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2010 DIGILAW 167 (PNJ)

Daya Ram v. Kanwar Pal

2010-01-08

SHAM SUNDER

body2010
Judgment Sham Sunder, J. 1. This appeal, is directed, against the judgment and decree, dated 22.10.02, rendered by the Court of Civil Judge (Junior Division), Kamal, vide which, it missed the suits of the plaintiffs, and, the judgment and decree, dated 14.09.04, rendered by the Additional District Judge (Fast Track Court), Karnal, vide which, it dismissed the appeals. 2. The facts, in brief, are that, Surji Devi (since deceased), was the exclusive owner of the property, in dispute. It was stated that Surji Devi, became widow, in her early age. She died issueless. It was further stated that she suffered a consent decree dated 15.01.86, in favour of the plaintiffs and Kanwar Pal, defendant Nos. 1, in respect of her entire property, but subsequently, she filed a Civil Suit, for setting aside of the same, in which, the parties arrived at a compromise, as a result whereof, the same was dismissed as withdrawn. It was further stated that Surji Devi (since deceased), again filed a Civil Suit, challenging the consent decree dated 15.01.86 on the ground of fraud and misrepresentation, which was decreed, vide judgment dated 15.06.95, by the Court of the then Additional Civil Judge (Senior Division), Karnal. It was further stated that, an appeal, preferred against the judgment and decree dated 15.06.95, was dismissed, by the Court of the Additional District Judge, Karnal, vide judgment dated 28.07.97. It was further stated that after the death of Surji Devi, Kanwar Pal, defendant No. 1, started claiming that the deceased, had executed a registered Will dated 30.11.93, bequeathing her entire property, in his favour. It was further stated that no such Will, was ever executed by the deceased, in favour of defendant No. 1, and, as such, the one set up by him was illegal, null and void. It was further stated that, Surji Devi (since deceased), never resided with defendant No. 1, during heer life time, and, on the other hand, she was looked after by the plaintiff. It was further stated that, at the time of the alleged execution ofthe Will, Surji Devi (now deceased), was not the owner of the property, in dispute. It was further stated that, the Will, in question, was obtained in an illegal and fraudulent manner. It was further stated that, at the time of the alleged execution ofthe Will, Surji Devi (now deceased), was not the owner of the property, in dispute. It was further stated that, the Will, in question, was obtained in an illegal and fraudulent manner. It was further stated that defendant No. 1, was many a time asked to refrain from his nefarious designs, an treat the Will dated 30.11.93, as illegal, null and void, but to no avail. Ultimately, suit for declaration and permanent injunction, was filed. 3. Kanwar Pal, defendant No. 1, put in appearance, and filed written statement, wherein, he took up various objections, and contested the suit. It was pleaded that the suit was not maintainable. Itwasfurtherpleadedthatthesuitwas bad for mis-joinder and non joinder of necessary parties. It was further pleaded that, no cause of action, accrued to the plaintiffs, to file the suit. It was admitted that Surji Devi (since deceased), was the owner of the property, in dispute. It was stated that Surji Devi, was an illiterate rustic villager. It was further stated that she became widow, at the age of 12 years. It was further stated that she died issueless. It was denied that Surji Devi (since deceased), was ever looked after by the plaintiffs. It was further denied, that the plaintiff, were the owners of the property, in dispute. It was further denied that the plaintiffs, being the successors of the deceased, were entitled to get the suit property. It was further stated that, defendant No. 1, was shown as one of the plaintiffs, in the Civil Suit, in which, the consent decree, was allegedly suffered, by Surji Devi (since deceased), when he was minor, just with a view to gain something from her. It was further stated that Surji Devi (since deceased), executed a legal and valid registered Will dated 30.11.93, in favour of defendant No. 1. It was further stated that, after the death of his mother, defendant No. 1, was brought up by Surji Devi (since deceased), and since then, he had been living with her. It was further stated that Surji Devi (since deceased), also performed the marriage of defendant No. 1. It was further denied that the property, in dispute, was not in the name of Surji Devi (since deceased), at the time of execution of the Will dated 30.11.93, in favour of defendant No. 1. It was further stated that Surji Devi (since deceased), also performed the marriage of defendant No. 1. It was further denied that the property, in dispute, was not in the name of Surji Devi (since deceased), at the time of execution of the Will dated 30.11.93, in favour of defendant No. 1. It was further stated that, there was no need of mentioning the fact of litigation, in respect of the suit land, in the Will, in question. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck :- (i) Whether the plaintiffs are successors/legal heirs of Smt. Surji Devi, deceased, as pleaded in the plaint? OPP (ii) If issue No. 1 is proved, in favour of the plaintiffs, then whether the plaintiffs are entitled to the decree for declaration as prayed for in the plaint? OPP (iii) Whether the suit is not maintainable in view of the preliminary objection No. 1 of the written statement? OPD (iv) Whether Smt. Surji Devi executed the valid Will in favour of the defendant on 30.11.93, if so, to what effect? OPD (v) Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD (vi) Whether the plaintiffs have no cause of action? OPD (vii) Relief. 5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, dismissed the suits of the plaintiffs. 6. Feeling aggrieved, two appeals, were preferred by the plaintiffs, which were dismissed, by the Additional District Judge (Fast Track Court), Karnal, vide judgment and decree dated 14.09.04. 7. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the plaintiffs/appellants. 8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The following substantial question of law arises, in this appeal, for the determination of this Court :- Whether the Courts below, on account of misreading and misappreciation of evidence and law, on the point, recorded perverse findings, that Surji Devi (since deceased), executed a legal and valid registered Will dated 30.11.93, bequeathing her entire property, in favour of Kanwar Pal, defendant/respondent No. 1? 10 The Counsel for the appellants, submitted that Civil Suit No. RBT 215/1992, instituted on 20.07.89/17.03.92, for declaration and in the alternative for declaration, with consequential relief of possession, had already been filed by Surji Devi (since deceased), the alleged testatrix, against Daya Ram, Durga, Mughla, Ram Pal, and, Kanwar Pal, beneficiaries, challenging the decree dated 15.01.86. passed in Civil Suit No. 51 of 1986, on the ground of fraud. He further submitted that, the said decree was, ultimately, set aside, vide judgment and decree dated 15.06.95. He further submitted that, under these circumstances, there was no reason, to execute the Will dated 30.11.93, by Surji Devi (since deceased), in favour of Kanwar Pal, her collateral, when the allegation of fraud, in obtaining the decree, referred to above, had already been levelled against him. He further submitted that, even no mention of the pending litigation, in the Will, was made, by Surji Devi. He further submitted that, had the Will dated 30.11.93, been executed; the same would not have been kept a closely guarded secret for a number of years. He further submitted that the appeal, filed against the judgment and decree dated 15.06.95, was dismissed, by the Court of Additional District Judge, Karnal. He further submitted that Pali Ram, DW2, an attesting witness of the Will dated 30.11.93, belonged to Maloo Patti, whereas, Surji. Devi, belonged to, Harjas Patti, He further submitted that the conduct of Pali Ram, DW2 attesting witness of the Will, was unnatural. He further submitted that above the alleged thumb impression of Surji Devi, on the Will Dl, dated 130.11.93, words RTI or LTI, were not written. He further submitted that the space in between the lines of the body of the Will, was uneven, which clearly showed, that on blank paper, the alleged thumb impression of Surji Devi, was obtained, and, thereafter, the matter, was scribed therein. He further submitted that the Courts below, did not take into consideration, the aforesaid suspicious circumstances, surrounding the Will, and; as such, recorded perverse findings, in holding the due execution, legality and validity thereof. He further submitted that, no reason, was recorded, in the Will, as to why, the Plaintiffs/appellant were ignored, at the time of execution of the Will, by Surji Devi, when they and Kanwar Pal, were related to her, in equal degrees. He further submitted that, no reason, was recorded, in the Will, as to why, the Plaintiffs/appellant were ignored, at the time of execution of the Will, by Surji Devi, when they and Kanwar Pal, were related to her, in equal degrees. He further submitted that the judgements and decrees of the Courts below, being illegal, were liable to be set aside. 11. On the other hand, the Counsel for respondent No. 1, submitted that the Courts below, recorded correct findings, that Surji Devi, executed a legal and valid Will dated 30.11.93, exhibit Dl, in favour of Kanwar Pal, who was looking after her, as she was an old lady. He further submitted that the Will, was got registered, which also clearly proved the execution and genuineness thereof. He further submitted that, when the decree dated 15.01.86, was passed, against Surji Devi, which was,, later on set aside, vide judgement and decree dated 15.06.95, Kanwar Pal, was minor, and, as such, the suit, filed by him, without being impleaded, through his natural guardian, was a nullity, in the eye of law. He further submitted that the mother of Kanwar Pal, had already died. He further submitted that, after the death of his wife, the father of Kanwar Pal, performed second marriage, and, as such, he (Kanwar Pal), was brought up by Surji Devi. He further submitted that, Kanwar Pal, was residing with Surji Devi, as his mother, was her niece and was looking after her. Even his marriage was performed by Surji Devi. He further submitted that the judgements and decrees of the Courts below, being legal and valid, are liable to be upheld. 12. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal is liable to be dismissed, for the reasons to be recorded, hereinafter. In. He further submitted that the judgements and decrees of the Courts below, being legal and valid, are liable to be upheld. 12. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal is liable to be dismissed, for the reasons to be recorded, hereinafter. In. Madvan Nair v. Bhaskar Pillai, (2005) 10, SCC 533, Harjeet Singh v. Amrik Singh, (2005) 12, SCC 270, H.P. Pyarejan v. Dasppa 2006(1) R.C.R.(Civil) 646: JT 2006(2), SC, 228, and Gurdev Kaur and others v. Kaki and others, 2006(2) R.C.R.(Civil) 561: (JT 2006 (5) SC, 72, while interpreting the of Section 100 of the Code of Civil Procedure, the principle law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the trial Court and the first Appellate Court, even if, the same are grossly erroneous, as the legislative intention was, very clear that the legislature never wanted second appeal to become a "third trial on facts" or "one more dice in the gamble" It was further held that the jurisdiction..ofthe High Court in interfering with the. judgements of the Courts below, is confined only to the hearing of substantial questions of law. The first question that arises for consideration, is, as to whether, Surji Devi (since deceased), executed a legal and valid Will dated 30.11.93, exhibit Dl, in favour of Kanwar Pal. For proving the execution of Will attesting witnesses of the Will dated 30.11.93. exhibit D1. He stated that he knew Surji Devi, widow of Munshi Ram, resident of Salwan. It was further stated by him, that the Will dated 30.11.93, exhibit D1, was scribed, by Prem Chand Gupta, Deed Writer, at the instance of Surji Devi. He further stated that, at that time, Surji Devi, was in sound disposing mind. He further stated thatthe contents of the Will, were read over and explained, to Surji Devi, in his presence, and, in the presence of Baru Ram, Namberdar, another attesting witness of the same. After admitting the contents of the same to be correct, she appended her thumb impression, in their presence, and they attested the same, in her presence. It was further stated by him that, thereafter, the Will Dl, was presented, before the Sub-Registrar. The Sub-Registrar made an inquiry, from. After admitting the contents of the same to be correct, she appended her thumb impression, in their presence, and they attested the same, in her presence. It was further stated by him that, thereafter, the Will Dl, was presented, before the Sub-Registrar. The Sub-Registrar made an inquiry, from. Surji Devi, regarding the execution of the Will, to which, she replied, that she had executed the same of her free will, in favour of Kanwar Pal, as his mother, was her niece. He further stated that, before the Sub Registrar also, Surji Devi, thumb marked the Will, exhibit Dl, whereas, they attested the same. He also stated that Kanwar Pal was residing with Surji Devi, and, he was looking after her, as also managing her agricultural land, and other property. It was further stated by him, that Baru Ram, the other attesting witness of the Will D1, had already demised. Prem Chand Gupta, DWI, also made a statement, in line with the statement of Pali Ram. The mere fact, that Pali Ram, belonged to another Patti, whereas, Surji Devi, belonged to another Patti, but both of them were residents of the same village, did not mean, that he could not attest the Will Dl, especially when he knew her personally. Nothing was brought, on the record, to prove, that Surji Devi, was not in sound disposing mind, at the time of execution of the Will. The execution of the Will, thus, stood proved, from the evidence of Pali Ram, DW2, an attesting witness thereof. Undoubtedly, mere proof of execution of the Will, in itself, is not sufficient, to hold the same, to be legal and valid. The propounder, is required, to dispel all the suspicious circumstances, surrounding the Will. 13. No doubt, the appellants, were not given anything by Surji Devi, while executing the Will. The appellants, are collateral of Surji Devi. On the other hand, Kanwar Pal, is related to Surji Devi, as his mother, was her niece. In Will Dl, it was in clear-cut terms, recited by Surji Devi, that she being a widow, aged about 85 years, was residing with Kanwar Pal, beneficiary, who is related, to her, as great grandson. It was also recited, in the Will, that Kanwar Pal, was serving her. It was also recited, in the Will, that he had been living with her since childhood and she had brought him up. It was also recited, in the Will, that Kanwar Pal, was serving her. It was also recited, in the Will, that he had been living with her since childhood and she had brought him up. It was also recited, in the said Will, that she had performed his marriage. It was also mentioned, in the Will, that being completely satisfied with the services, rendered by Kanwar Pal. she was executing the Will, in his favour, bequeathing her entire movable and immovable property. Even, in P1. copy of the plaint of Civil Suit No. RBT-215/1992, instituted on 20.07.89/ 17.03.92, vide which, the decree dated 15.01.86, was challenged, by Surji Devi, and it was decided, in her favour, on 15.06.95, it was mentioned that out of the defendants therein (in that suit), defendant No. 5 Kanwar Pal, was very close to her, and she could trust him only. In para 5 of copy of the plaint P1, it was also stated by Surji Devi, that mother of Kanwar Pal. defendant No. 5, therein, used to cook her meals, and he (Kanwar Pal), used to bring some indigenous medicines for her. In para 14 (d) of the plaint P1, it was also stated by her, that she had reposed full confidence, in defendant No. 5, therein, i.e. Kanwar Pal. Since Kanwar Pal, had been residing with Surji Singh, since childhood, and she had brought him up, as also performed his marriage, and he was serving her, during her life time,, she being a widow and an old lady, there was every reason for Surji Devi, to execute the Will dated 30.11.93, exhibit Dl. in his favour. It was, under these circumstances, that the other heirs of the equal degree, wete ignored by Surji Devi, while executing the Will. Even otherwise. Will, is executed to deflect from the natural course of succession. If. while executing the Will, some heirs of the equal degree, are ignored, by the testatrix, that cannot be said to be a suspicious circumstance. In Sadsivam v. K. Doraisamy, 1996(1), Apex Court Journal, 1 (SC), it was held, that divesting of close relations, is not a suspicious circumstance, as divesting of close relations is the purpose of execution of the Will. In Sadsivam v. K. Doraisamy, 1996(1), Apex Court Journal, 1 (SC), it was held, that divesting of close relations, is not a suspicious circumstance, as divesting of close relations is the purpose of execution of the Will. Even if, it is assumed, that this was a suspicious circumstance, the same stood dispelled, from the recitals of the Will, exhibit Dl, and the evidence of Prem Chand Gupta, Deed Writer, and Kanwar Pal, beneficiary. 14. The suit for setting aside the decree dated 15.01.86, which was obtained, by the plaintiffs/appellants, by fraud, in respect of the property, in question of Surji Devi, was filed, by her. on 20.07.89. Atthattime, the Will dated 30.11.93, had not come into existence. Under these circumstances, the question of mentioning the same, in the plaint, did not at all arise. No doubt, in the Will, she did not mention about the litigation, pending between her and also the appellants and Kanwar Pal. That fact alone could not be said to be sufficient, to hold, that the Will, was not a legal and valid document. Even otherwise, in the suit, which was filed by Surji Devi, for setting aside the decree dated 15.01.86, the question involved was. as to whether, the same (said decree) was the result of fraud, or not. The question of legality and validity of the Will, dated 30.11.93. was not involved, in that litigation. As stated above, the main dispute, in the earlier suit, was only, with regard to the legality and validity of the decree dated 15.01.86. the same having been filed, much before the date of execution of the Will, and, as such, the question of mentioning the same (Will) in the suit did not at all arise. Even, in the written statement filed, in that suit, Kanwar Pal, admitted the claim, of Surji Devi. It means that, he disassociated himself, from the other defendants (now plaintiffs/appellants), in that suit. Even. Kanwar Pal. was minor, at the time, when the decree dated 15.01.86, was passed. This fact, was not shown, by the appellants, in that suit, and. as such, the question of playing fraud, by him. with Surji Devi, did not at all arise. Thus, the Courts below, were right, in coming to the conclusion, that Kanwar Pal. did not play any fraud with Surji Devi, at any point of time, and. This fact, was not shown, by the appellants, in that suit, and. as such, the question of playing fraud, by him. with Surji Devi, did not at all arise. Thus, the Courts below, were right, in coming to the conclusion, that Kanwar Pal. did not play any fraud with Surji Devi, at any point of time, and. as such, the Will, executed, in his favour, by her, was legal and valid. The aforesaid suspicious circumstance, highlighted by the Counsel for the appellants, stood satisfactorily dispelled. 15. The perusal of the Will, goes to show that spacing in three fourth portion of the writing of the Will, was wider than the spacing, in the remaining portion. It did not at all cast any doubt on the legality and validity of the Will. Every deed writer has his own pattern of scribing a document. Even otherwise, while writing a document, in hand, on a plain paper, it is not always possible to maintain perfectly equal space, in between the lines. Since, the Will, was registered by an Officer, authorized, in that regard, the certificate given by him, regarding the due execution thereof, goes a longway, to prove the genuineness of the same. It, therefore, could not be said to be a suspicious circumstance, surrounding the Will. The submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same stands rejected. 16. The mere fact that, above the thumb impression of Surji Devi, LTI or RTI, was not written, did not make any difference. However, above the thumb impression of Surji Devi, her name, was written, which clearly proved, that the same belonged to her. It is not that, above the thumb impression of Surji Devi, RTI or LTI, was not written, but even above the thumb impressions of Pali Ram and Baru Ram, LTI or RTI, was not written. The scribe of the Will, might have been adopting the same pattern, while scribing the other documents too. In this view of the matter, this could not be said to be a suspicious circumstance, surrounding the Will. The submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same stands rejected. 17. The findings, recorded by the Courts below, on the aforesaid points, being based on the correct reading and due appreciation of evidence, and law. The submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same stands rejected. 17. The findings, recorded by the Courts below, on the aforesaid points, being based on the correct reading and due appreciation of evidence, and law. on the point, do not suffer from any illegality or perversity, and warrant no interference, by this Court. The judgements and decrees of the Courts below, are, thus, liable to be upheld. 18. The substantial question of law, depicted above, is answered, against the appellants. 19. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed with costs. Appeal dismissed.