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2002 DIGILAW 41 (HP)

SHANTI DEVI v. DALI DEVI

2002-03-04

K.C.SOOD

body2002
JUDGMENT Kuldip Chand Sood, J. (Oral) :- This second appeal arises out of the judgment and decree of learned District Judge. Una, dated 2nd November. 1993. whereby the appeal of the appellant Shanti Devi was dismissed. 2. It appears. Shanti Devi plaintiff-appellant filed a suit against Dali Devi respondent No.l and Amar Nath respondent No.2. hereinafter referred to as the defendants, for declaration that she was owner in possession of the property subject matter of dispute and consequential relief of injunction seeking restrain on the defendants from interfering in the possession of the plaintiff over the suit property. 3. Case of the plaintiff-appellant was that Munshi Ram was owner in possession of the suit property. He had two daughters Shanti Devi and Dali Devi. On 8th September. 1982 he executed a Will of the suit property in favour of the plaintiff Shanti Devi in sound disposing mind. Munshi Ram expired on 4th July 1985. Amar Nath defendant No.2. being a clever person joined hands with Dali Devi and threatened to dispossess the plaintiff from the suit land. Defendants stealthily got mutation of inheritance attested in their favour. 4. The suit was resisted by the defendants. The allegations were controverted. It was pleaded that the suit was not maintainable and the plaintiff has no locus standi to lay the suit. On merits, it was admitted that the suit property was owned and possessed by Munshi Ram. The execution of the Will in favour of the plaintiff was denied. In the alternative, it was pleaded that the alleged Will was revoked by Munshi Ram by executing another Will in favour of the defendants on 4thFebruary. 1985. This Will, alleged defendants, was attested pursuant to the Will executed in favour of the defendants. It was denied that the plaintiff was in possession of the suit property. It was he case of the defendants that though at some stage, relations between Munshi Ram and defendant No.2 Amar Nath were strained but later on they patched up. Their relations became very cordial. Munshi Ram was residing with defendant No.2 at Kapurthala where he was serving. Plaintiff pleased with the services, rendered by defendant No.2. executed the Will in favour of second daughter Dali Devi and defendant No.2 Amar Nath. Plaintiff in her replication denied the execution of the second Will and pleaded that such Will was result of fraud, misrepresentation and undue-influence. Munshi Ram was residing with defendant No.2 at Kapurthala where he was serving. Plaintiff pleased with the services, rendered by defendant No.2. executed the Will in favour of second daughter Dali Devi and defendant No.2 Amar Nath. Plaintiff in her replication denied the execution of the second Will and pleaded that such Will was result of fraud, misrepresentation and undue-influence. It was her case that Munshi Ram was unconscious for more than six months before his death and. therefore, he could not have executed any Will. 5. Learned trial Judge found that though Munshi Ram had executed a valid Will in favour of the plaintiff on 8th September. 1982 but this Will stood revoked by a later Will in favour of Dali Devi and Amar Nath executed on 4th February. 1985. Plea of the plaintiff that she was in possession of the suit land was negatived. Objection that suit was not properly valued for the purposes of court fee and jurisdiction was overruled. The trial Court, in view of the execution of the later Will, held that the plaintiff had neither cause of action nor locus standi to file the suit. 6. Aggrieved, the plaintiff filed an appeal before the learned District Judge, which was dismissed by the impugned judgment and decree dated 2nd November. 1993. 7. Still unsatisfied the plaintiff-appellant is in second appeal. 8. This second appeal was admitted on 7.4.1995 on the following substantial questions of law: "1.Whether the real daughter, that is Class I heir, can be deprived of to inherit the ancestral property of her father by way of will? 2. Whether the finding of learned District Judge, regarding the plaintiff has no locus standi and cause of action to file the suit is correct or not?" 9. I have heard Mr. H.K. Bhardwaj. learned counsel for the appellant, Mr. Parkash Thakur. learned counsel for respondent No.l and Mr. Ankush Dass Sood learned counsel for the legal representatives of deceased respondent No.2. I have also been taken through the record by the learned counsel. 10. So far execution of the Will in favour of the plaintiff in the year 1982 is concerned- the same was not disputed before the learned first appellate court nor it is in dispute in this court. Execution of the second Will in favour of the defendants is also not in dispute. 11. Mr. Bhardwaj. 10. So far execution of the Will in favour of the plaintiff in the year 1982 is concerned- the same was not disputed before the learned first appellate court nor it is in dispute in this court. Execution of the second Will in favour of the defendants is also not in dispute. 11. Mr. Bhardwaj. learned counsel for the appellant strenuously urge:, that there are suspicious circumstances which surrounds the execution of the will and therefore, the Will is liable to be set aside. Mr. Bhardwaj. learned counsel contends: (a) the Will in dispute has excluded the plaintiff Shanti Devi without any reason and natural succession has been impeded; (b) Testator Munshi Ram was 90 years of age at the time of execution of the Will and. therefore was not in sound disposing mind; (c) the (?) Munshi Ram was residing with Amar Nath at the relevant time and the Will was result of undue influence exercised by Amar Nath. 12. So far the first circumstance is concerned- it is true that plaintiff Shanti Devi has been excluded and disinherited from the estate of her father. Mr. Bhardwaj. learned counsel contends that there was no reason for her father Munshi Ram to have disinherited her. The mere fact that plaintiff a daughter of Munshi Ram. has been disinherited is a circumstance which creates doubt about the genuineness of the Will. 13. A perusal of the Will Ex.DW-2/A shows that this Will was executed by Munshi Ram on 4th February. 1985. It was registered on the same day with the Sub Registrar at Una. The Will was scribed by one Gurmail Singh. Petition Writer. It was witnessed by Sh. Gurbax Singh. Advocate, and Dalip Singh. Munshi Ram was identified by Sh. Gurbax Singh. Advocate and Dalip Singh before the Sub Registrar. Perusal of the Will further shows that the testator had referred to the earlier Will executed by him in favour of the plaintiff Shanti Devi. He declared that as he is being served/looked after by her daughter Dali Devi and Amar Nath his nephew, therefore, he wanted that after his death the entire immovable property should go to his nephew Amar Nath and his daughter Dali Devi in equal shares. He specifically mentioned that Shanti Devi and any other other relative will not be entitled to any share in the property. Petition Writer. Gurmail Singh, appearing as DW-2. He specifically mentioned that Shanti Devi and any other other relative will not be entitled to any share in the property. Petition Writer. Gurmail Singh, appearing as DW-2. stated that the Will was scribed by him at the instance of Munshi Ram Testator in the presence of Gurbax Singh. Advocate and Dalip Singh on 4th February. 1985. It is his evidence that contents of the Will were read over to the testator who after admitting the same to be correct thumb marked the Will in the presence of the witnesses. The witnesses also signed the same in the presence of the testator. It is his further evidence that Munshi Ram was in sound disposing mind at that time. He made an entry in his register about the document having been scribed by him. There is nothing material in the cross-examination. He denied the suggestion that the Will was scribed at the instance of some lady who was accompanying Munshi Ram. He also denied the suggestion that Munshi Ram was unconscious at that time. Dalip Singh, one of the marginal witness, appearing as DW-1 stated that ne know Munshi Ram. who came to him on 4th February. 1985 and told him that he wanted to execute a Will and that he (Dalip Singh) should witness. Munshi Ram then went to Sh. Gurbax Singh. Advocate, and requested him to witness his will. It is his evidence that the Will Ex.DW-2/A was scribed by the petition writer in his presence. The contents of the same were read over to Munshi Ram who thumb marked the same in his and Gurbax Singhs presence. The witnesses also signed the will in the presence of the testator. To the same effect is the evidence of Sh. Gurbax Singh. Advocate (DW-6) the other witness of this Will. Both the courts found that the execution of the will Ex.DW-2/A has been duly proved in accordance with Section 63 of the Indian Succession Act and Section 63 of the Evidence Act. Learned District Judge, concluded that though elations of Amar Nath with the testator were not cordial but "Sh. Amar Nath towards the ends of his life, defendant No.2 had been paving off various loans of Sh. Learned District Judge, concluded that though elations of Amar Nath with the testator were not cordial but "Sh. Amar Nath towards the ends of his life, defendant No.2 had been paving off various loans of Sh. Munshi Ram and Munshi Ram had executed a will also in his favour though due to that litigation he had changed it and executed a will in favour of the plaintiff in the year 1982 but simple recovery suit cannot be of so intensity that an uncle and a nephew cannot reconcile. The evidence to this effect shows that they did reconcile, that the deceased was living with Amar Nath and was being looked after by defendants No.2 and it was the plaintiff who was not living with him in the year 1985. DW-4. is. thus, believed by this Court on this aspect that their relations had become cordial after the year 1981-82. The desire of an old man in our society to have a male successor so that property-can be retained in his family is well known and in the present case PW-2 Hakam Rai has proved such desire on the part of Sh. Munshi Ram." 14. Both the first appellate court and trial Court held that due execution of the Will has been proved. Both the courts concurrently held at the mere fact that the plaintiff was disinherited will not invalidate the ill. . 15. It is to be noted that reason for disinheriting the plaintiff is, stated in the Will itself by the testator in no uncertain terms that the, plaintiff was no longer serving him and. therefore, he disinherited her by I revoking the earlier will executed in favour of the plaintiff. This apart, mere fact that the plaintiff, daughter of the testator, has bee disinherited, is not in my view. itself a suspicious circumstance so as to doubt genuineness, of the will. In Rabindra Nath Mukherjee & Anr. v. Panchanan Banerjee (Dead) by LRs & Ors. 1995 (4) SCC 459. it was observed that "a will contains the last desire of testator/testatrix. The courts, therefore, normally act in accordance with the wishes of the person concerned. itself a suspicious circumstance so as to doubt genuineness, of the will. In Rabindra Nath Mukherjee & Anr. v. Panchanan Banerjee (Dead) by LRs & Ors. 1995 (4) SCC 459. it was observed that "a will contains the last desire of testator/testatrix. The courts, therefore, normally act in accordance with the wishes of the person concerned. But then if the courts were to doubt either genuineness or voluntariness of the maker of the will, they would be loathe to work in accordance with what has been stated in the will, hi Rabindra Nath Mukherjees case supra, the natural heirs were disinherited by the will. It is in this context, that their Lordships held that: "As to the first circumstance, we would observe that this should not raise any suspicion, because the whole idea behind execution of will is to interfere with the normal line of succession. So natural heirs would be debarred in every case of will; of course, it may be that in some cases they are fully debarred and in others only partially. As in the present case, the two executors are sons of a half-blood brother of Saroj Bala. whereas the objectors descendants of a full blood sister, the disinheritance of latter could not have been taken as a suspicious circumstances, when some of her descendants are even beneficiaries under the will". 16. The second contention of Mr. Bhardwaj. learned counsel for the appellant, that Munshi Ram was 90 years of age and. therefore, was not in disposing mind at the time of execution of the Will is concerned, it has no substance. There is nothing on record to show that the testator was not in sound disposing mind at the time of execution of the Will. It is true that validity of a will depends on the testator being of sound disposing mind at the time of making of the Will but at the same time sound disposing mind does not depend upon the advance age. The mere fact that Munshi Ram was 90 years of age at the time of execution of the will, would not lead to the conclusion that he was not in sound disposing mind. In Tirath Singh & Ors v. Sajjan Singh (Died) through his LRs & Ors. The mere fact that Munshi Ram was 90 years of age at the time of execution of the will, would not lead to the conclusion that he was not in sound disposing mind. In Tirath Singh & Ors v. Sajjan Singh (Died) through his LRs & Ors. 1998(1) S.L.J. 232 it was held that mere advanced age Will not lead to any \ presumption that the testator was not of sound disposing mind. The very fact that the Will in question was got registered by the testator on the same date shows that testator was of sound disposing mind at the relevant time. See Gurpal Singh v. Darshan Singh 1998 (1) S.L.J. 174. Mr. Bhardwaj. learned counsel for the appellant was unable to point out any evidence on record except that of self serving statement of the plaintiff, that the testator was not of sound disposing mind. There is no merit in the contention that the appellant was mentally incapacitated to execute a valid Will. 17. The third contention of Mr. Bhardwaj. learned counsel for the appellant is that Munshi Ram was residing with Amar Nath at the relevant time and. therefore, presumption should be drawn that execution of the Will was visited by undue influence exercised by Amar Nath. I am afraid that the contention is fallacious and cannot be accepted. Merely because the testator at the relevant time was living with defendant No.2 would not show exercise of undue influence in execution of the Will. There is nothing on record to show that Amar Nath defendant No.2 was present when this Will was scribed or registered before the Sub Registrar. 18. This apart the question whether a person is in a position to dominate the Will of another to get a document executed by undue influence is a question of fact which is not liable to be reopened in second appeal under Section 100 of the Code of Civil Procedure. The supreme court in Afsar Shaikh v. Solemnan Bibi. AIR 1976 Supreme Court 163 considering the ambit and scope of Section 100 of the Code and held that the High Court, in second appeal, is not competent to reverse the findings of fact to the effect that a person was not in a position to dominate the Will. The supreme court in Afsar Shaikh v. Solemnan Bibi. AIR 1976 Supreme Court 163 considering the ambit and scope of Section 100 of the Code and held that the High Court, in second appeal, is not competent to reverse the findings of fact to the effect that a person was not in a position to dominate the Will. Their Lordships observed: "a question whether a person was in a position to dominate the will of another and procured a certain deed by undue influence, is a question of fact, and a finding thereon is a finding of fact and if arrived at fairly, in accordance with, the procedure prescribed is not liable to be reopened in second appeal." 19. It may be noticed that no particulars of plea of undue influence were given either in the plaint or stated in the deposition of the plaintiff. In the circumstances by no stretch it can be said that the Will in question was result of undue influence on the part of defendant No.2. 20. The question whether the Will can be believed or not, in my view is not a question of law. In Nalinkashi N. Rai v. Indira Shetty 1999 (9) SCC 248 the Will was held not to have been legally proved by the trial Court. The first Appellate Court reappraising the evidence, took a contrary view and held that the document was a genuine will. The High Court in appeal set aside the order of the first appellate court. The Apex Court in this context, observed: "The question that is involved in the second appeal is whether the will executed by Babu Shetty in favour of Narayana of his l/4th share under Ex.D-1 can be believed or not. Such a question is not a question of law much less a substantial question of law." 21. There is concurrent finding of the trial Court and the first appellate court that the Will Ex.DW-2/A was validly executed by Munshi Ram. The suspicious circumstances spelled out by the plaintiff, are nonexistent and unteable. In my view, it is not open to this court in the second appeal to reappraise the matter t come to a different conclusion, even if such conclusion was possible by reappraisal of the evidence. (See Deity Pattabhiramaswamy v. S. Harymayya AIR 1959 SC 57. The suspicious circumstances spelled out by the plaintiff, are nonexistent and unteable. In my view, it is not open to this court in the second appeal to reappraise the matter t come to a different conclusion, even if such conclusion was possible by reappraisal of the evidence. (See Deity Pattabhiramaswamy v. S. Harymayya AIR 1959 SC 57. Navaneethammal v. Manikrao 1999 (3) SCC 573 and Hari Singh v. Kanhaiya Lal 1999 (7) SCC 288. 22. The questions raised by Mr. Bhardwaj. learned counsel for the appellant, in the facts and circumstances, of the case are not substantial questions of law. 23. Lastly Mr. Bhardwaj. learned counsel for the appellant contended that the findings of the trial Court and the first appellate court that the plaintiff had no locus standi to file the suit is erroneous. It is true that maintainability of the suit and locus standi to file a suit depends upon the allegations made in the plaint and not on any defense which may be set up. However, in the present case, these observation appear to have been made in the context that the Will set up by the plaintiff was proved to have been revoked by the second Will. The first appellate court and the trial Court were not right in observing that the plaintiff had no locus stand to file the present suit. This observation, however, does not affect the merit of the case. 24. No other point is urged before me. 25. In result, the appeal fails and is dismissed. The parties are left to bear their own costs.