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2003 DIGILAW 1174 (PNJ)

Harbans Devi (deceased) v. Kuldip Singh

2003-08-22

N.K.SUD

body2003
JUDGMENT N.K. Sud, J. - This Regular Second Appeal is directed against the judgment of the Additional District Judge, Hoshiarpur dated 6.9.1982 dismissing the appeal of Harbans Devi, plaintiff against the judgment land decree passed by the Sub Judge IInd Class, Garhshankar dated 5.12.1978 whereby the suit of the plaintiff was dismissed. 2. The plaintiff had filed a suit for declaration to the effect that she was the absolute owner in possession of land as detailed in the heading of the plaint situated in the area of Village Badesron, Hadbast No. 270, Tehsil Garhshankar. She claimed that her mother Smt. Gokli Devi, who was the owner of the suit property, had died leaving her as the sole and exclusive heir. She also claimed that Smt. Gokli Devi had executed a Will dated 8.7.1975 in her favour. 3. The claim was contested by respondents No. 1 and 2, i.e. Kuldip Singh and Subhash Kumar, who are nephews of the deceased Smt. Gokli Devi, being her brothers sons. According to them, Smt. Gokli Devi had executed a Will dated 10.6.1974 whereby out of the suit land she had only bequeathed 20 kanals 8 marlas in Khasra Nos. 220 (7-11), 221 (7-11) and 225 (5-6) in favour of the plaintiff and the rest of her property had been bequeathed in favour of respondents No. 1 and 2. It was further claimed that the revenue authorities had also given effect to the Will dated 10.6.1974. 4. The plaintiff, on the other hand, claimed that her mother Smt. Gokli Devi had never executed Will dated 10.6.1974 and that she was not in a sound disposing mind. It was further claimed that Smt. Gokli Devi had executed only one will which was dated 8.7.1975 according to which she had bequeathed the entire property in favour of the plaintiff. 5. Respondents No. 1 and 2 claimed that the Will dated 8.7.1975 set up by the plaintiff was a false and forged document. They claimed tthat this Will was never executed by Smt. Gokli Devi while in sound disposing mind nor was there any reason for her to execute this Will. 6. On a consideration of oral and documentary evidence led by the parties, the trial Court upheld the claim of respondents No. 1 and 2 that Smt. Gokli Devi had executed the Will dated 10.6.1974 and that she had not executed any Will dated 8.7.1975. 6. On a consideration of oral and documentary evidence led by the parties, the trial Court upheld the claim of respondents No. 1 and 2 that Smt. Gokli Devi had executed the Will dated 10.6.1974 and that she had not executed any Will dated 8.7.1975. Accordingly, the suit of the plaintiff was partially decreed in respect of 20 kanals 8 marlas of land out of the land in dispute which according to the Will dated 10.6.1974 had been bequeathed in her favour. 7. Aggrieved by the judgment and decree of the trial Court, the plaintiff filed an appeal before the District Judge, Hoshiarpur which has also been dismissed. 8. Both the Courts, on appreciation of evidence, have recorded a concurrent finding of fact that execution of Will dated 10.6.1974 (Exh. D-1) stands proved by the statement of witness; namely, Jai Ram Dass (DW-2), who is the scribe of this Will, and Kishan Chand (DW-3) and Opinder Singh (DW-4), who are the two arresting witnesses. The scribe Jai Ram Dass is a licensed Wasiqa Nawis at Garhshankar and had stated that he had scribed the Will dated 10.6.1974 at the instance of Smt. Gokli Devi while she was in sound disposing mind. The witnesses have also testified that Smt. Gokli Devi had thumb marked the Will in their presence while they attested the Will in her presence. This Will has also been registered and is entered at Serial No. 331 dated 10.6.1974 in the Register. It has also come in evidence that Smt. Gokli Devi who was a widow had no male child and used to live at Village Satnaur with her brothers family and that respondents Kuldip Singh and Subhash Kumar, sons of her brother, used to serve her and took after her. This fact also stood established from the fact that she was recorded as a voter with her brothers family at Village Satnaur and her came was entered in their Ration Card. It has also come on record that she had died in the house of her nephews who had performed her last rites. Furthermore, Smt. Gokli Devi had not totally deprived her daughter of any share in her property. She had earlier gifted her about 15 kanals of land (which gift was partially set aside) and in the Will also she had bequeathed land measuring 20 kanals 8 marlas in her favour. Furthermore, Smt. Gokli Devi had not totally deprived her daughter of any share in her property. She had earlier gifted her about 15 kanals of land (which gift was partially set aside) and in the Will also she had bequeathed land measuring 20 kanals 8 marlas in her favour. All these facts have been taken into account by the Courts below to come to the finding that Will dated 10.6.1974 was a genuinely executed document. 9. Both the Court have also recorded a finding that the Will dated 8.7.1975 could not be said to be genuine and did not appear to be a conscious act on the part of Smt. Gokli Devi. It has been observed that the Will was scribed by one Vijay Singh (PW-3), who is not a professional scribe. There is no explanation as to why it was not got scribed from a professional scribe who was available at Garhshankar which was three kilometres away. It has further been found that the two witnesses; namely Dildar Singh (PW-2) and Jagda (PW-4) were also interested witnesses and had in fact been called either by the grand daughter of the plaintiff or by the husband of the plaintiff. It has, therefore, been found that the witnesses as well as the scribe of the Will dated 8.7.1975 were all of the choice of the plaintiff. Another important fact highlighted by the lower Appellate Court is that the Will dated 8.7.1975 does not refer to the earlier Will dated 10.6.1974 which has been found to be a genuine document and had duly been registered. Under normal circumstances, if she had meant to revoke the earlier Will she would have clearly mentioned this fact in the subsequent Will dated 8.7.1975 and also given some reasons for the revocation. It has also been observed that if Smt. Gokli Devi had really meant to execute any Will in revocation of the earlier Will, she would have gone to Garhshankar and had the Will scribed and also got it registered. From the aforesaid circumstances, the Courts below have come to the conclusion that the Will dated 8.7.1975 was not genuine. 10. Mr. H.N. Mehtani, learned counsel for the appellant, states that the evidence has not been properly appraised by the Courts below. From the aforesaid circumstances, the Courts below have come to the conclusion that the Will dated 8.7.1975 was not genuine. 10. Mr. H.N. Mehtani, learned counsel for the appellant, states that the evidence has not been properly appraised by the Courts below. He could not advance any serious argument controverting the finding of the Courts below that the Will dated 10.6.1974 had duly been proved and was a valid and genuine document. According to him, the said Will stood superseded by the subsequent Will dated 8.7.1975 which has been wrongly rejected by the Courts below. On the other hand Mr. G.S. Jaswal, counsel for the respondents, supports the impugned judgments. 11. From the above discussion, it is clear that the Courts below have recorded concurrent findings of fact on appreciation of evidence. Counsel for the appellant has merely made an attempt to persuade this Court to arrive at a different finding by reappraising the evidence. This cannot be done. It is well settled position that an issue of fact which is concurrently decided in favour of one party by the Courts below, cannot be disturbed by the High Court by substituting its own findings for the findings of the Courts below arrived at on appreciation of evidence. Reference for this proposition may be made to the decision of the Supreme Court in According to me, no substantial question of law arises out of the impugned judgments warranting interference by this Court. I, therefore, find no merit in this appeal and dismiss the same. No costs. Appeal dismissed.