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2005 DIGILAW 329 (HP)

SUSHIL KUMAR v. JAGDISH RAJ

2005-09-07

K.C.SOOD

body2005
JUDGMENT K C Sood, J. (Oral).:This second appeal, under Section 100 of the Code of Civil Procedure, arises out of the judgment and decree of the learned Additional District Judge, (Presiding Officer Fast Track Court), Solan, District Solan dated 15th March, 2005. 2. Appellant Sushil Kumar was plaintiff before the trial court. He filed a suit, challenging the Will, set up by the respondent-defendant Jagdish Raj, dated 31st May, 1987. Plaintiff sought a declaration that he was entitled to the properties in question, pursuant to the Will executed in his favour by Gopi Ram dated 3rd December, 1986. The will set up by the respondent defendant Jagdish Raj, it was alleged, is forged and surrounded by suspicious circumstances and, therefore, liable to be set aside. 3. In the written statement, plea of respondent-defendant was that though the earlier will was executed in favour of the plaintiff Sushil Kumar but it stood revoked by the later will executed in his favour. 4. Learned trial court did not find any infirmity in the will nor any suspicious circumstances allegedly surrounding the will tenable and dismissed the suit of the plaintiff. 5. Aggrieved the plaintiff laid an appeal before the learned District Judge, Solan, which was decided by the learned Additional District Judge (Presiding Officer, Fast Track Court), Solan, vide his impugned judgment. The learned Additional District Judge, dismissed the appeal. 6. Still not satisfied, the plaintiff is in this second appeal. 7. The challenge to the will set up by the defendant, on the ground that the will being surrounded by suspicious circumstances, is not a genuine will. The suspicious circumstances allegedly surrounding the will are: a) by the Will in question, the Testator deprived his widow to succeed and, therefore, natural heir has been impleaded and has supported the claim of the appellant: (b) scribe was called to the house to write the will which seems improved, as the testator was merely a coolie and did not have means to call the scribe to his house; (c) there are material contradictions in the evidence of the witnesses, which makes the execution of the Will doubtful; (D) the propounder played a vital role in the execution of the will 8. So far first circumstance that natural heir, the widow, has been excluded is concerned, it is not a suspicious circumstances. So far first circumstance that natural heir, the widow, has been excluded is concerned, it is not a suspicious circumstances. The entire idea behind the execution of the 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 other only partially. This Court in Ravindra Nath Mukherjee and another vs. Panchanan Banerjee (dead by Lrs. And others) 1995 (4) SLJ 2824) observed that a will contains the last desire of a testator. The Courts, therefore, should normally act in accordance with the wishes of the person concerned. If the Courts were to doubt either the genuineness or the validity of the maker of the will, they would be loathe to work in accordance with what has been stated in the will. 9. The contention of Mr. Verma, learned Senior counsel for the appellant, that widow of the deceased supports the case of the appellant does not take the case of the appellant any further unless it is of no consequence. 10. The next contention of the learned Senior Counsel is that the testator did not have means to call the scribe to write the will and, therefore, it raises serious doubts about the validity of the will in question. The objection has no foundation. Both the courts below found as fact that scribe indeed was called by the testator, who scribed the will at the asking of the deceased Gopi Ram. 11. Learned Senior counsel for the appellant urged that one of the witnesses has stated that the house, where the will in question was executed, is located in Sadhupull and the other has stated that it was scribed in the house at Kalhog. The learned first Appellate Court while dealing with this question found that there were two houses of the Testator, one at Sadhupull and other at Kalhog and the distance between these two houses is just about half kilometer. The will was executed in the year 1987 while the witnesses were examined in the year 1987. Therefore, one of the witnesses, who deposed after a gap of ten years, could have genuinely mistaken about the house where the will was executed. The will was executed in the year 1987 while the witnesses were examined in the year 1987. Therefore, one of the witnesses, who deposed after a gap of ten years, could have genuinely mistaken about the house where the will was executed. It is noticed that testimony of none of these two witnesses about the due execution of the will is in doubt. There is nothing in their evidence which may cloud the due execution of the will. With the passage of time the memories likely to fade so far minute details are concerned. Therefore, whether the will executed in the house of the testator at Kalhog or his house at Sadhupull is of no consequence. 12. In so far question of beneficiary having taken interest in the execution of the will is concerned, this is not a suspicious circumstances. Mere presence or participation of the beneficiary, at the time of execution of the will, would not show exercise of undue influence in the execution of the will. The will in question was registered, next day of its execution, by the Sub Registrar which also shows that the contents of the will were read over and explained to the testator, who admitted the contents to be correct. It is now well settled that the presence of the beneficiary or their accompanying the testator to the office of the Sub Registrar would not show exercise of undue influence in the execution of the will. Mere presence or participation of the beneficiary in the execution of the will would not ipso-facto make the will suspicious unless something more than that is established. 13. Lastly, learned Senior Counsel contended that there are vital contradictions in the evidence of the defendants witnesses, which itself throw doubt on the genuineness of the will. So far this question is concerned both the learned trial Court and first Appellate Court did not find any material contradictions which may cloud the due execution or the genuiness of the will. It is now well settled that this court in second appeal would not reappraise the evidence on record particularly when the learned trial court and the first Appellate Court found the will to be genuine and not visited by any suspicion. 14. It is now well settled that this court in second appeal would not reappraise the evidence on record particularly when the learned trial court and the first Appellate Court found the will to be genuine and not visited by any suspicion. 14. In Nalinakshi N Rai and others vs Indira Shetty (1999) 9 SCC, 248 the will was held to be not legally proved by the trial court but the learned first Appellate Court, on reappraisal of the evidence, took a contrary view and held that the document was a genuine will. The High Court in appeal set aside the order or the first Appellate Court. The Apex Court observed: "The question that is involved in the second appeal is whether the will executed by Babu Shetty in favour of Narayana of his 1/4th 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 15. There are concurrent findings of fact that the will and validly executed by the testator. The suspicious circumstances are non-existent or untenable. It is not open to this court, in the second appeal, to reappraise the evidence to come to a different conclusion even if such conclusion is possible on reappraisal of the evidence. (See Deity Pattabhiramaswamy vs S Haryana AIR 1959 Supreme Court. 57; Naveneethammal vs Arjuna Chetty (19996) 6 SCC 166 Vidhyadhar vs Manikrao (1999) 3 SCC 573 and Hari Singh vs Kanhaiya Lai, 1999 (7) SCC 268. 16. The questions raised in this second appeal are not substantial questions of law. No merits. Dismissed.