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2001 DIGILAW 658 (PNJ)

Sidhi Ram v. Ram Asra alias Ram Asru

2001-07-05

M.L.SINGHAL

body2001
JUDGMENT M.L. Singhal, J. - Sidki Ram son of Bhagat Singh alias Bhagtoo, resident of village Chanouli, Police Station, Nurpur Bedi, Tehsil Anandpur Sahib, District Ropar, filed a suit for declaration against his brother Ram Asra alias Ram Asru to the effect that he is joint owner/co-sharer in possession to the extent of 1/2 share of total land measuring 22 kanals 17 marlas as detailed in the heading of the plaint, i.e. (i) land measuring 15 kanals 2 marlas situated in village Gajjpur, (ii) land measuring 5 kanals 10 marlas situated in the area of village Shekhpur, and (iii) land measuring 2 kanals 5 marlas situated in the area of village Chanouli, and that the alleged will dated 9.4.1991 purported to have been executed by Bhagat Singh, their father and predecessor-in-interest of the parties, in respect of part of the suit property measuring 2 kanals 5 marlas, situated in the revenue estate of village Chanouli described in (iii) in the heading of the plaint, in favour of the defendant Ram Asra alias Ram Asru is illegal, forged and fabricated, unnatural, highly improbable and is surrounded by highly suspicious circumstances and the defendant cannot claim any exclusive right, title or interest whatsoever in any part of the suit property measuring 22 kanals 17 marlas as detailed in (i), (ii) and (iii) of the heading of the plaint and with consequential relief of permanent injunction restraining the defendant from forcibly dispossessing him from any part of the suit land measuring 22 kanals 17 marlas as also restraining him from alienating or selling any part of the suit property and also from cutting and removing the trees standing in the suit property. It is alleged in the plaint that he is the joint owner/co-sharer in possession to the extent of 1/2 share of the entire suit land measuring 22 kanals 17 marlas situated in villages Gajjpur, Shekhpur and Chanouli. Remaining half share belongs to the defendant. Previously, the land in suit was exclusively owned and possessed by their father Bhagat Singh alias Bhagtoo. On the death of their father in the month of December, 1993, the entire property left behind by him including the suit land was inherited by him and the defendant in equal shares by way of natural succession being the only legal and natural heirs of Bhagat Singh who died intestate without making any testamentary disposition of his property. On the death of their father in the month of December, 1993, the entire property left behind by him including the suit land was inherited by him and the defendant in equal shares by way of natural succession being the only legal and natural heirs of Bhagat Singh who died intestate without making any testamentary disposition of his property. Bhagat Singh during his life time was looked after and nourished by the plaintiff and the defendant. Funeral rites of their father were performed by both of them. Bhagat Singh was equally disposed towards him and, thus, there was no occasion for Bhagat Singh to deprive him of his bounties including his interest in the suit property. Defendant in conspiracy with scribe Kewal Krishan and Sohan Singh and Hardev Singh, marginal witnesses, forged and fabricated a will dated 9.4.1991 with respect to the suit land measuring 2 kanals 5 marlas bearing khasra No. 32R/20/1(1-12), 89(0-13), situated in village Chanouli. The said will was never executed by Bhagat Singh. The said will is the result of forgery and fabrication and it is quite unnatural, highly improbable and is surrounded by highly suspicious circumstances. Defendant in conspiracy with the revenue officials and at the back of the plaintiff got entered and sanctioned mutation No. 1306 in respect of the land measuring 15 kanals 2 marlas, i.e. the land as detailed in sub-heading (i) of the plaint and similarly got entered mutations with respect to rest of the suit property which are still pending before the Assistant Collector Ist Grade, Anandpur Sahib as being contested mutations. Defendant Ram Asra alias Ram Asru contested the suit urging that the entire land in suit measuring 22 kanals 17 marlas devolved upon him on the basis of the registered will dated 9.4.1991 executed by Bhagat Singh in his favour while in sound disposing mind. The plaintiff never came in possession of the property in suit nor the defendant ever allowed him to come in possession of any part of the property in suit, title or interest in the land in suit. Bhagat Singh, during his life time, was looked after and nourished by him (defendant). The plaintiff never rendered any service to Bhagat Singh. He did not attend the funeral rites of Bhagat Singh. Funeral rites of Bhagat Singh were performed solely by him. Bhagat Singh was not disposed towards the plaintiff with love and affection. Bhagat Singh, during his life time, was looked after and nourished by him (defendant). The plaintiff never rendered any service to Bhagat Singh. He did not attend the funeral rites of Bhagat Singh. Funeral rites of Bhagat Singh were performed solely by him. Bhagat Singh was not disposed towards the plaintiff with love and affection. The plaintiff did not call Bhagat Singh at the time of the marriage of his daughters which he performed in Himachal Pradesh. The plaintiff had strained relations with Bhagat Singh. The plaintiff never came to village Chanouli during the last 18/20 years. Bhagat Singh while in sound disposing mind, executed registered will dated 9.4.1991 in favour of the defendant in respect of the property owned by him in villages Gajjpur, Shekhpur and Chanouli. It was denied that the will relates to the property of village Chanouli only. On the pleadings of the parties, the learned counsel trial court framed the following issues :- "1. Whether the plaintiff is joint owner in the suit land to the extent of 1/2 share as detailed in the head note of the plaint ? OPP 2. Whether defendant is in possession of the property as owner on the basis of registered will dated 9.4.1991 as alleged ? OPD 3. Whether the plaintiff is estopped by him act, and conduct ? OPD 4. Relief." Vide order dated 22.4.1996, the plaintiffs suit was decreed qua the land of villages Gajjpur and Shekhpur detailed in sub-heading (i) and (ii) of the heading of the plaint and he was held to be joint owner in possession of the property situated in villages Gajjpur and Shekhpur with the defendant in equal shares and the defendant Ram Asra alias Ram Asru was held to be the exclusive owner and in possession of the property situated in village Chanouli, fully detailed in sub-heading (iii) of the heading of the plaint. It was found by the learned trial Court that the will dated 9.4.1991 was executed by Bhagat Singh in sound disposing mind and the same relates only to the property situated in village Chanouli and it is totally silent with regard to the properties situated in villages Gajpur and Shekhpur. Aggrieved by this judgment and decree dated 22.4.1996, Ram Asra alias Ram Asru, since deceased, represented by his L.Rs., filed appeal (Civil Appeal No. 142 of 25.5.1996). Aggrieved by this judgment and decree dated 22.4.1996, Ram Asra alias Ram Asru, since deceased, represented by his L.Rs., filed appeal (Civil Appeal No. 142 of 25.5.1996). Aggrieved by the judgment and decree dated 22.4.1996, Sidki Ram filed appeal (Civil Appeal No. 102 of 25.5.1996). Vide common order dated 19.3.1999, the learned Additional District Judge, Ropar, decided both these appeals. He allowed Civil Appeal No. 142 of 25.5.1996, filed by Ram Asra Alias Ram Asru, and dismissed Civil Appeal No. 102 of 25.5.1996 filed by Sidki Ram. He held that the will had been validly executed by Bhagat Singh alias Bhagtoo while in sound disposing mind in favour of Ram Asra alias Ram Asru qua the properties owned by him in villages Gajjpur, Shekhpur and Chanouli. He set aside the finding of the trial Court this will related only to the property situated in village Chanouli. Aggrieved by the judgment and decree dated 19.3.1999 of the Additional District Judge, Ropar, whereby he has allowed Civil Appeal No. 142 of 25.5.1996 titled Ram Asra alias Ram Asru versus Sidki Ram, and held the will, Exh. D-1, to have been executed by Bhagat Singh alias Bhagtoo in respect of his properties situated in villages Gajjpur, Shekhpur and Chanouli and dismissed Civil Appeal No. 102 of 25.5.1996 titled Sidki Ram versus Ram Asra alias Ram Asru, since deceased, represented by his LRs, Sidki Ram has filed the two appeals; represented by his LR, Sidki Ram has filed the two appeals; namely, RSA Nos. 2457 and 2458, of 1999, whereby he has prayed that the judgments/decrees of both the courts below be set aside and the plaintiffs suit be decreed for declaration that he is joint owner/co-sharer in possession to the extent of 1/2 share of the total land measuring 22 kanals 17 marlas as detailed in the heading of the plaint, situated in villages Gajjpur, Shekhpur and Chanouli and that the will dated 9.4.1991 purported to have been executed by Bhagat Singh in respect of land measuring 2 kanals 5 marlas situated in village Chanouli, is illegal, forged and fabricated, unnatural, highly improbable and is surrounded by highly suspicious circumstances and has no effect on his right, title and interest in respect of the any part of the suit property measuring 22 kanals 17 marlas with the consequential relief which he has claimed in the suit. As these appeals arise out of the same judgment and decree passed by the Addl. Distt. Judge, Ropar, I would dispose of both these appeals through this common judgment. In these appeals, the question to be determined is whether the Bhagat Singh alias Bhagtoo son of Heeru executed, will, Exh. D-1, while in sound disposing mind, in favour of Ram Asra alias Ram Asru to the exclusion of his wife and son Sidki Ram, if so, whether he willed away the entire properties situated in villages Gajjpur, Shekhpur and Chanouli through this will, Exh. D-1, or he willed away his property situated only in village Chanouli and he did not will away his properties situated in villages Gajjpur and Shekhpur and left those properties to devolve by succession or he did not execute any will at all and the will set up is false, forged and fabricated. Learned trial Court has found that through will, Ex. D-1, Bhagat Singh alias Bhagtoo willed away only the property situated in village Chanouli and he did not will away the properties situated in villages Gajjpur and Shekhpur and in this premises, allowed the will to operate only in respect of land measuring 2 kanals 5 marlas situated in village Chanouli and did not allow the will to operate qua the properties situated in villages Gajjpur and Shekhpur and held that both the brothers shall be joint owners in possession of the properties situated in villages Gajjpur and Shekhpur in equal shares while Ram Asra alias Ram Asru shall be exclusive owner in possession of the property situated in village Chanouli. Learned first appellate Court has found that will, Exh. D-1, shall operate in respect of the entire property held by Bhagat Singh alias Bhagtoo in villages Gajjpur, Shekhpur and Chanouli and, therefore, the first appellate Court dismissed the plaintiffs suit in its entirety and allowed the properties of Bhagat Singh alias Bhagtoo situated in these three villages to devolve upon Ram Asra alias Ram Asru exclusively to the exclusion of all others including Sidki Ram. Sidki Ram, PW-1, stated that he and his brother Ram Asra alias Ram Asru are the only heirs of their father Bhagat Singh, who was owner of land in villages Gajjpur, Shekhpur and Chanouli. He stated that he and his brother both looked after their father and served him. Both of them had cordial relations with Bhagat Singh. Sidki Ram, PW-1, stated that he and his brother Ram Asra alias Ram Asru are the only heirs of their father Bhagat Singh, who was owner of land in villages Gajjpur, Shekhpur and Chanouli. He stated that he and his brother both looked after their father and served him. Both of them had cordial relations with Bhagat Singh. When he met with an accident in the year 1986, his father came to enquire about his health in village Pandoh (Himachal Pradesh) where he was posted and stayed with him for 8/10 days. He performed the marriage of his daughter at village Pandoh. He came to village Chanouli and invited his father and brother to that marriage. He, his father and brother decided upon the relations to be invited. He sent wedding cards and sweets to the relations in conjunction with his father and brother. His father did not attend that marriage as during those days he was not well. After the death of his father, he and his brother both performed funeral rites jointly. They shared the expenses equally. Ram Asra alias Ram asru is in occupation of the ancestral house while he has constructed house at a vacant plot at his own expense and has four walled it. Will dated 9.4.1991 alleged to have been executed by his father was never executed by him. It is forged and fabricated. Hardev Singh, who figures on that will as an attesting witness, had met him several times but he never disclosed about the same to him. He met him last after his fathers death but then also he did not disclose about any will. His relations with the village Sarpanch/Lambardar are not cordial. They belong to opposite faction. He never entered into any compromise which is being pressed into service by Ram Asra alias Ram Asru with regard to the sanctioning of mutation of the land of village Gajjpur on the basis of this will. So-called compromise dated 30.12.1993 is the result of conspiracy of Ram Asra with the witnesses. In his cross-examination, he stated that he is in service. He entered service at the age of 22 years and his first posting was at Pandoh. So far as Ram Asra is concerned, he is his elder brother. He is elder to him by 10/15 years. In his cross-examination, he stated that he is in service. He entered service at the age of 22 years and his first posting was at Pandoh. So far as Ram Asra is concerned, he is his elder brother. He is elder to him by 10/15 years. He had been putting up with his father although since beginning and had been assisting Bhagat Singh in cultivation and other domestic affairs. He stated that his wife was putting up at village Chanouli. His first child was born at village Chanouli when he was in service. His second child was also born at village Chanouli after 2-1/2 years of the birth of the first child. His wife joined him at Pandoh 7/8 years after their marriage. He has seven children. First three children were born at village Chanouli. Rest of the children were born at Pandoh. Pandoh is at a distance of 200 kilometers from village Chanouli. Pandon is in hills. His children were educated at Pandoh. He has performed the marriage of his one child at Pandoh. He had invited his father to that marriage but he did not attend that marriage as he was not well. There was swelling on his feet. He had urinary trouble also. He never got his father tied at Pandoh. He stated that in his absence, his brother Ram Asra was looking after his father but he too had been coming to his father. He never remitted money to his father by money order. He stated that he had been going to village Chanouli to give money to his father. He was present at the time of his fathers cremation. So far as Sidki Ram, PW-1, is concerned, he was residing in Pandoh in Himachal Pradesh while Bhagat Singh alias Bhagtoo was residing in village Chanouli with Ram Asra alias Ram Asru. There is no evidence that he ever sent any money to Bhagat Singh alias Bhagtoo. Bhagat Singh did not attend the marriage of Sidki Rams daughter. There is no evidence that during those days, he was not well. Sidki Ram was not present at the time of the cremation of his father. Had he been present at the time of the cremation of his father, he would have figured in the photograph, Exh. Bhagat Singh did not attend the marriage of Sidki Rams daughter. There is no evidence that during those days, he was not well. Sidki Ram was not present at the time of the cremation of his father. Had he been present at the time of the cremation of his father, he would have figured in the photograph, Exh. DW-1/1 which was snapped at the time before the dead body was put on funeral pyre, while Ram Asra alias Ram Asru figures. Sidki Ram stated that they had reached late but he does not figure in the snap. Ram Asra, DW-4, stated that his brother Sidki Ram has been residing at Pandoh for the last 30/40 years. He is not on visiting terms at village Chanouli. He (Ram Asra) used to serve Bhagat Singh alias Bhagtoo, their father. He used to reside with him. Plaintiff Sidki Ram never served Bhagtoo. He never sent any money. Bhagtoo was in sound disposing mind all through till his death. Bhagtoo did not fall ill prior to his death. These are the self-acquired properties of Bhagat Singh and he handed over the sale deeds to him through which he purchased these properties. As and when the sales took place, he handed over the sale deeds to him. Will, Exh. D-1, was executed by his father while in sound disposing mind in respect of the properties situated in villages Gajjpur, Shekhpur and Chanouli. He handed over the will, Exh. D-1, to him 10-12 days after it had been executed. At the time Bhagat Singh handed over will Exh. D-1 to him, he told him that as he was serving him, he was rewarding him for his services to him. He further stated that he asked about Sidki Ram who replied that Sidki Ram had never served him. As such, he had deprived him of his properties. Sidki Ram performed the marriage of his daughter at Pandoh. He did not invite his father to that marriage. Sidki Ram never came to attend the cremation of his father. He, however, came to attend the Kirya ceremony of his father. He (Ram Asra) performed the funeral rites of his father. Sidki Ram did not contribute at all towards the expenses incurred in the performance of funderal rites of his father. At that time, Sidki Ram raised contention about the will. He, however, came to attend the Kirya ceremony of his father. He (Ram Asra) performed the funeral rites of his father. Sidki Ram did not contribute at all towards the expenses incurred in the performance of funderal rites of his father. At that time, Sidki Ram raised contention about the will. A gathering of the village took place and a compromise was arrived at. Sidki Ram gave in writing that he had no objection if mutation was sanctioned in favour of Ram Asra alias Ram Asru. That compromise is Exh. D-2. It is, thus, clear that Sidki Ram was residing at Pandoh for the last several years. He had settled at Pandoh. He never came to village Chanouli to meet his father or enquire about his welfare. He did not invite him to his daughters marriage at Pandoh. He did not attend his cremation. Had he attended the cremation, he would have figured in the photograph that was snapped when the dead body was being put on the funeral pyre. It appears that Sidki Ram was quite oblivious of his father who was putting up at village Chanouli with his brother Ram Asra alias Ram Asru. It appears that Sidki Ram became lost in himself at Pandoh and became oblivious of his father, If Sidki Ram was oblivious of his father, his father was also oblivious of him. It is in this background that it has to be determined whether Bhagat Singh had the mind to deprive Sidki Ram of his entire property or he wanted to deprive him of the property of village Chanouli only and did not want to deprive him of the properties of village Gajjpur and Shekhpur. For determining this question, we have to interpret the will in conjunction with the statements of Hardev Singh, DW-1 and Sohan Singh, DW-2, and Kewal Krishan, DW-3, who are attesting witnesses and scribe, respectively of the will. Kewal Krishan Garg, DW-3, who is the scribe of will, Exh. D-1, stated that he scribed will, Exh. D-1. He scribed this will at the instance of Bhagat Singh in the presence of witnesses Sohan Singh and Hardev Singh. He read out the will to Bhagat Singh in their presence. Bhagat Singh thumb marked will, Exh. D-1, in the presence of Sohan Singh and Hardev Singh. Sohan Singh and Hardev Singh attested the will in the presence of the Bhagat Singh. He read out the will to Bhagat Singh in their presence. Bhagat Singh thumb marked will, Exh. D-1, in the presence of Sohan Singh and Hardev Singh. Sohan Singh and Hardev Singh attested the will in the presence of the Bhagat Singh. He stated that while will was read out to Bhagtoo, he pointed out that there is no mention of the properties of villages Gajjpur and Shekhpur and the properties of villages Gajjpur and Shekhpur should also go to him and further his wife and son Sidki Ram shall have nothing to do with his properties where-ever they are situated. It was then he mentioned that his entire property where-ever they ae situated shall go to him (Ram Asra) and further that his wife and Sidki Ram will have no concern with his properties. Hardev Singh, DW-1 and Sohan Singh, DW-2, are the attesting witnesses of this will. They also supported the execution of the will by Bhagat Singh. They also stated that Bhagat Singh was in sound disposing mind at the time of execution of this will. Bhagtoo thumb marked the will in their presence in token of its correctness and they attested the will in the presence of Bhagtoo. Thereafter, Bhagoo and they appeared before the Sub Registrar. There also, will was read out to them. Bhagtoo thumb marked endorsement in the presence of the Sub Registrar. They also attested the endorsement. Both of them stated that Sidki Ram was residing outside and was hardly coming to village Chanouli. If that was so, Sidki was oblivious of his father. His father also was oblivious of him. Both the witnesses have stated that in will, Exh. D-1, Bhagat Singh willed away his properties situated in villages Gajjpur, Shekhpur and Chanouli. It is, thus, clear that the will dated 9.4.1991, Exh. D-1, was executed by Bhagat Singh alias Bhagtoo while in sound disposing mind in favour of Ram Asra alias Ram Asru. Will, Exh. D-1, is registered. Registration of will goes a long way to show that the testator was in sound disposing mind. Bhagat Singh also Bhagtoo died on 5.12.1993. If he had not executed will, Exh. D-1, he would have revoked the same. He had ample time to revoke will, Exh. D-1. When he had not revoked will, Exh. D-1, that means, that he was firm that will, Exh. Bhagat Singh also Bhagtoo died on 5.12.1993. If he had not executed will, Exh. D-1, he would have revoked the same. He had ample time to revoke will, Exh. D-1. When he had not revoked will, Exh. D-1, that means, that he was firm that will, Exh. D-1, should operate as his last will and testament. Will, Exh. D-1 relates to villages Gajjpur, Shekhpur and Chanouli. It is clear from the fact that towards the close of this will, it is mentioned that his wife and son Sidki Ram shall have no concern with his properties, where- ever they are situated. In the will, Exh. D-1, he has clearly stated that he has two sons Ram Asru and Sidki Ram and wife Parsanni. Mera Ik Puttar Sidk Ram Meri Koi Sewa Nahin Karda Hai. Aksar Meri Beadbi Karda Hai. Jis Wallon Mera Man Atti Dukhi Hai. (His son Sidk Ram does not serve him and often shows his disrespect and he is extremely unhappy with him). In my opinion, in the face of what Bhagat Singh was feeling about Sidki Ram, it cannot be said that he wanted to make any bequest in his favour. Faced with this position, learned counsel for the appellant Sidki Ram submitted that the words used in the will, Exh. D-1, "Ki Meri Mrityu De Picho Meri Chhadi Gai Jaidad Maqoola, Gair Maqoola, Aarziyat, Makan, Tor, Abadiaad Wakaya Pind Chanouli, Thana Nurpur Bedi Jo Vi Mere Naam Hogi Us Par Mera Puttar Ram Asru Hi Wahad Kabaz Hoga Kyon Ki Meri Eh Hi Sewa Karda Hai" suggest that Bhagat Singh had meant only to bequeath his property situated in village Chanouli to Ram Asra alias Ram Asru and he did not mean to bequeath to him the properties situated elsewhere. We have to read the will as a whole. We cannot dissect the will in parts. If we want to comprehend the will in its true perspective, we have to read it as a whole and go into the intention of the testator. Will, Exh. D-1, echoes without any reservation that Sidki Ram was not at all serving his father. His father was extremely annoyed with him and he wanted that after his death, Ram Asra alias Ram Asru should inherit him to the exclusion of his wife and son Sidki Ram. Will, Exh. D-1, echoes without any reservation that Sidki Ram was not at all serving his father. His father was extremely annoyed with him and he wanted that after his death, Ram Asra alias Ram Asru should inherit him to the exclusion of his wife and son Sidki Ram. In the will, he has recited that he was passing his old age with great comfort on account of the care which Ram Asra alias Ram Asru is bestowing on him. If Bhagat Singh had meant to bequeath his property situated only in village Chanouli, he would have devised how the properties situated in other villages would devolve between his heirs. The use of the words "Patni Da Wa Puttar Sidk Ram Da Koi Sambandh Meri Chhadi Jaidaad Naal Na Hoga", suggested that he meant to exclude his wife and Sidki Ram altogether of his properties. The land situated in village Chanouli measurers only 2 kanals and 5 marlas. It can not be said that if Bhagat Singh was so happy with the services being rendered by Ram Asra alias Ram Asru to him and was so unhappy with the neglect and disrespect being shown to him by Sidki Ram, he would will away only land measuring 2 kanals 5 marlas to him and leave land measuring 15 kanals 2 marlas situated in village Gajjpur and 5 Kanals, 10 marlas situated in village Shekhpur to devolve through natural succession. It appears that Bhagat Singh wanted to exclude Sidki Ram altogether from inheriting him because there was no love lost between them. Bhagat Singh did not attend the marriage of Sidki Rams daughter. Sidki Ram did not attend the cremation of Bhagat Singh. Ram Asra alias Ram Asru was putting up with Bhagat Singh in village Chanouli since beginning and was serving him. Bhagat Singh wanted to reward him and he has rewarded him. For the reasons given above, I am of the opinion that the view taken by the learned Addl. Distt. Judge does not call for any interference and the learned Addl. Distt. Judge has arrived at this finding which is a finding of fact on appreciation of evidence that will, Exh. D-1, was executed by Bhagat Singh alias Bhagtoo in favour of Ram Asra alias Ram Asru wherethrough he bequeathed the entire of his properties in his favour situated in villages Gajjpur, Shekhpur and Chanouli. Distt. Judge has arrived at this finding which is a finding of fact on appreciation of evidence that will, Exh. D-1, was executed by Bhagat Singh alias Bhagtoo in favour of Ram Asra alias Ram Asru wherethrough he bequeathed the entire of his properties in his favour situated in villages Gajjpur, Shekhpur and Chanouli. Finding of fact arrived at by the learned Addl. Distt. Judge cannot be said to be unreasonable or erroneous. There can be no interference by this Court with finding of fact in second appeal if the same is based on consideration of evidence and consideration of evidence is just and reasonable. Both these appeals, accordingly, fail and are dismissed. No costs. Appeals dismissed.