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2012 DIGILAW 131 (HP)

Karnil Singh v. Sita Devi

2012-03-26

RAJIV SHARMA

body2012
JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree dated 1.12.2008 rendered by the learned District Judge, Hamirpur in Civil Appeal No.84 of 2007. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that respondent-plaintiff (hereinafter referred to as 'plaintiff' for convenience sake) filed a suit seeking declaration to the effect that she is owner in possession of the land detailed in the plaint as per jamabandi for the year 1994-95. Mutation No. 193 has been wrongly sanctioned and she has also prayed for consequential relief of permanent prohibitory injunction for restraining the appellant-defendant (hereinafter referred to as 'defendant' for convenience sake) from interfering in the suit land. The suit land was previously owned by her husband Rattan Singh, who died on 9.3.1998. He was looked after by the plaintiff and she has performed his last rites. Defendant has no concern whatsoever with the suit land. However, he is proclaiming that the deceased has executed a 'will' in his favour. 3. Suit was contested by the defendant. According to defendant, he had been looking after the deceased, who has executed the 'will' in sound disposing mind in his favour on 7.3.1998. 4. Replication was filed by the plaintiff. Issues were framed by the learned Civil Judge (Senior Division) on 24.12.2001. Civil Judge (Senior Division) decreed the suit with a declaration that she is owner in possession of he suit land with consequential relief of permanent prohibitory injunction restraining the defendant from interfering with the suit land in any manner. Defendant feeling aggrieved by the judgment passed by the Civil Judge (Senior Division) preferred an appeal before the learned District Judge, Hamirpur. He dismissed the same on 1.12.2008. Hence, the present Regular Second Appeal. It was admitted on the following substantial questions of law: 1. Whether the impugned judgment and decree is a result of misread and misinterpretation of statements of DWs-1 to 3? 2. Whether association of outsider attesting witness to the will can be a suspicious circumstance? 3. Whether a registered will can be disbelieved due to minor discrepancies in statement of the attesting witnesses to a will? 5. Mr. T.S. Chauhan has strenuously argued that both the courts below have misread and misconstrued the oral as well as documentary evidence. According to him, the 'will' Ex.DW-2/A was validly executed. 3. Whether a registered will can be disbelieved due to minor discrepancies in statement of the attesting witnesses to a will? 5. Mr. T.S. Chauhan has strenuously argued that both the courts below have misread and misconstrued the oral as well as documentary evidence. According to him, the 'will' Ex.DW-2/A was validly executed. He then argued that the 'will' was registered and there was no occasion for the courts below to disbelieve the same. 6. Mr. Romesh Verm a has supported the judgments and decrees passed by both the courts below. 7. I have heard the learned counsel for the parties and have perused the record carefully. 8. Since all the substantial questions of law are interconnected and interlinked, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. 9. PW-1 Sita Devi has testified in her examination-in-chief that Rattan Singh was her husband. He died four years back issueless. She was in possession of the suit land. Her husband remained ill and died within 15 days of his illness. He was unconscious before his death for 8 days. She had been looking after him. She has denied that she and her husband were looked after by the defendant for the last 10 years. She has also denied the suggestion that expenditure for medicine of her husband was incurred by the defendant. She is not aware that her husband has executed a 'will' in her favour and in favour of defendant on 7.3.1998. She has denied the suggestion that her husband had fully recovered before his death. 10. PW-2 is Dinesh Kumar Registration Clerk in Tehsil Office, Bhauranj. According to him, Sub-Registrar was present on 7.3.1998. 11. PW-3 is Mathura Dass. He remained Pradhan with effect from December, 1995 to October, 1998. He knew Rattan Singh. He has identified his signatures on Ex.DW-2/A. The 'will' was brought before him on 11/12.3.1998 by Ward Panch, Puran Chand, Ex-Ward Panch Sant Ram and Karnail Singh. He was apprised by them that Rattan Singh has dictated a 'will' and Rattan Singh has put his signatures and he also put his signatures. He signed the document in good faith. In his cross-examination, he has admitted that the 'will' was not scribed in his presence. He ha s also testified that neither Rattan Singh nor witnesses have signed before him. He had gone to Bassi for dictating the 'will'. He signed the document in good faith. In his cross-examination, he has admitted that the 'will' was not scribed in his presence. He ha s also testified that neither Rattan Singh nor witnesses have signed before him. He had gone to Bassi for dictating the 'will'. In his cross- examination he has admitted that Rattan Singh has died before 11/12.3.1998. He ha s admitted that endorsement made on Ex.DW-2/A is in his writing but he has also admitted that it was not signed . He has denied that he had gone to Tehsil Office Bassi, on 7.3.1998. He has signed the document on 12.3.1998 in his house. He has denied the suggestion that defendant has not visited him. He has denied in his cross- examination that he has put his signatures in presence of Rattan Singh, Mehar Chand and Puran Chand. He has also denied that the witnesses have signed in his presence. 12. PW-4 is Karnail Singh. He knew deceased Rattan Singh. He has identified his signatures mark 'D' on Ex. DW-2/A. He has categorically stated in his cross-examination that he has put his signatures after the death of Rattan Singh. He has signed this document of his own. The 'will' was already written. Rattan Singh was ill. He was reticent. He has denied that Rattan Singh and other witnesses have signed in his presence. Rattan Singh was not looked after by him. Defendant has never served deceased in his presence. He has also denied the suggestion in his cross-examination that Karnail Singh was looking after Rattan Singh. 13. PW-5 is Puchhlender Singh. He has only proved Ex.PW-5/A and PW-5/A. 14. DW-1 Karnail Singh has deposed that Rattan Singh was his uncle (Taya). Rattan Singh had no issue. He had been looking after Ra ttan Singh and plaintiff for the last 10 years. He has performed the last rites at Haridwar. Rattan Singh has executed the 'will' in his and plaintiff's favour. The plaintiff was present at the time of attestation of mutation. Rattan Singh died all of a sudden. He was hale and hearty before his death. He was in sound disposing mind. He had been paying money to the plaintiff for three years even after the death of Rattan Singh. In his cross-examination, he has stated that he is working in Punjab Irrigation Department. He has been allotted a house in Pathankot Colony. He was hale and hearty before his death. He was in sound disposing mind. He had been paying money to the plaintiff for three years even after the death of Rattan Singh. In his cross-examination, he has stated that he is working in Punjab Irrigation Department. He has been allotted a house in Pathankot Colony. He has admitted in his cross-examination that Rattan Singh was paying separate house tax and his name was registered in separate Pariwar register and ration card. He could not produce any record of the expenditure incurred by him at Haridwar. He has admitted that the 'will' was not written in his presence. 15. DW-2 Puran Chand has testified that he knew the parties. According to hi m, defendant used to look after the plaintiff and Rattan Singh. Rattan Singh has got the 'will' executed in favour of plaintiff and defendant. He has signed the document as witness. According to him, the 'will' was scribed by the Petition Writer at the instance of Rattan Singh and thereafter he has signed the same. At that time Mehar Singh was present. Rattan Singh has signed the document in presence of both the witnesses. Pradhan has also attested the same. Rattan Singh had visited Tehsildar. He was told that Tehsildar was not present and they should come on other date. Rattan Singh was in sound disposing mind when the will was executed. In his cross-examin ation, he has stated that the 'will' was written at Bassi. He had gone all alone. Then stated that he and Rattan Singh went together. They were not accompanied by anybody else. At the time of execution of the 'will', there were only two persons. He has admitted that they have not visited the office of Tehsildar. Tehsildar was not present. In his presence only Mehar Chand has signed the document and nobody else has signed. He has admitted that when he signed the document neither Kartar Sing h nor Sant Ram had signed it. 16. DW-3 Mehar Chand has testified that Rattan Singh has executed 'will' in favour of plaintiff and defendant. He was one of the witnesses of the same. He was asked by Rattan Singh to witness the document. This was written in Tehsil Bhauranj. It was written by Petition Writer Gian Chand. Th e second witness was Puran Chand. Rattan Singh has signed in his presence. He was one of the witnesses of the same. He was asked by Rattan Singh to witness the document. This was written in Tehsil Bhauranj. It was written by Petition Writer Gian Chand. Th e second witness was Puran Chand. Rattan Singh has signed in his presence. He was in sound disposing mind. They have signed in presence of Pradhan. Rattan Singh and two witnesses were also there. In his cross-examination, he has stated that at the time when the 'will' was written, Gian Chand, Mathura Dass and Puran Chand were also present on the spot. He has reiterated the same in his further cross-examination. He has also testified that he has signed at two places, but in the 'will' his signatures are at one place. 17. What emerges from the perusal of the evidence is that Rattan Singh died on 9.3.1998 and the 'will' was executed on 7.3.1998. He was old and ailing. Defendant could not substantiate that he had been looking after the plaintiff and deceased Rattan Singh. He was living at Pathankot. It has come in the statement of PW-1 Sita Devi that deceased Rattan Singh died within 15 days of his illness and was unconscious before his death. PW-3 Mathura Dass, as discussed above, has testified that his signatures were obtained in the 'will' Ex.DW-2/A on 11/12.3.1998. He signed the same in good faith on the insistence of Puran Chand, Sant Ram and Karnail Singh. He has also stated that the 'will' was not scribed in his presence. As far as the endorsement in circle 'D' is concerned, he has stated that it was done subsequently. Similarly, PW-4 Kartar Singh has testified that he signed the 'will' after 3-4 days on the insistence of Puran Chand. He has also reiterated that the 'will' had already been written. He had never gone to Bassi for that purpose. DW-2 Puran Chand has told that the 'will' was got scribed by Rattan Singh. In his cross-examination, he has testified that only he had gone with Rattan Singh to Bassi. Later on, he stated that Mehar Chand has also signed in his presence. DW-3 Mehar Ch and has also testified that the 'will' was got written by Rattan Singh testator in his presence. According to him, at that time Gian Chand, Mathura Dass, Rattan Singh an d Puran Chand were also present. Later on, he stated that Mehar Chand has also signed in his presence. DW-3 Mehar Ch and has also testified that the 'will' was got written by Rattan Singh testator in his presence. According to him, at that time Gian Chand, Mathura Dass, Rattan Singh an d Puran Chand were also present. In his cross-examination, he has admitted that Mathura Dass and Puran Chand and none else were present. There is no date on the endorsement Ex. DW- 2/A. The endorsement was made subsequently. 18. According to Kartar Singh and Mathura Dass, it was made after the death of Rattan Singh though it is mentioned in the endorsement "in presence of Rattan Singh testator". PW-2 Dinesh Kumar has admitted that on 7.3.1998, Sub Registrar was present in the office. The Signatures of Rattan Singh on Ex.DW-2/A are at variance with his earlier signatures on Ex.PW- 5/A and Ex.PW-5/B. Both the courts below have correctly appreciated the oral as well as documentary evidence led by the parties and thus there is no need to interfere with the judgments passed by the courts below. 19. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs.