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2009 DIGILAW 114 (PNJ)

Nobat Ram v. Ram Ji Lal (dead) by L. Rs

2009-01-15

MAHESH GROVER

body2009
JUDGMENT Mahesh Grover, J.:-This appeal by the defendant is directed against the judgments of the learned trial Court dated 20.4.2001 and the first Appellate Court dated 28.5.2004. 2. Gokal Chand son of Nihal Chand died leaving behind 8 sons and 2 daughters. The appellant claimed that he had succeeded to the entire estate of Gokal Chand on the basis of Will which was questioned by the plaintiffs/respondents by filing a suit for declaration to the effect that plaintiffs No.1 to 6 were owners in possession of 66/90 share in equal shares, plaintiff No.7 was owner in possession of 1/90 share, plaintiffs No.8 to 15 were owners in possession of 11/90 shares in equal shares, defendant No.1 was owner in possession of 11/90 shares, whereas defendant No.3 was owner in possession of 1/90 shares in the land measuring 34 kanals 16 marlas comprised in Khewat No.284/272, Khatoni No.399, Khasra and Kills Nos.126//16 (3-16), 127//11/2(7-0), 12(8-0), 19(8-0), 20(8-0), situated at Moja Kirawar, Tehsil Tosham, District Bhiwani, vide jamanandi for the year 1989-90. 3. The appellant pleaded that he was looking after his father who was staying with him in the last days of his life and as a recognition of his love and affection and care the entire property was bequeathed to him by virtue of Will dated 10.2.1978. Gokal Chand is said to have died on 1.1.1994. The mutation regarding the property on the basis of Will was sanctioned on 24.1.1994. The suit was filed in February 1994. Initially, the plaintiffs/respondents pleaded that the suit land was ancestral and could not have been willed away but during the course of proceedings before the learned trial Court they conceded that the property was self acquired and could have been alienated by Will, but seriously questioned the execution of the Will. The learned trial Court framed the following issues :- 1. Whether the plaintiffs are owners-in-possession of the property to the extent in the share detailed and described in the head-note of the plaint? OPP 2. Whether the Will dated 10.2.1978 was validly and duly executed?OPD 2.A Whether the property in dispute is ancestral in the hands of Gokal Chand, since deceased, if so its effect ?OPP 3. If the above issues are proved, whether the plaintiffs are entitled to injunction as prayed for ?OPD 4. Whether the plaintiffs have no cause of action to file the present suit ?OPD 5. If the above issues are proved, whether the plaintiffs are entitled to injunction as prayed for ?OPD 4. Whether the plaintiffs have no cause of action to file the present suit ?OPD 5. Whether the plaintiffs have no locus-standi to file the present suit ?OPD 6. Whether the plaintiffs are estopped to file the present suit by their own act and conduct? OPD 7. Whether the suit is bad for non-joinder of necessary parties and mis-joinder of parties? OPD 8. Whether the suit is nullity as alleged in Para No.6 of the preliminary objections? OPD 9. Relief. 4. Upon appraisal of the evidence before it, the trial Court came to the conclusion that the Will was shrouded by suspicious circumstances and did not disclose any reason why the other natural successors were excluded from succession. 5. In appeal, the learned first Appellate Court also concluded as above. 6. In the instant appeal learned counsel for the appellant has strenuously urged that mere exclusion of the other natural successors does not imply that the Will necessarily is a result of collusion and fraud. It was further contended that there is overwhelming evidence on record to suggest that deceased Gokul Chand was residing with him which fact is also strengthened from the fact that the plaintiffs/respondents in their testimony have admitted the possession of the appellant on the suit land. It was contended that he could have entered the possession of the suit property only if the deceased had willed it that way. 7. Learned counsel for respondents No.2,3 and 4, on the other hand, contended that the Will was surrounded by a number of circumstances which raised a suspicion and there was no reason to exclude the other natural heirs from the succession and that even the contents of the Will have not been proved in accordance with law. It was further contended that only the first page of the Will was produced initially and the entire contents were never brought on record and were never put to the witnesses. So much so, DW2 Dharam Chand, Advocate, the attesting witness of the Will in question, stated in cross-examination that only first page of the Will and endorsement made on the back of the said page were brought to his notice. So much so, DW2 Dharam Chand, Advocate, the attesting witness of the Will in question, stated in cross-examination that only first page of the Will and endorsement made on the back of the said page were brought to his notice. He categorically stated that except the aforesaid page and the endorsement made on the back of said page, no other page of the Will in question was shown to him during his examination in the Court. On the strength of this, learned counsel for the respondents contended that no credence could be given to the Will and, therefore, the courts below have rightly concluded that the Will was not a genuine document. He thus prayed that the second appeal be dismissed. 8. After hearing the learned counsel for the parties and considering the fact that the Apex Court in Major Singh v. Rattan Singh (dead) by L.Rs. & Ors. JT 1997(1) S.C. 404 has held that the interpretation of a Will is a question of law. I commence upon to answer the said question on the basis of the facts which are on record. 9. The foremost question that arises is whether the Will was ever proved in accordance with law. The testimony of DW2 Dharam Chand, Advocate is revealing as he has categorically stated that only one page of the Will and endorsement made on the back of the said page was brought to his notice. The appellant had not made any effort to produce the entire Will. In this view of the matter, the provisions of Section 68 of the Indian Evidence Act have not been complied with and the Will has not been proved in accordance with law. That apart, the first Appellate Court as also the trial Court noticed the following circumstances which cast a suspicion on the execution of the Will :- (i) A perusal of Will in question clearly reveals that Gokal Chand was blessed with eight sons and two daughters and further left behind widow Smt. Sham Kaur. No cogent reasons have been given in the Will Ex.D3 as to why Gokal Chand disinherited his seven sons, two daughters and wife to succeed to his estate. On the other hand, defendant Nobat Ram while examining himself as DW3 has admitted during his cross-examination that his father used to distribute the income accrued from agricultural land amongst his sons. No cogent reasons have been given in the Will Ex.D3 as to why Gokal Chand disinherited his seven sons, two daughters and wife to succeed to his estate. On the other hand, defendant Nobat Ram while examining himself as DW3 has admitted during his cross-examination that his father used to distribute the income accrued from agricultural land amongst his sons. Apart from that, DW6 Bala Devi, daughter of Gokal Chand, who has come to the rescue of defendant Nobat Ram has categorically admitted during her cross-examination that relations between her brothers and father were quite cordial and they used to visit their respective places off and on. These circumstances lead to clear inference that Gokal Chand since deceased used to look after the needs of all his sons and in this scenario, there was no reason on his part to disinherit his natural and legal heirs from his estate. (ii) A perusal of Will in question Ex.D3 clearly reveals that testator had two daughters namely Sarjo Devi and Balkaur and while disinheriting their claim in his estate, testator has given the reason that both his daughters have already been married and at the time of their marriage sufficient amount was spent. However, the aforesaid recital in the Will is totally against factual position. DW6 Bala Devi, daughter of Gokal Chand has categorically testified that after the execution of Will in question the same was handed over to her by her father and at the relevant time she was unmarried. Further, during her cross-examination DW6 Bala Devi has admitted that she was married about fourteen/fifteen years back and the name of her sister was Surja. It is pertinent to mention here that testimony of DW6 Bala Devi was recorded in the Court on 21.8.2000. In this view of the matter, DW6 Bala Devi was married somewhere in the year 1985-86 whereas Will in question was allegedly executed in the year 1978. Since, Will in question depicts that at the relevant time i.e. in the year 1978, Bala Devi was already married but the said recital in the Will runs contrary to the testimony of DW6 Bala Devi, who claims herself to be unmarried at the time of execution of alleged Will and further as per her own version she was married somewhere in the year 1985-86. This fact alone causes major suspicion in the execution of Will.” 10. This fact alone causes major suspicion in the execution of Will.” 10. Mere exclusion of the natural heirs from succession although may not be construed to be a suspicious circumstance but at the same time a prudent testator while expressing his last will and testament would certainly be expected to state the reasons for his preference of one son to the exclusion of all other successors. In the instant case, the deceased left behind 8 sons and 2 daughters. Obviously, no mention has been made as to why out of the entire lot he has preferred the appellant. A cumulative effect of the aforesaid reasoning is that the Will has neither been proved and in any eventuality the same does not appear to be a natural willful expression of a testator. No merit. Dismissed. ------------------