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2012 DIGILAW 259 (HP)

Prithi Chand v. Naura Devi

2012-05-07

RAJIV SHARMA

body2012
JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree dated 30.06.2009, passed by the learned District Judge, Mandi, Himachal Pradesh in Civil Appeal No. 16 of 2007. 2. Material facts necessary for adjudication of this Regular Second Appeal, are that the respondents-plaintiffs (hereinafter referred to as "the plaintiffs" for convenience sake) had filed a suit against the appellants-defendants and proforma respondents (hereinafter referred to as "the defendants" for the sake of brevity) for declaration that they are owners in possession of suit land comprised in Khewat Khatauni No. 70/81, Khasra Nos. 493 and 496, measuring 3-6-4 bighas, Mauja Fangyar, Tehsil Chachiot, District Mandi and will dated 01.03.1988 Ex. DW-3/A is illegal, null and void. According to the plaintiffs, Shri Durga Dass, predecessor-in-interest of the plaintiffs, was owner in possession of the suit land. He died during the pendency of the suit on 16.03.1988. The plaintiffs were recorded owners in possession of the suit land after the death of Durga Dass. Plaintiffs applied for the copy of mutation and came to know that the suit land has been transferred in favour of Sh. Ramu, predecessor-in-interest of the defendant. According to the plaintiffs, the mutation has been attested on the basis of Will dated 01.03.1988. It is in these circumstances that the suit was filed by the plaintiffs against Sh. Ramu, predecessor-in-interest of the defendants that the Will dated 01.03.1988 allegedly executed by Durga Dass in favour of the defendants was null and void. 3. It will be apt at this stage to take note that notice was issued to the defendant, Ramu, however, before he could be served, he died and thereafter, his legal heirs were brought on record. 4. The suit was contested by the defendants. Defendants No. 1 to 4 have filed joint written statement. Defendants No. 5 and 6 have also filed separate written statement. 5. According to defendants No. 1 to 4, Shri Ramu, their predecessor-in-interest was recorded as owner in possession of the suit land. According to them, Durga Dass was granted nautor land. The same was reclaimed and developed into orchard by Ramu, the father of defendants No. 1 to 4. Ramu was also helping Durga Dass. It is in these circumstances that Shri Durga Dass has executed a Will in favour of Ramu on 1.03.1988. According to them, Durga Dass was granted nautor land. The same was reclaimed and developed into orchard by Ramu, the father of defendants No. 1 to 4. Ramu was also helping Durga Dass. It is in these circumstances that Shri Durga Dass has executed a Will in favour of Ramu on 1.03.1988. Consequently, the mutation was also attested on 17.03.1989 on the basis of Will dated 01.03.1988. It is admitted by defendants No. 1 to 4 that Durga Dass was the owner in possession of the suit land. The defendants have also pleaded that Ramu had executed a Will in favour of Smt. Maheshwari Devi and one Shri Prithi Chand qua the suit land on 18.06.1998, i.e., Ex. DW-6/A. According to defendants No. 1 to 4, Durga Dass has executed the Will in favour of Ramu out of his free will and in sound disposing state of mind. 6. Defendants No. 5 and 6 have stated that the suit land was obtained by Durga Dass and thereafter, the same was reclaimed by Ramu. Shri Ramu was helping Shri Durga Dass. Durga Dass has executed a will in favour of Ramu on 01.03.1988. Thereafter, Ramu has executed a valid Will in favour of Smt. Maheshwari Devi and Shri Prithi Chand on 16.06.1998, Ex. PW- 6/A. Defendant Nos. 1, 2 and 4, L.Rs. of defendant Ramu were proceeded ex parte on 18.01.2002. 7. The replication was filed by the plaintiffs. The issues were framed by the learned trial Court on 20.03.2004. Learned Civil Judge (Junior Division) Chachiot at Gohar has decreed the suit and declared the Will dated 01.03.1988 to be wrong, null and void, having no effect upon the rights of the plaintiffs and the mutation No. 189 attested on the basis of Will dated 01.03.1988 and the subsequent revenue entries qua the suit land in the name of Ramu, the predecessor-in-interest of the defendants and the defendants were wrong, illegal, null and void. The plaintiffs were declared absolute owners of the suit land. 8. Defendants Purshotam Ram, Smt. Lohari, Maheshwari Devi and Prithi Chand preferred an appeal bearing Civil Appeal No. 16 of 2007 against the judgment and decree dated 19.01.2007. Defendants Kushal Singh and Ramesh Chand were added as proforma respondents. 9. The plaintiffs were declared absolute owners of the suit land. 8. Defendants Purshotam Ram, Smt. Lohari, Maheshwari Devi and Prithi Chand preferred an appeal bearing Civil Appeal No. 16 of 2007 against the judgment and decree dated 19.01.2007. Defendants Kushal Singh and Ramesh Chand were added as proforma respondents. 9. Ramesh Chand, defendant has filed a separate appeal bearing Civil Appeal No. 100 of 2009 against the judgment and decree dated 19.01.2007 before the learned District Judge, Mandi. Learned District Judge, Mandi has dismissed both the appeals, i.e., Civil Appeal No. 16 of 2007 and Civil Appeal No. 100 of 2009 on 30.06.2009. It is in these circumstances that this Regular Second Appeal has been filed by the defendants, namely, Shri Prithi Chand, Shri Purshotam Ram, Shri Ramesh Chand and Smt. Maheshwari Devi. Shri Kushal Singh and Smt. Lohari have been added as proforma respondents. 10. This Regular Second Appeal was admitted on the following substantial questions of law on 7th October, 2009: 1. Whether both the Courts below have misunderstood and misapplied the correct applicability of Sections 68 and 71 of the Evidence Act and Section 63 of Indian Succession Act? 2. Whether the findings of both the Courts below are result of misreading the pleadings oral and documentary evidence especially the recital Ex.DW-3/A and testimony of DW-2, the scribe of the Will? 11. Mr. Bhupender Gupta, learned Senior Advocate has strenuously argued that both the Courts below have not correctly appreciated the oral as well as documentary evidence. According to him, the Will dated 01.03.1988 was duly executed by Sh. Durga Dass in favour of Sh. Ramu. 12. Mr. G.R. Palsra, learned counsel for respondents No. 1 to 4 has supported the judgments and decrees passed by both the Courts below. 13. I have heard the learned counsel for the parties and gone through the pleadings and records carefully. 14. Since both the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid the repetition of discussion of evidence. 15. The Will is dated 01.03.1988. It was registered on 27th September, 1988. The Will has been executed by Shri Durga Dass in favour of Sh. Ramu, predecessor-in-interest of the defendants. Durga Dass died on 18th March, 1988. 16. One of the defendants, namely, Sh. Purshotam has testified that the suit land was granted to Durga Dass by way of nautor. The Will is dated 01.03.1988. It was registered on 27th September, 1988. The Will has been executed by Shri Durga Dass in favour of Sh. Ramu, predecessor-in-interest of the defendants. Durga Dass died on 18th March, 1988. 16. One of the defendants, namely, Sh. Purshotam has testified that the suit land was granted to Durga Dass by way of nautor. His father Ramu helped Durga Dass in getting nautor land. Shri Ramu broke the suit land and made it cultivable and also planted apple plants. In lieu of this, Durga Dass executed a Will in favour of his father. His father was residing at Khanyabaru. He was being looked after by Smt. Maheshwari Devi, defendant No. 5. Sh. Ramu also executed a Will in favour Maheshwari Devi and Prithi Chand vide Ex. DW-6/A. In his cross-examination, he has admitted that Ramu was 80 years old at the time of his death and Durga Dass was 50-60 years old. He was 14-16 years at the time of execution of Will. He did not know whether the Will was executed in the forenoon or in the afternoon. The office of Sub Registrar was situate about 1-2 k.m. away from Khanyabru. According to him, the age of the apple plants was 18 to 20 years. 17. DW-2 Parkash Chand has testified that Durga Dass has got the Will executed in favour of Ramu on 01.03.1988, certified copy whereof is Ex. DW-3/A. According to him, the defendants have moved an application for leading secondary evidence to prove the Will. The same was allowed by the learned trial Court on 5th October, 2004. He further deposed that he has scribed the original Will at the instance of Durga Dass and Durga Dass has mentioned in the Will that Ramu assisted him in breaking the land. The suit land was granted to Durga Dass by way of nautor. He has read over the contents of Will to Durga Dass and Durga Dass appended his signatures on the Will after admitting the contents of the same to be correct in the presence of Nokhu and Savitri. Shri Nokhu and Savitri also signed the Will. He has signed the Will as an attesting witness. According to him, Shri Durga Dass was in sound state of mind at the time of execution of the Will and Smt. Savitri wife of Durga Dass was residing with the plaintiffs. Shri Nokhu and Savitri also signed the Will. He has signed the Will as an attesting witness. According to him, Shri Durga Dass was in sound state of mind at the time of execution of the Will and Smt. Savitri wife of Durga Dass was residing with the plaintiffs. The Will was registered after the death of Durga Dass. In his cross-examination, he has stated that the Will was registered in the office of Sub Registrar, Mandi. Shri Ramu was elder to Durga Dass. Shri Durga Dass was living with the plaintiffs. 18. DW-3 Shri Kesar Singh has testified that Ramu was in possession of the suit land. He has raised an apple orchard over the suit land. Defendants No. 5 and 6, after the death of Ramu, were owners in possession of the suit land, on which potato crop was sown. He was ignorant about the death of Durga Dass. He has categorically admitted that the plaintiffs were cultivating the suit land. 19. Shri Ram Singh, who was posted as Registration Clerk in the office of Sub Registrar, Mandi in the year 2006, was examined as DW-4. He testified that he brought on record the certified copy of the Will Ex. DW-3/A. The will was registered on 27.09.1988. 20. DW-5 Smt. Maheshwari Devi has testified that suit land was granted to Durga Dass by way of nautor. Shri Durga Dass broke the land with the assistance of Ramu. Shri Durga Dass executed Will of the suit land in favour of Ramu and mutation was also attested in favour of Shri Ramu. According to her, Shri Ramu has also executed a Will in her favour vide Ex. DW-6/A on 16.06.1998. 21. DW-6 Prem Singh has testified that Ramu has executed a Will in favour of DW-5 Smt. Maheshwari Devi on 16.06.1998 vide Ex. DW-6/A. Will Ex. DW-6/A was scribed by the petition writer at the instance of Ramu. According to him, Shri Ramu was in sound state of mind. He was identified by Khem Singh and the contents of the Will were read over to Ramu and he acknowledged the execution of the Will and appended his thumb impression on the Will in his presence and that of Puran Chand. The Will was registered and Shri Khem Singh was identified before the Tahsildar. He has admitted that he is real brother of defendant No. 6. 22. The Will was registered and Shri Khem Singh was identified before the Tahsildar. He has admitted that he is real brother of defendant No. 6. 22. PW-1 Smt. Naura Devi has testified that the suit land was granted to her husband by way of nautor. He was owner in possession of the suit land. Shri Ramu was resident of a place about 15-16 k.m. away from the suit land and did not help her husband in cultivating the suit land. According to her, Durga Dass has suffered paralytic stroke one year before his death. Shri Durga Dass did not execute any Will in favour of Ramu. She further deposed that defendants No. 5 and 6 have not cultivated the suit land. Her husband was taking treatment from the doctor at Jahu. 23. Shri Bhim Singh, PW-2 has testified that the suit land was granted to Shri Durga Dass as nautor. Durga Dass was owner in possession of the suit land and potato crop was sown in the suit land. 24. What emerges from the facts enumerated herein above, is that the Will Ex. DW-3/A is dated 01.03.1988. It was scribed by DW-2 Shri Parkash Chand. It was attested by Shri Nokhu and Smt. Savitri Devi. Shri Nokhu has died and the defendants have not examined Smt. Savitri Devi to prove the attestation of Will. Shri Parkash Chand (DW-2) has signed the Will as a Scribe. In view of this, he cannot be considered as an attesting witness. The Will was executed on 01.03.1988. Shri Durga Dass has died on 18.03.1988. The Will was presented for registration after the demise of Durga Dass on 27.09.1988. The defendants have not produced the original Will. The Will has been got registered in the office of Sub Registrar at Mandi, though the office of Sub Registrar Chachiot, District Mandi is about 2 k.m. from the suit land. Shri Durga Dass was aged about 57 years at the time when the Will was executed. 25. The suit land was allotted to Shri Durga Dass in the year 1976 as per mutation No. 175, dated 11.08.1986, Ex. DA. He was not competent to sell or mortgage the suit land for the period of 15 years. Sh. Durga Dass was aged about 57 years at the time of his death. The Will Ex. DW-3/A, dated 01.03.1988 was executed on 08.03.1988. DA. He was not competent to sell or mortgage the suit land for the period of 15 years. Sh. Durga Dass was aged about 57 years at the time of his death. The Will Ex. DW-3/A, dated 01.03.1988 was executed on 08.03.1988. He has suffered paralytic stroke and in these circumstances, it cannot be said that he was of sound disposing state of mind. There is no reason assigned in the Will why the natural heirs have been deprived from the suit property. Shri Nokh Ram, one of the attesting witnesses of the Will, has retired as Naib Tahsildar. Statement of DW-2 Shri Parkash Chand, being interested witness, has rightly been discarded by both the Courts below. Shri Nokh Ram, though has died, but Smt. Savitri Devi has not been examined, though alive. 26. Mr. Bhupender Gupta, learned Senior Advocate, for the appellant has also argued that Shri Ramesh Chand could not be proceeded ex-parte, however, it is born out from the records that summons were delivered through his brother, namely Purshotam Ram, who is also one of the defendants in the suit and they were residing jointly. 27. Since the defendants have failed to prove the execution of Will dated 01.03.1088, Ex. DW-3/A, the subsequent Will executed by Ramu in favour of Smt. Maheshwari Devi and Prithi Chand, Ex. DW-6/A is of no consequence. Shri Ramu has no title over the suit land, thus, he could not transfer the same to Maheshwari Devi and Ptithi Chand vide Ex. DW-6/A. The defendants have failed to dispel the suspicious circumstances surrounding the execution of Will, dated 01.03.1988, Ex. DW-3/A by leading cogent and convincing evidence. Since the defendants have failed to prove the execution of the Will, Ex. DW-3/A, dated 01.03.1988, the subsequent mutation attested in favour of Ramu on the basis of Will, is also null and void. Consequently, both the Courts below have rightly come to the conclusion that the revenue entries made on the basis of Will Ex. DW-3/A in favour of Ramu and predecessor-in-interest of the defendants and other defendants were wrong, illegal, null and void. Both the Courts below have correctly applied the provisions of Evidence Act and Indian Succession Act. The Courts below have correctly read Ex. DW-3/A and testimony of DW-2, Shri Parkash Chand. 28. DW-3/A in favour of Ramu and predecessor-in-interest of the defendants and other defendants were wrong, illegal, null and void. Both the Courts below have correctly applied the provisions of Evidence Act and Indian Succession Act. The Courts below have correctly read Ex. DW-3/A and testimony of DW-2, Shri Parkash Chand. 28. Accordingly, in view of the observations and discussions made herein above, there is no merit in this Regular Second Appeal and the same is dismissed, so also the pending applications, if any. No costs.