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2001 DIGILAW 33 (HP)

SANTOSH KUMARI v. VIJAY KUMARI

2001-03-10

K.C.SOOD

body2001
JUDGMENT 1. This second appeal arises out of the judgment and decree of learned District Judge, Solan, Camp at Nalagarh, dated 25-6-1998. Necessary facts : 2. The suit property was owned by one Paddu Ram. Paddu Ram had two sons, namely Kewal Krishan and Om Parkash. Kewal Krishan pre-deceased Paddu Ram. Paddu Ram expired on 21-10-1991. Plaintiffs are the legal heirs of Kewal Krishan. Plaintiffs filed a suit for declaration that they are the owner in possession of the suit property to the extent of half share. Plaintiffs also prayed for an injunction against the defendant Om Parkash now substituted by his legal representatives (appellants herein) from alienating or charging the nature of the land more than his share in the property. Case of the plaintiffs was that after the death of Kewal Krishan, plaintiffs looked after Paddu Ram, rendered all service to him, during his lifetime. Paddu Ram out of love and affection, executed a Will dated 19-9-1991 in favour of the plaintiffs and defendants of his entire property in equal shares. 3. Defendant Om Parkash contested the claim of the plaintiffs. Execution of the Will by Paddu Ram, as claimed by the plaintiff, was disputed. Defendant set up another Will, allegedly executed by Paddu Ram on 17-8-1991 in his favour bequeathing the entire property to him. It was claimed that as defendant Om Parkash was looking after Paddu Ram, therefore, due to natural love and affection he executed the Will in his favour, excluding the plaintiffs. The execution of the Will dated 7-8-1991 set up by the defendant was disputed. It was pleaded that if the Will was in fact executed, then it was procured by misrepresentation and exercise of undue influence by the defendant. It was also maintained that the Will dated 7-8-1991 has no force in law after the execution of the later Will by Paddu Ram. 4. Learned trial Judge settled several issues and found that Paddu Ram executed a valid Will, as claimed by the plaintiffs. Plea of the defendant that the Will set up by the plaintiffs was forged did not find favour with the trial Court. The Will set up by the defendant Om Prakash was rejected. The suit was decreed in favour of the plaintiffs. 5. Dissatisfied, defendant Om Parkash carried an appeal before the learned District Judge, which too was dismissed by the impugned judgment and decree. 6. The Will set up by the defendant Om Prakash was rejected. The suit was decreed in favour of the plaintiffs. 5. Dissatisfied, defendant Om Parkash carried an appeal before the learned District Judge, which too was dismissed by the impugned judgment and decree. 6. Still aggrieved, defendant/appellant Om Parkash is in second appeal. 7. I have heard Mr. G. D. Verma, Senior Advocate, assisted by Mr. Romesh Verma, learned counsel for the appellant and Mr. R. K. Gautam, learned counsel for the respondent. I have also been taken through the record by the learned counsel for the parties. 8. The appeal was admitted on the following substantial questions of law : 1. Whether the findings as recorded by both the Courts below are vitiated for want of proper appreciation and consideration of the pleadings of the parties and the material issues have not been framed and decided? 2. That the findings of both the Courts below are liable to be set aside for want of appreciation, consideration and discussion of the oral and documentary evidence? 3. That the Will set up by the respondent Ex. PW-2/A is neither valid nor the same has been proved in accordance with law? 4. Whether Ex. PW-2/A is surrounded by suspicious circumstances and the same is not genuine? 5. Whether Ex. DW 1/A is registered on 7-8-91 and is proved on record and the same is legal and valid? 6. Whether the respondents being out of the possession could not maintain the suit for declaration and injunction? 7. Whether the evidence produced by the respondents was inadmissible in evidence being beyond the pleadings and the evidence as produced being unreliable, interested and contradictory could not be relied upon? 9. Having heard the learned counsel for the parties the question which arises for consideration is whether the Will set up by the plaintiffs (Ex. PW-2/A) is visited by suspicious circumstances and the plaintiffs have not been able to remove such suspicion attached to this Will. 10. The learned first appellate Court after reappraisal of the evidence found that the Will was validly executed by Paddu Ram on 19-9-1991. Learned District Judge, referring to the testimony of the attesting witnesses Jagat Singh Chandel (PW-2) and Surender Kumar, Advocate, scribe of the Will (PW-3), concluded that the evidence led by the plaintiffs is reliable and acceptable and proved due execution of the Will in accordance with law. Learned District Judge, referring to the testimony of the attesting witnesses Jagat Singh Chandel (PW-2) and Surender Kumar, Advocate, scribe of the Will (PW-3), concluded that the evidence led by the plaintiffs is reliable and acceptable and proved due execution of the Will in accordance with law. According to the learned first appellate Court : "The Will as such is most natural document as fair distribution is made by Sh. Paddu Ram by giving half share to the plaintiffs and half share to the defendant. Even otherwise, they would have inherited Paddu Ram to that extent had there been no Will." 11. Mr. Verma, learned Senior Counsel for the appellants submitted : (a) that the Will set up by the plaintiffs (Ex. PW-2/A) is not genuine document as it is shrouded by suspicious circumstances, namely, it does not cancel the earlier Will of 7-8-1991 (Ex. DW-1/A) in favour of the defendants; (b) that both the trial Court and first appellate Court travelled beyond the scope of the pleadings; (c) that the Will was not reported at the earliest before the revenue authorities. 12. So far first contention of Mr. Verma is concerned, Will Ex. PW-2/A specifically records that the executant has not executed any other Will and if there eixsts any earlier Will, it would be deemed to be cancelled and this would be his last Will. This apart, I hardly need to emphasise that a Will can be revoked either expressly or impliedly. No particular form or expression is necessary for the revocation of a Will. It is settled law that later Will revokes all earlier Wills even though it may not contain a specific clause of revocation, provided that the subsequent Will is proved by clear and satisfactory evidence. It is always a question of the intention of the testator. If the testator unambiguously deals with the entire property, then it revokes all earlier Wills and if the later Will covers the same ground as earlier one, then it must be taken as a substitution for the earlier Will. The question whether earlier Will has been revoked or not is a question of fact. 13 It is noticed that the earlier Will was executed on 7-8-1991 which excluded the plaintiffs. The question whether earlier Will has been revoked or not is a question of fact. 13 It is noticed that the earlier Will was executed on 7-8-1991 which excluded the plaintiffs. Without going into the question whether this Will excluding the plaintiff was genuine or not, it will suffice to say that question of revocation of a Will is a question of fact and the Court in second appeal shall refrain from reappraising the evidence on record on this aspect particularly when both the trial Court and the first appellate Court found Will set up by the defendant Ex. DW-1/A to be suspicious. 14. Mr. Verma, learned Senior Advocate, then contended that the Courts below travelled beyond the scope of the pleadings. According to him, Will set up by the defendant was not challenged by the plaintiffs in the plaint and, therefore, the Courts could not have commented on the Will set up by the defendant. The contention is fallacious. 15. It is true that the Will set up by the defendant was not challenged in the plaint by the plaintiffs, obviously for the reason that they were not aware of the Will in favour of the defendant alone. However, when the defendant set up the Will in the written statement, the Will so set up was challenged in the replication filed by the plaintiffs. This replication indeed form part of the pleadings. Relevant part of the replication reads : "It is wrong that the deceased Paddu Ram had executed the alleged Will dated 7-8-1991 in favour of the defendant exclusively. The alleged Will dated 7-8-1991, if any, is wrong, illegal, null and void, invalid and the same is the result of misrepresentation, undue influence practised by the defendant in connivance with the scribe and attesting witness fraudulently, as the deceased never intended to bequeath his estate exclusively in favour of the defendant. On the other hand the deceased was having intention and wish to bequeath his entire estate equally in favour of the both the parties, and in execution of his said intention and wish, he executed his last, legal and valid Will on 19-9-1991 in favour of both the parties in equal shares. On the other hand the deceased was having intention and wish to bequeath his entire estate equally in favour of the both the parties, and in execution of his said intention and wish, he executed his last, legal and valid Will on 19-9-1991 in favour of both the parties in equal shares. Even otherwise the alleged Will dated 7-8-1991 had become unenforceable, void and invalid, since the deceased executed his last and legal and valid Will dated 19-9-1991 in favour of both the parties bequeathing his entire estate in equal share in favour of the both the parties, in case the defendant succeeds in producing any alleged Will dated 7-8-1991." 16. Mr. Verma, learned Senior Advocate, referring to Gurpal Singh v. Darshan Singh, 1998 (1) SLJ 174 submits that the Will executed in favour of the defendant was registered and registration raises presumption that the testator of the Will at the relevant time had sound disposing mind. This is not the question in issue. It was never the case of the plaintiffs that testator Paddu Ram was not of sound disposing mind. Ratio of this case does not take the case of the defendant any further. 17. Mr. Verma, learned Senior Advocate, for the appellants invited my attention to the Will Ex. PW-2/A. Perusal of which shows that Paddu Ram had signed not only as testator of the Will but also signed at the place where some typing error has been scored off, and contends that signatures in the middle of the paper would show that this paper was obtained by the plaintiffs for filing some pleadings in the Court and after his death it was used to forge the Will. I am afraid the contention is fallacious. As observed by the first appellate Court, signatures in the middle of the Will on the scored off typed lines represents the attestation of the cutting/scored off portion under signatures. Signatures, in my view, merely show that cutting or scoring off the typed lines was attested by Paddu Ram. Signatures on the cuttings or scored off portion would not ipso-facto lead to the conclusion that the Will is forged document. I notice that scribe of the Will Mr. Surinder Kumar (PW-3) was an Advocate. I have perused his testimony. Signatures, in my view, merely show that cutting or scoring off the typed lines was attested by Paddu Ram. Signatures on the cuttings or scored off portion would not ipso-facto lead to the conclusion that the Will is forged document. I notice that scribe of the Will Mr. Surinder Kumar (PW-3) was an Advocate. I have perused his testimony. Neither he nor the attesting witness was asked to explain the signatures of Paddu Ram on the scored off typed lines of the Will. The contention has no merit. 18. The last contention of Mr. Verma, learned Senior Advocate for the appellants, that the Will was not reported to the concerned revenue officer is equally untenable. Non-production of the Will before the Revenue Patwari cannot be said to be a suspicious circumstance. Learned first appellate Court as noticed that the Will was reported to the Patwari who took no action on this and, therefore, the suspicious circumstance is non-existent. In fact, responding to the suggestion of the defendant, in the cross-examination, plaintiff Vijay Kumari (PW-1) categorically stated that she had reported the Will to the Patwari though it is her evidence that she was not aware as to why the revenue officer did not call her for the attestation of the mutation. 19. The question whether a Will can be believed or not is a not a question of law. The High Court will not reappraise the evidence to ascertain whether Will should be believed or not. See Nalinakshi N. Rai v. Indira Shetty (1999) 9 SCC 248. 20. Mr. Verma, learned Senior Advocate, for the appellants referring to Major Singh v. Rattan Singh (dead) by LRs. (1997) 3 SCC 546 : (AIR 1977 SC 1906) contended that it is for the High Court to consider whether the reasons given by the Courts below are sustainable in law. In Major Singh, the suit was filed on the basis of the Will. The trial Court dismissed the suit. The judgment of the trial Court was affirmed in the first appeal. The High Court, in second appeal, allowed the appeal and decreed the suit on the basis of the Will. Before the High Court a contention was raised that the High Court could not interfere, under Section 100 of the Code of Civil Procedure, as the suspicious features of the Will were questions of facts and not the substantial question of law. Before the High Court a contention was raised that the High Court could not interfere, under Section 100 of the Code of Civil Procedure, as the suspicious features of the Will were questions of facts and not the substantial question of law. The Apex Court noticed that the question which arose for consideration was whether the Will was executed in normal circumstances. The trial Court and the first appellate Court relied heavily on two features, namely, (a) Will was not produced at the earliest point of time; (b) the attestors were disbelieved on the grounds that one of attestor had not disclosed that the Will was not executed when the mutation was effected in his presence. 21. The High Court after perusing the record found that there was no interpolation in the original Will. Therefore, both the trial Court and the first appellate Court illegally rejected the evidence of attesting witness Hari Singh. The only circumstance to reject his evidence was that the other attesting witness had filed a suit against Jeet Singh. This, observed the High Court, was hardly a ground to disbelieve the evidence of the attestator. In this context, their Lordships observed that the High Court rightly went into the reasoning of the trial Court as affirmed by the first Appellate Court and found that the reasons given by the trial Court and first appellate Court were flimsy. In other words what the Apex Court held was that reasoning for a finding without foundation would raise substantial question of law. 22. In the facts and circumstances of the case, no question of law much less a substantial question of law arises in this second appeal. 23. The question is accodingly answered. 24. There is no merit in this appeal and the same is dismissed with no order as to costs. Appeal dismissed.