Will. 11. Sarvshri Dhani Ram, Jhindu Ram, and Surender Pradhan Gram Panchayat, Garli, are stated to be the attesting witnesses of the Will Ex. DW 4/A, which is alleged to have been scribed by DW 4 Charan Dass. 12. It is well settled that the execution of the Will is to be proved by the propounder of the Will. Therefore, the onus to prove the Will Ex. DW 4/A was on the defendant being the propounder thereof. At the very outset, it may be stated that the two courts below have rightly held that the defendant has failed to discharge the onus to prove the due execution of the Will by the deceased in his favour. 13. DW 6, Surender, Pradhan of the Gram Panchayat Garli and one of the attesting witnesses of the Will, has deposed:— "When I reached there two-three persons were sitting. Mangtu then was in a semiconscious state. When I reached Ex. DW 4/A had already been scribed. I readover the whole of Ex. DW 4/A to Mangtu and enquired if it was correct or wrong. Mangtu kept on saying "HUN" and HAN". Thereafter I had signed Ex. DW 4/A as an attesting witness." 14. The above statement of DW 6 shows that the deceased was not in a sound disposing mind. There is also nothing in the statement of DW 6 to show that either the deceased Mangtu had put his thumb mark on Ex. Mangtu kept on saying "HUN" and HAN". Thereafter I had signed Ex. DW 4/A as an attesting witness." 14. The above statement of DW 6 shows that the deceased was not in a sound disposing mind. There is also nothing in the statement of DW 6 to show that either the deceased Mangtu had put his thumb mark on Ex. DW 4/A in his presence or that he (the deceased) had admitted the correctness of the Will in his presence. 15. Similarly, neither the scribe DW 4 Charan Dass nor the other attesting witness DW 5 Jhindu Ram has deposed that the deceased had admitted the correctness of the Will in their presence and/or had put the thumb mark thereon or that they had appended their signatures on Ex. DW 4/A as attesting witnesses in the presence of the deceased. 16. The two courts below have concurrently held that Will Ex. DW 4/A has not been proved to have been executed by the deceased. This Court in Hima Devi v. Marhaju Devi, RSA No. 265 of 1989, decided on 4.3.1997, has held that concurrent findings of the two courts below on a question of fact regarding execution of a Will cannot be challenged and interfered with in second appeal. 17. There is yet another significant aspect of the case. The defendant, who is the propounder of the Will has not cared to step into the witness box to depose in support of his case and to subject himself to cross-examination by the plaintiffs. It has been held by the Apex Court in Iswar Bhai C. Patel @ Bachu Bhai Patel v. Harihar Behera and another, 1999(2) Current Civil Cases 171 (SC), that if a defendant does not enter the witness box to make a statement on oath in support of the pleadings set out in the written statement, an adverse inference would arise that what he had stated in the written statement was not correct. In the present case as well as on the failure of the defendant to step into the witness box, an adverse inference will have to be drawn against him that no Will was executed in his favour. In the present case as well as on the failure of the defendant to step into the witness box, an adverse inference will have to be drawn against him that no Will was executed in his favour. Though the brother of the defendant has appeared as DW 1 as general attorney for the defendant, he cannot be treated as having appeared in the capacity of a defendant, his appearance is only as a witness in his personal capacity. See : Kanakpaudi Bharathi and another v. Authority under Section 50 of A.P. Shops and Establishment Act-cum-Labour Officer and another, 1993 (3) Current Civil Cases 302 (AP). 18. Resultantly, there being no merit in the appeal, the same is dismissed leaving the parties to bear their own costs. Appeal dismissed.