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2002 DIGILAW 57 (HP)

NIRMLA DEVI v. SURESH KUMAR

2002-03-15

K.C.SOOD

body2002
JUDGMENT Kuldip Chand Sood, J. - 1. This second appeal arises out to the judgment and decree of learned District Judge, Hamirpur dated January 28, 1994. 2. The facts necessary for the disposal of this appeal are: One Lashkri Ram was the owner in possession of the property subject matter of dispute. He had four sons, Pinja, Phindu, Ranjha and Munshi Ram. Lashkri Ram breathed his last on Febuary 3, 1967. Mutation of inheritance of the property left by Lashkri Ram was attested on the basis of a will executed by Lashkri Ram on August 18, 1966 in favour of his three sons, namely, Pindu, Phindu and Ranja. Munshi Ram pre-deceased son of Lashkri Ram was survived by his son Suresh Kumar, the plaintiff and respondent in this appeal. Plaintiff Suresh Kumar, on June 7, 1982, filed a suit before the learned Sub Judge 1st Class (2) Hamirpur for possession of 1/4th share of the disputed property. The case of the plaintiff was that his grandfather Lashkri Ram had not executed any will on August 18, 1966 set up by the defendants. He died intestate and he being Class-I heir, was entitled to succeed to the disputed property to the extent of 1/4th share. It was also the case of the plaintiff that the disputed property was ancestral in the hands of Lashkri Ram and under the Kangra Customary Law, this property could not have been bequeathed by will. 3. During the pendency of the suit, defendant Pinja Ram died and his legal representatives were brought on the record as defendants 1 (a) to 1 (d). 4. The defendants resisted the suit. Allegations were controverted, it was denied that the disputed property was ancestral in nature in the hands of Lashkri Ram. It was pleaded that a valid will was executed by Lashkri Ram in favour of his three sons and Suresh Kumar was disinherited by this will and, therefore, mutation of inheritance was rightly attested in their favour on the basis of the will. 5. Learned trial Court settled several issues. Learned trial Court found that the property in dispute was ancestral in the hands of Lashkri Ram. Learned trial Court held that the will set up by the defendants was validly executed by Lashkri Ram. 5. Learned trial Court settled several issues. Learned trial Court found that the property in dispute was ancestral in the hands of Lashkri Ram. Learned trial Court held that the will set up by the defendants was validly executed by Lashkri Ram. The other objections of the defendants that the plaint was not within the period of limitation was had for non-Joinder parties and that the plaint was not properly verified were overruled. The suit of the plaintiff was accordingly dismissed. 6. Aggrieved, plaintiff carried an appeal before the learned district Judge Hamirpur. This was accepted by the impugned judgment and decree of the first Appellate Court and suit of the plaintiff was decreed. 7. Dis-satisfied, the defendants are in the second appeal. 8. I have heard Mr. Sanjeev Kuthiala, learned counsel for the appellant and Mr. Rama Kant Sharma, learned counsel respondent. I have been taken through the record by the learned for the counsel for the parties. 9. Learned first Appellate Court found that though the will was proved to have been duly executed by the attesting witnesses but there were suspicious circumstances surrounding the will which the defendants failed to dispel. The suspicious circumstances taken not of by the learned district Judge are: (a) Plaintiff, grand-son of Lashkari Ram, was disinherited without any reason particularly, when he was only seven months of age at the time of execution of the will and Lashkri Ram could not have any grudge against him; (b) Lashkri Ram was about 85 years of age at the time of execution of the will and, therefore, was not of sound disposing mind particularly when he did not mention about his grand-son, the plaintiff, in the will. (c) The will is scribed in narrow spaces but signatures of Lashkari Ram, the testator, apparition the bottom of one page leaving the space of one inch between the signatures and the script of the will; (d) The attesting witnesses to the will were not from the village of the testator;. 10. Learned District Judge concluded that the suspicious circumstances noticed by him makes the will improbable and accordingly invalidated the will. 11. This appeal was admitted on February 11, 1994 on the following substantial questions of law: (i) Whether on proper construction and interpretation of the document, Ex. D-1 a presumption of valid will in favour of the appellants was liable to be raised? 11. This appeal was admitted on February 11, 1994 on the following substantial questions of law: (i) Whether on proper construction and interpretation of the document, Ex. D-1 a presumption of valid will in favour of the appellants was liable to be raised? (ii) Whether the self-acquired property can be bequeathed by a Testator to the exclusion of one of the beneficiaries and the presumption of validity could be raised? (iii) Whether the findings that the will Ex. D-1 is superseded by the previous will of 1964 which was not produced or exhibited is based on misreading of oral and documentary evidence? (iv) Whether the plaintiff was entitled to the suit for possession and declaration in the absence of proof of existence of will of 1964? 12. Though this appeal was admitted on the substantial question of law, aforesaid, but after having heard the learned counsel of the parties, the following substantial question of law arises: (i) Whether the suspicious circumstances noticed by the learned district Judge in first appeal, reversing the judgment of the trial Court, are supportable by evidence on record? (ii) Whether the suspicious circumstances taken into consideration by the learned first Appellate Court are non-existent and legally untenable? 13. It may be noticed at the out set that Mr. Rama Kant Sharma, learned counsel for the respondent strenuously urged that this Court will refrain from interfering in the second appeal even of another view, on the reappraisal of the evidence on record, was possible. It is true that this Court in its jurisdiction under Section 100 of the Code of Civil Procedure will be reluctant to interfere with the finding of the fact arrived at by the first Appellate Court but if it is demonstrated that the findings have been arrived at by the first Appellate Court dehors the legal evidence on record or based on misreading of evidence or suffer from legal infirmity which prejudiced the case of any of the party or the conclusions arrived by the first Appellate Court are perverse, the Court will not hesitate to set-aside the findings in the second appeal, The Apex. Court in Neelakantan and others v. Malliaka Begum, (2002) 2 Supreme Court Cases 440 ruled in no uncertain terms: "It is well settled that the High Court while considering the matter in exercise of its jurisdiction in second appeal or civil revision would not reverse the findings of fact as recorded by the courts below. But it is not an absolute proposition. In a case where the finding is recorded without any legal evidence on record on misreading evidence or suffers from any legal infirmity, which materially prejudices the case of one of the parties or the findings is perverse, it would be open for the High court to set aside such a finding and to take a different view" 14. The merits of the case may now be examined on the touch stone set out in "Neelkantan and others." 15. So far the valid execution of the will is concerned, Section 63 of the Indian Succession Act provides for the execution and attention of the wills. Section 63 of the Indian Succession Act reads: "63 Every testator, not being a soldier employed in an expedition or engaged in actual warfare or an airman so employed or a mariner at seas, shall execute his will according to the following rules: (a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction; (b) The signature or mark of the testator or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. (c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark or has seen some other person sign the will. In the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other persons, and each witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, no particular form of attestation shall be necessary." 16. It is to be noticed that three things are necessary for the valid execution of the will; (a) it must be in writing; (b) it must be duly signed by the testator and (c) it must be duly attested by at least two witness; 17. the execution of the Will has to be proved, by satisfactory evidence, by the propounder of the Will as contemplated by Section 63 of the Succession Act, viz, (i) the will was signed by the testator; (ii) the testator, at the relevant time, was of sound and deposing state of mind and (iii) he understood the nature and effect of putting his signatures/mark on testamentary document and signed or marked the said document of his own free will. 18. Neither the provisions of Section 63 of the Indian Succession Act nor Section 3 of the Transfer of Property Act provide for a particular mode of the attestation of the will but as required under section 68 of the Evidence Act, at least one of the attesting witnesses should be examined to prove the "due execution of the Will". It is the duty of the propounder of the Will to prove by satisfactory evidence that the attesting witnesses saw the testator signing or thumb marking the will or obtained an acknowledgement of the signatures of such other person from the testator and the witnesses themselves signed will in the presence of the testator. In other words, for valid attestation of the Will, the following conditions must be fulfilled: (a) the Will must be attested by at least two witnesses; (b) each of these: (i) must receive from the testator sign or affix his mark to the Will or must see some other person sign the Will in the presence and by the direction of the testator, or (ii) must receive from the testator a personal acknowledgement of his signature or mark or of the signature of such other person; (iii) each of these must sign the Will; (iv) they must sign in the presence of the testator. 19. Needless to say if any of these conditions is not satisfied, the attestation would be bad and will invalid. 20. The Will set up by the defendants is placed on the record as Exhibit D1. The perusal of the Will shows that it was witnessed by Chaudhary Ram, additional Namberdar of the illaqua and Paras Ram Namberdar. 19. Needless to say if any of these conditions is not satisfied, the attestation would be bad and will invalid. 20. The Will set up by the defendants is placed on the record as Exhibit D1. The perusal of the Will shows that it was witnessed by Chaudhary Ram, additional Namberdar of the illaqua and Paras Ram Namberdar. The will was scribed by Petition Writer Mast Ram. The petition writer had died when the dispute arose and his Son Shri Niwas Kaisth was examined as DW1 who identified the signatures of his father scribe of the Will. This witness was not cross-examined by the plaintiff. Both the attesting witness Chaudhary Ram and Paras Ram have been examined by the Defendants. Paras Ram appearing as DW3 proved the will. It is his evidence that he knew deceased Lashkri Ram who was his relative from the village. It is his further evidence that he witnessed the will Exhibit DW1 along with Chaudhary Ram who is Harijan Namberdar of the illqaua. According to him, he was brought by the testator Lashkari Ram to witness the will which was scribed by the petition writer at the instance of Lashkri .Ram. According to him after the will was scribed, the contents were read over to Lashkri Ram who admitted the contents to be correct and thumb marked the will in his presence and in the presence of other witness Chaudhary Ram. He stated that Lashkri Ram of sound disposing mind at the time of the execution of the will/thereafter thy went to the Sub Registrar (Tehsildar) for the registration of the Will. The sub Registrar also read over the contents of the will to Lashkri Ram who admitted the contents to be correct and again thumb marked the will in the presence of Lashkri Ram. The witness also signed in the presence of Sub Registrar on the reverse of the will Exhibit D2. To a similar effect is the evidence of Chaudhary Ram (DW4) the other attesting witness. It is his evidence that he is additional numberdar of the Illaqua where the testator lived. He stated that the will was scribed in his presence at the instance of Lashkri Ram by Mast Ram petition writer and the testator Lashkri Ram thumb marked the will in his presence and in the presence of Petition Writer Mast Ram and the other attesting witness Paras Ram. He stated that the will was scribed in his presence at the instance of Lashkri Ram by Mast Ram petition writer and the testator Lashkri Ram thumb marked the will in his presence and in the presence of Petition Writer Mast Ram and the other attesting witness Paras Ram. He and the other attesting witness Paras Ram also signed the Will, as the attesting witness, in the presence of the testator Lashkri Ram. 21. Learned trial Judge after due appreciation of the evidence held that due and valid execution of the Will has been proved by the evidence of the attesting witness. He also found, as fact, that the testator Lashkri Ram was of sound disposing mind at the time of execution of the Will. The findings arrived at by the Learned District Court about the due and valid execution of the will cannot be faulted with in the face of preponderance of the evidence on record. 22. So far the suspicious circumstances, are concerned, learned counsel for the defendants-appellants submitted that the circumstances are either non-existent or untenable. 23. The first circumstance taken note of by the learned first Appellant Court is untenable. It is true that Lashkri Ram had executed a will on June 9, 1964 in favour of his four sons, including Munshi Ram, father of the plaintiff. There is a specific reference to the Will dated June, 1964 and it is declared in the Will in question (Ex. D1) that i the Will of June 9, 1964 stood revoked by the Will Exhibit D1 which/ was executed on August 8,1966. It is well settled that a Will can be revoked either expressly or impliedly. In the present case, the Will declares that the Will executed by the testator on June 9, 1964 which was also registered, would be deemed to have been revoked by the j disputed Will Exhibit D1. It need no emphasis that the testator can impliedly revoked his wills by executing subsequent Will even if there! is no specific clause of revocation in the subsequent Will. 24. So far the disinheritance of the Plaintiff is concerned, it is not a suspicious circumstance. It is no longer res integra that exclusion I of natural heir by the testator in itself is not a suspicious circumstance. I The Apex Court in Rabindra Nath Mukherjee and another V. Panchanan Banjerjee (dead) by LRs. 24. So far the disinheritance of the Plaintiff is concerned, it is not a suspicious circumstance. It is no longer res integra that exclusion I of natural heir by the testator in itself is not a suspicious circumstance. I The Apex Court in Rabindra Nath Mukherjee and another V. Panchanan Banjerjee (dead) by LRs. (1995) 4 Supreme Court Cases 459 observed that a will contains the last desire of a testator. The Courts, therefore, normally act in accordance with the wishes of the testator. 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. In Rabindra Nath Mukherjee, the natural heirs were disinherited by the Will. In this background, the learned Judges held: " 4. 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 the 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 have not been taken as a suspicious circumstance, when some of her descendants are even beneficiaries under the Will. 25. Merely because the plaintiff has been disinherited, in my view, would not render the will invalid. 26. This apart, as discussed by the learned Court, there is evidence on record to show that wife of Munshi Ram, after the death of her husband started living in her parental house. Learned Court referred to the evidence which shows that Lashkri Ram had purchased some land in the name of his son Munshi Ram on which a house was constructed by the Plaintiff. In these circumstances, it cannot be said the plaintiff was disinherited without any apparent reason. 27. The second circumstance noticed by the learned District Judge was that Lashkri Ram was not of sound disposing mind at the time of execution of the Will for the reason that he was 85 years of age and disinherited his own grand-son with whom he could not have any grudge. 28. 27. The second circumstance noticed by the learned District Judge was that Lashkri Ram was not of sound disposing mind at the time of execution of the Will for the reason that he was 85 years of age and disinherited his own grand-son with whom he could not have any grudge. 28. 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. It is also true that Lashkri Ram was more than 80 years of age at the time off execution of the Will. But advance age of the testator will not lead to I the presumption that he was not of sound disposing mind. Both the/ attesting witnesses unequivocally stated that the testator Lashkri Ram was of sound disposing mind at the time of the Will. There is nothing on the record to show that the testator was suffering from any mental illness or did not know about the disposition made by him. This Court in Leela V. Drumti Devi, AIR 2002 HP-7 Shanti Devi v. Dali Devi and another, RSA No. 27 of 1994 decided on 4.3.2002 relying upon Tirath Singh and other vs. Sajjan Singh (dead) through LRs. 1998 (1) S.L.J. 232 had taken a view that mere advance age will not lead to a \ presumption that the testator was not of sound disposing mind. It is to be noticed that the will in question was got registered by the testator on the very day of execution of the will which shows that he was of sound disposing mind at the relevant time. Learned counsel for the respondents was not able to point out any evidence which may show that the testator was mentally incapacitated to execute a valid Will. 29. Third suspicious circumstance noticed by the learned District Judge and urged by the learned counsel for the respondent is that the will is scribed in narrow spaces but signatures of Lashkri. Ram, the testator, appear in the bottom of the one page will leaving a space of one inch between the signatures and the script of the will. The argument is that the will was forged in a blank paper, already thumb marked by the testator, after his death. The contention is fallacious and cannot be accepted. Ram, the testator, appear in the bottom of the one page will leaving a space of one inch between the signatures and the script of the will. The argument is that the will was forged in a blank paper, already thumb marked by the testator, after his death. The contention is fallacious and cannot be accepted. I find the will is scribed in the same ink as the signatures of the witnesses are. It is significant to note that the Will was registered on the very day of the execution of the Will by the testator Lashkari Ram which would show that Will could not have been forged after the death of Lashkri Ram as the plaintiff would have the Courts believe. The Sub Registrar endorsed the will with the observations that the testator was identified by Chaudhary Ram Nambrdar and Paras Ram and that he had known Chaudhary Ram personally. Now this will was executed and registered on August 18, 1966 whereas, admittedly, the testator died on February .3, 1967. Obviously, the will which was registered on August 8, 1966 could not have been forged after February 3, 1967. This suspicious circumstance is non-existent. 30. The last suspicious circumstance urged by the learned counsel for the respondents is that attesting witnesses were not from the village of the Executants of the Will. This circumstance, in my view, I is not a suspicious circumstance. Learned first Appellate Court was not right in observing that Hari Singh Namberdar of the illaqua and, therefore, he was the competent person to witness the Will. I have already noticed that marginal witness Paras Ram (DW3) was known to Lashkri Ram and he was his relative in the village He was on visiting I terms in the house of: Lashkri Ram. He has stated so in his evidence and this part of the statement is not disputed in his cross-examination. The other attesting witness Chaudhary Ram (DW4) is the additional Namberdar of the illaqua in which lashkri Ram lived. He has stated so in his examination-in-chief and this statement too is not disputed in the x cross-examination. Thus, the premise that the attesting witnesses were stranger to Lashkari Ram is untenabli and dehores the evidence on record without any foundation. 31. He has stated so in his examination-in-chief and this statement too is not disputed in the x cross-examination. Thus, the premise that the attesting witnesses were stranger to Lashkari Ram is untenabli and dehores the evidence on record without any foundation. 31. To conclude, the suspicious circumstance spelled out by the plaintiff and noticed by the learned district Judge are not supportable by the evidence on record. They are either non-existent or untenable. 32. The findings recorded by the learned District Judge are therefore, unsustainable being without any foundation. The questions are accordingly answered. 33. No other point is urged before me. 34. In result, the appeal is allowed, the impugned judgment and decree of learned District Judge is set-aside and that of the trial Court restored. No order as to costs.