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2002 DIGILAW 329 (HP)

SAWAPAN KUMAR v. SANJAY KUMAR

2002-12-06

K.C.SOOD

body2002
JUDGMENT Kuldip Chand Sood, J.—The defendants-appellants having lost before the trial Court and first Appellate Court are in second appeal. 2. This appeal is directed against the judgment and decree of the learned Additional District Judge (I), Kangra at Dharamshala dated 16.10.2001. 3. It appears, one Khazana Ram was the owner in possession of the land measuring 0-82-64 Hectares situate in Mohal Tharu, Mauza Nagrota Bagwan of Tehsil and District Kangra. Khazana Ram died on 13.10.1988. Khazana Ram was survived by his two daughters, namely, Shanta Devi and Sawarna Devi. He had no son and his wife had pre-deceased him. Both the daughters were married and have two sons each. Plaintiffs Sanjay Kumar and Parvesh (minors) are the sons of Shanta Devi. 4. Defendants Sawapan Kumar and Vipan Kumar are the sons of other daughter Sawarna Devi. The minor plaintiffs filed a suit through their mother for declaration that they were joint owners alongwith the defendants Sawapan Kumar and Vipan Kumar in equal shares in view of the Will executed by Khazana Ram on 18.9.1988. It was the case of the plaintiffs that the defendants in disregard to the will executed by Khazana Ram started dislodging the possession of the plaintiffs in spite of protest. 5. The defendants in the written statement controverted the allegations. It was pleaded that the Will set up by the plaintiffs was a forged document and was fabricated after the death of Khazana Ram. According fo the defendants, no such will was executed by Khazana Ram and in fact Khazana Ram had executed a Will on 28.2.1985 in favour of defendant No.l (Sawapan Kumar) bequeathing all his properties to him. The Will was executed in view of the services which were rendered by his mother Smt. Sawarana Devi, who was looking after Khazana Ram till his death. In the replication filed by the plaintiffs, the allegations in the plaint were reiterated and it was stated that the Will dated 13.10.1988 was executed by Khazana Ram of his free will and is a valid document. The Will which was executed on 28.2.1985 was revoked by him by his Will dated 13.10.1988 and therefore the Will in favour of defendant Sawapan Kumar (defendant No. 1) has no validity. 6. On the pleadings of the parties, several issues were settled by the learned trial Court. 7. The Will which was executed on 28.2.1985 was revoked by him by his Will dated 13.10.1988 and therefore the Will in favour of defendant Sawapan Kumar (defendant No. 1) has no validity. 6. On the pleadings of the parties, several issues were settled by the learned trial Court. 7. The learned trial Court found that the Will executed by Khazana Ram on 18.9.1988 in favour of the plaintiffs and defendants 1 and 2 was duly executed by Khazana Ram and is valid Will. The trial Court declared that the plaintiffs alongwith defendants 1 and 2 were the joint owners in possession of the suit property and accordingly proceeded to decree the suit of the plaintiffs. 8. Dis-satisfied the defendants carried an appeal before the learned District Judge, which was dismissed by the impugned judgment. 9. This appeal was admitted on 21.12.2001 and the following substantial questions of law raised by the appellants: 1. Whether the judgments and decrees passed by both the courts below are not vitiated on the ground that they have failed to take into consideration Sections 73 to 77 of the Registration Act, as the Registering Authority had refused to register the Will dated 18.9.1988 on the ground that the Will in question was not a valid and genuine will? 2. Whether the judgments and decrees passed by both the courts below are not vitiated as the learned Courts have failed to take into consideration the fact that in the Will dated 18.9.1988 the age of Khazana Ram has been shown to be 78 years, whereas in the earlier Will which was executed in the year 1985, the age of Khazana Ram has been shown to be 80 years. Whether this fact Will not constitute the will is shrouded by suspicious circumstances? 3. Whether it was not incumbent upon the lower appellate Court being final of fact to have independently weighed the evidence adduced by the parties and considered the material points which arose for adjudication and the bearing of the evidence on those points. Was it not incumbent upon the lower appellate Court to have given reasons for the decision on each point, as it was a salutary requirement? 10. I have heard Mr. Anuj Nag, learned Counsel for the appellants and Mr. O.P. Sharma, learned Senior Advocate, instructed by Mr. N.K. Arora, Advocate. I have been taken through the record by the learned Counsel. 11. 10. I have heard Mr. Anuj Nag, learned Counsel for the appellants and Mr. O.P. Sharma, learned Senior Advocate, instructed by Mr. N.K. Arora, Advocate. I have been taken through the record by the learned Counsel. 11. So far question of due execution of the impugned Will of 1988 is concerned, both the courts concurrently found that the Will was duly executed by Khazana Ram in favour of the plaintiffs and defendants 1 and 2 on 13.10.1988. The evidence to this aspect has been discussed by both the courts below in detail. The learned First appellate court concurring with the findings of the trial Court observed that the plaintiffs examined both the attesting witnesses Fuman Ram (PW-3) and Kunj Lal (PW-4). The witnesses were found to be independent with no interest in the plaintiffs or enmity with the defendants. The plaintiffs also took pains to examine the scribe of the Will, Ashok Kumar (PW-2), who categorically stated that the Will, after it was scribed, was read over to Khazana Ram, who after admitting the contents to be correct thumb marked the same in the presence of both the attesting witnesses. The attesting witnesses also categorically stated that they signed the Will in the presence of Khazana Ram after he admitted the contents to be correct and thumb marked the same. The fact that Khazana Ram was of sound disposing mind at the time of execution of the Will, was not disputed before the trial Court, appellate Court or even in this court. 12. There was nothing in the cross-examination of any of the witnesses which may raise any doubt, as to the due execution of the Will or to suggest that the Will was forged or fabricated after the death of Khazana Ram. 13. The learned first appellate Court has observed that both the Wills, one set up by the plaintiffs and the other by defendants are thumb marked by Khazana Ram and if the defendants suspected the Will to be forged then it was open to them to have the thumb marked of Khazana Ram, on the Will set up by the plaintiffs, examined by the Examiner of Questioned Documents, to see if thumb marked was that of Khazana Ram or not. Mere fact, observed learned Additional District Judge, that Khazana Ram died within one month of the execution of the Will not rendered the Will to be suspect. Mere fact, observed learned Additional District Judge, that Khazana Ram died within one month of the execution of the Will not rendered the Will to be suspect. In the absence of any evidence to suggest that Khazanu Ram was not of sound disposing mind particularly when defendant No. 3 (Smt. Sawarna Devi) in her cross-examination admitted that Khazana Ram was mentally fit and cultivated the suit land till his death. Question No. 1 14. The contention of Mr. Anuj Nag, learned Counsel for the appellants is that both the courts below did not take into consideration the fact that the Sub Registrar refused to register the Will set up by the plaintiffs on the ground that the Will was not valid and genuine Will. A perusal of the order of Sub Registrar (Ex.D-3) shows that the Will was not registered by the Sub Registrar, when presented for registration after the death of Khazana Ram. Merely because the Sub Registrar refused to register the Will, will not invalidate the Will. The Civil Court will be within its jurisdiction to come to its own conclusion as to the genuineness and due execution of the Will on the basis of the evidence led by the parties. Learned trial Judge in his judgment observed that "I feel that the order of the Sub Registrar cannot be taken to be final" particularly it was definite case of the defendants that the Will was forged after the death of Khazana Ram, but no evidence was led in support of this allegation. 15. It is to be noticed that the Will is not compulsorily registrable document under Section 17 of the Registration Act. However, its registration is optional under Section 18 of the Act. Normally, registration of a Will is not a circumstance which may render such Will open to doubt or tell against the genuineness of the Will. It is well settled that it is not at all necessary that the Will should be registered for the purpose of granting probate or letters of administration. There is no such provision in the Registration Act. There is no merit in the contention raised by the learned Counsel for the appellant. The question is accordingly answered. Question No. 2 16. It is well settled that it is not at all necessary that the Will should be registered for the purpose of granting probate or letters of administration. There is no such provision in the Registration Act. There is no merit in the contention raised by the learned Counsel for the appellant. The question is accordingly answered. Question No. 2 16. It is true that in the Will set up by the defendants, the age of Khazana Ram is stated to be 80 years whereas in the Will set up by the plaintiffs Ex. PW-2/A the age of Khazana Ram is stated to be 78 years. In my view, it is of no consequence. It is seldom that illiterate rustic persons know their exact age. It is not uncommon that approximate age is given by an illiterate executant of a Will to the scribe. This circumstance cannot be said to be of suspicious character to invalidate the Will. Question No. 3 17. The contention of Mr. Nag, learned Counsel for the appellants is that it was necessary for the first appellate Court to give reasons on each of the point raised in the first appeal. True it is. I have gone through the grounds of appeal before the first appellate court. I find that all the questions raised before the first appellate Court had been dealt with. Mr. Nag, learned Counsel could not point out any question which was raised before the first appellate Court and not dealt within the impugned judgment. There is no gain saying the fact that judgment should reflect the decision alongwith reasons on all points raised before the first appellate court. Question is accordingly answered. 18. It is now well settled that the question whether a Will can be believed or not is not a question of law. The High Court will not reappraise the evidence to ascertain whether the Will should be believed or not. (See Santosh Kumari v. Vijay Kumari, AIR 2002 Himachal Pradesh 103; Nalinakshi N. Rai v. Indira Shetty, (1999) 9 SCC 248). 19. No other point was urged. 20. In result, the appeal fails and is dismissed. There will be no order as to costs. Appeal dismissed.