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2012 DIGILAW 176 (PNJ)

Manohar Lal v. Kewal Krishan

2012-01-31

L.N.MITTAL

body2012
JUDGMENT Mr. L.N. Mittal, J. (Oral) - Plaintiff Manohar Lal having failed in both the courts below has filed the instant second appeal. 2. Plaintiff’s grand-father Harbhaj Rai was owner of the suit land measuring eight kanals and half marla. Harbhaj Rai had five sons i.e. defendants no. 1 and 2, Mool Raj predecessor of defendants no. 3 to 7, Jai Krishan predecessor of defendants no. 8 to 11 and Bal Krishan predecessor of plaintiff and defendants no. 14 to 18 and also had two daughters i.e. defendants no. 12 and 13. Harbhaj Rai executed registered Will dated 23.5.1969 in favour of all his five sons regarding his ancestral house. There is no dispute about the same. 3. The plaintiff-appellant in his suit alleged that Harbhaj Rai executed another Will dated 15.6.1969 in favour of the plaintiff-appellant alone regarding the suit land measuring eight kanals half marla. Accordingly, the plaintiff sought declaration that he is owner in possession of the suit land and also sought permanent injunction restraining defendants no. 3 to 7 from interfering in possession of the plaintiff over the suit land and from dispossessing him therefrom. 4. Only defendants no. 3 to 7 i.e. successors of Mool Raj contested the suit. Defendant nos. 1 and 2 were proceeded ex parte. Defendants no. 8, 12, 13 and 14 admitted claim of the plaintiff. No written statement was filed on behalf of defendants no. 9 to 11. 5. Defendants no. 3 to 7 denied the alleged Will set up by the plaintiff. Various other pleas were also raised. 6. Learned Civil Judge (Senior Division), Hoshiarpur vide judgment and decree dated 25.10.2007 dismissed the plaintiff’s suit. First appeal preferred by the plaintiff has been dismissed by learned District Judge, Hoshiarpur vide judgment and decree dated 19.9.2009. Feeling aggrieved, the plaintiff has preferred the instant second appeal. 7. I have heard learned counsel for the parties and perused the case file. 8. Counsel for the appellant vehemently contended that plaintiff-appellant has led sufficient evidence to prove impugned Will dated 15.6.1969 by examining one marginal witness thereof. It was alleged that plaintiff’s evidence in this regard stands unrebutted. It was accordingly contended that the Will is duly proved. Reliance in support of this contention has been placed on two judgments of Hon’ble Supreme Court in Pentakota Satyanarayana & Ors. It was alleged that plaintiff’s evidence in this regard stands unrebutted. It was accordingly contended that the Will is duly proved. Reliance in support of this contention has been placed on two judgments of Hon’ble Supreme Court in Pentakota Satyanarayana & Ors. vs. Pentakota Seetharatnam & Ors., 2005 (8) SCC 67 and Anil Rishi vs. Gurbaksh Singh, [2006(2) Law Herald (SC) 1455] : 2006(2) Apex Court Judgments 427 (SC) and a judgment of this Court in Krishna Devi & Ors. vs. Amarjit & Ors., 2004(2) Civil Court Cases 593 (P&H). It was also contended that none of the contesting defendants has stepped into witness box and therefore, adverse inference arises against them, as held by Hon’ble Supreme Court in Iswar Bhai C. Patel @ Bachu Bhai Patel vs Harihar Behera & Anr., 1999(2) Civil court Cases 1 (SC). It was also contended that some stray sentence cannot be picked up out of the cross-examination of a witness to draw inference in isolation, as observed by Hon’ble Supreme Court in Boramma vs. Krishna Gowda & Ors., 2000(2) Apex Court Journal 504 (SC). 9. I have considered the aforesaid contentions but the same cannot be accepted in the facts and circumstances of the instant case. Onus of proving the impugned Will set up by plaintiff was on him. By examining an attesting witness of the Will, the plaintiff-appellant might have complied with requirement of section 68 of the Evidence Act. However, this is not sufficient to hold the impugned Will to be genuine one. The plaintiff appellant being propounder of the Will was supposed to remove or explain all the suspicious circumstances surrounding the Will, but the plaintiff – appellant has miserably failed to do so. It is admitted case that Harbhaj Rai had executed registered Will on 23.5.1969 bequeathing ancestral house in favour of all his five sons. However, just three weeks thereafter, there was no occasion for Harbhaj Rai to execute the impugned Will dated 15.6.1969 in favour of the plaintiff alone who is grandson of the testator. Moreover, when the earlier Will was got registered by Harbhaj Rai, he would not have executed impugned unregistered Will in favour of plaintiff just three weeks after the registered Will in favour of all his five sons. Moreover, when the earlier Will was got registered by Harbhaj Rai, he would not have executed impugned unregistered Will in favour of plaintiff just three weeks after the registered Will in favour of all his five sons. There was no occasion for Harbhaj Rai to disinherit his sons from the suit land which was the only land owned by Harbhaj Rai, in addition to the ancestral house. Plaintiff-appellant admitted that all five sons of Harbhaj Raj were residing in ancestral house along with Harbhaj Rai. Harbhaj Rai expired in the house of defendant no. 2. Harbhaj Rai had equal love and affection for all his sons. In these circumstances, there was no occasion for Harbhaj Rai for excluding his sons from the inheritance of suit land. 10. It may also be added that the Will in question has seen the light of the day for the first time when the instant suit was instituted on 13.9.1999 whereas Harbhaj Rai had died in the year 1977. Thus, the Will was set up for the firs time 22 years after the death of the alleged testator Harbhaj Rai, although the plaintiff admitted that both his parents had informed him of the execution of the Will on the date of execution thereof itself. Moreover, both parents of the appellant – plaintiff were present when the Will was allegedly executed. 11. All the aforesaid suspicious circumstances along with other circumstances noticed by both the courts below have not been explained or dispelled by the plaintiff-appellant. The Will set up by the plaintiff-appellant has, therefore, been rightly discarded by the courts below. Concurrent finding recorded by the courts below discarding the said Will does not suffer from any infirmity much less perversity or illegal nor it is based on misreading or mis-appreciation of evidence so as to call for interference in second appeal. Non appearance of any contesting defendant in the witness box has no bearing regarding the genuineness of the Will which had to be proved by the plaintiff-appellant. In the instant cases, stray sentences have not been picked up from cross-examination of the plaintiff-appellant to return finding against him. On the other hand, above mentioned admissions by the plaintiff-appellant are categorical in his cross-examination. No question of law much less substantial question of law arises for adjudication in the instant second appeal. The appeal is completely meritless and is accordingly dismissed. ----------------------