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2012 DIGILAW 393 (HP)

Nika Ram v. Moti ram

2012-07-18

V.K.AHUJA

body2012
JUDGMENT : V.K. Ahuja, J. This is a regular second appeal filed by the appellants/plaintiffs u/s 100 C.P.C against the judgment and decree of the Court of learned District Judge, Kullu dated 20.6.2001 affirming the judgment and decree passed by the learned Senior Sub Judge Lahaul & Spiti (Sub Judge Ist Class Kullu) dated 29.5.2000 vide which the suit of the plaintiff was dismissed. Briefly stated the facts of the case are that the appellants (hereinafter referred to as the plaintiffs ) filed a suit for declaration and permanent injunction. It was alleged by the plaintiffs that the suit land as described in the plaint was owned and possessed by Holu, the predecessor in interest of the plaintiffs and defendants. It was alleged that Holu died on 15.5.1998. Before his death, he had executed a registered will dated 24.8.1992 in favour of the plaintiffs and defendants. It was alleged that the said will was executed under the influence of defendant No. 1. It was further alleged by the plaintiffs that Holu cancelled the aforesaid will and executed his last and valid will dated 28.1.1995 in favour of the parties to the suit wherein all the persons have been given their share in the suit land. It was alleged that defendants No. 1 to 4 in connivance with the Revenue Officer got the mutation attested on the basis of the will dated 24.8.92 and will dated 28.1.95 in favour of the plaintiff and others was also presented before the Revenue Officer but the mutation was attested on the basis of the will dated 24.8.92. The defendants were requested to admit the claim of the plaintiffs which they refused, hence the suit filed by the plaintiffs. 2. Defendant No. 1 contested the case only. He admitted that will dated 24.8.92 was executed by Holu but pleaded that since defendant No. 1 was rendering the services to the deceased during his life time, therefore, some more land was bequeathed in favour of the defendant No. 1 measuring 2-19-0 bighas in addition to his 1/6th share. The mutation was attested on 4.7.98 after the death of the deceased and it was attested in presence of the plaintiff who did not raise any objection. It was denied that the deceased had revoked vide will dated 24.8.92 and executed a fresh will in favour of the parties on 28.1.95. 3. The mutation was attested on 4.7.98 after the death of the deceased and it was attested in presence of the plaintiff who did not raise any objection. It was denied that the deceased had revoked vide will dated 24.8.92 and executed a fresh will in favour of the parties on 28.1.95. 3. Defendants No. 5 to 8 vide their separate written statement had supported the claim of the plaintiffs. They also pleaded that the mutation in the name of defendant No. 1 on the basis of earlier will was wrong. 4. On the pleadings of the parties, following issues were settled by the learned trial Court: 1. Whether the deceased Holu executed a valid will dated 28.1.95 in favour of parties, as alleged? OPP 2. Whether the deceased Holu executed a valid will dated 24.8.92 in favour of the parties, as alleged ? OPD 1&2 3. Whether the plaintiffs are in possession of suit property? OPP 4. Whether the plaintiffs are estopped from filing the present suit? OPD 5. Relief. 5. Parties led their evidence and the learned trial Court vide its impugned judgment held that the will dated 24.8.92 in favour of the parties was a valid will relied by the plaintiff in favour of the plaintiffs and defendants was held to be surrounded by suspicious circumstances and hence the suit of the plaintiff was dismissed. 6. On appeal, those findings were affirmed by the learned District Judge vide its impugned judgment and decree which is under challenged. 7. I have heard the learned counsels for both the parties and have gone through the record of the case. 8. A perusal of the record shows that the appeal was admitted by this Court on six substantial questions of law. 9. The submissions made by learned counsel for the appellants were that in so far as the will dated 24.8.92 is concerned, the deceased had given share to all his six sons including the legal heirs of two of the deceased sons of Holu. There is no specific challenge to the will dated 24.8.92 in favour of the parties since both the parties had got their share in the property owned by their father namely Holu. There is no specific challenge to the will dated 24.8.92 in favour of the parties since both the parties had got their share in the property owned by their father namely Holu. The main question for consideration is as to whether a fresh will was executed by deceased Holu dated 28.1.95 in favour of the plaintiffs and others vide which every son including the deceased sons got share but vide will dated 24.8.92, defendant No. 1 had got some additional land as mentioned above. The will dated 28.1.95 set up by the plaintiff vide which defendant No. 1 and others were not excluded from their share in the property of Holu deceased was set up by the plaintiffs which was in favour of the parties. The main question for consideration is as to whether the will dated 28.1.95 which was the subsequent will was validly executed and if so the will dated 24.8.92 looses his significance since the property had to be bequeathed on the basis of the subsequent will executed by the deceased. 10. Coming to the evidence, the will relied upon by the plaintiffs has been proved in evidence as Ex.PW3/A dated 28.1.95. The scribe of the will was PW-3 Chhering Ram, who is a Deed Writer and he has stated that he scribed the will at the instance of Holu and Jindu Ram and Keshav Ram were the witnesses who were present at that time. He also stated that the will was read over to Holu in presence of the witnesses and then it was thumb marked by Holu and was also signed by the witnesses in presence of Holu. He also stated that deceased Holu was in sound disposing mind at the time of execution of the will. He identified his signatures on Ex.PW3/A and stated that it also bears his seal. There is no ground to disbelieve this witness. No ground was taken by both the Courts below in disbelieving this witness except that he admitted that the entry in regard to this will was also made in his register but the same was not produced in Court. There is no ground to disbelieve this witness. No ground was taken by both the Courts below in disbelieving this witness except that he admitted that the entry in regard to this will was also made in his register but the same was not produced in Court. In my view, in case the defendants wanted that the entries in register should be proved by this witness to substantiate his statement, his statement could have been deferred and the witness could have been asked to produce the register containing entry in regard to the execution of the will. Once the witness was never asked by the defendant's counsel to produce the register and there is nothing to suggest that before he appeared in the witness box, he had been asked by the defendants by way of any application to bring the register also, no adverse inference could have been drawn against him for not producing the register containing the entry in regard to execution of the will. Once no prayer was made and no opportunity was given to the witness who is the Deed Writer to produce the register containing the alleged entry, no adverse inference could have been drawn by the learned trial Court as well as by the learned appellate Court which findings are in correct that it is a suspicious circumstance or that the statement of this witness can not be relied upon. There is no other challenge to the statement of this Deed Writer at any time except once suggestion made that at the time of mutation he had made a statement that he does not know as to who was produced by the plaintiff at the time of execution of will instead of Holu. The said statement was never proved from the copy of the mutation entry or his statement recorded at that time or whether he was present at the time of mutation or not. It was only a suggestion and it was denied by him but there was no admission by him that the plaintiff had produced some other person in place of Holu at the time of execution of the will. It was only a suggestion and it was denied by him but there was no admission by him that the plaintiff had produced some other person in place of Holu at the time of execution of the will. This was also taken as a ground by the Courts below to disbelieve the statement of this witness, but I am of the opinion that there was no admission by him that the plaintiff had produced some other witness or he admitted this fact at the time of mutation which entry was never produced by the defendants. Therefore, no case was made out to reject the will which is a registered will duly written by Deed Writer. Coming to the marginal witnesses out of the two marginal witnesses Jindu Ram and Keshav Ram, only Jindu Ram was examined by the plaintiffs. He clearly stated that the will was written in his presence and in presence of the other witnesses by PW3 Chering Ram, Deed Writer, which was read over to him and Holu thumb marked the will in his presence and thereafter he and Keshav Ram signed in presence of Holu. That satisfies the requirement of Section 63 of the Succession Act that the will must be scribed and should be signed in the presence of the executant who must sign also in the presence of the marginal witnesses. 11. The learned Courts below had taken some portion of his statement to hold that he was not reliable witness and even the learned trial Court has gone to the extent of holding that while discussing his statement in para 16 of the judgment has gone to the extent that he appears to be of doubtful character. There were no such material available for the Court to make such a comment upon the witness. The infirmity observed in his statement by both the Courts was where he stated that he remains mostly in Courts compound. He was resident of a place which is at the distance of 14 k.m from the house of the Holu. He also admitted that he was not a Pradhan or Lamberdar and had no relative in that said village. The infirmity observed in his statement by both the Courts was where he stated that he remains mostly in Courts compound. He was resident of a place which is at the distance of 14 k.m from the house of the Holu. He also admitted that he was not a Pradhan or Lamberdar and had no relative in that said village. However, he was never asked any question as to how he was knowing Holu or whether he was meeting Holu for the first time in Court on that day and therefore, doubting his character or integrity can not be said to be correct as observed by the learned trial Court. He denied the suggestion that he had been appearing in civil cases as a witness. He only admitted that in one case u/s 446 Cr.P.C he had given the surety for a gorkha and he was fined by this Court. The mere fact that this witness had stood surety for the accused and had subsequently to pay the surety amount as a fine does not lead to the impression that his statement can not be relied upon or that he was a person of doubtful character. He only stated that Holu's all sons were alive on that date wherein it has come in the will that two of the sons were already dead. He may not be remembering about the whole part of the will and therefore, his statement in that regard can not be taken as a ground to disbelieve his statement. There is no material for the Courts to disbelieve the statement of this witness who was an attesting witness since he was never asked any question as to how he was knowing the deceased, where the deceased met him or asked to be present on the next date being a witness to the will. Therefore, in the absence of any such material on record his statement could not have been disbelieved by both the Courts below and therefore, the findings recorded by both the Courts below in this regard disbelieving the statement of this attesting witness are not sustainable in the eyes of law. 12. Therefore, in the absence of any such material on record his statement could not have been disbelieved by both the Courts below and therefore, the findings recorded by both the Courts below in this regard disbelieving the statement of this attesting witness are not sustainable in the eyes of law. 12. It is clear from the above discussion that the will set up by the plaintiffs was subsequent will in which all the sons of the deceased including the predeceased sons of Holu had got their share, while in the earlier will, defendant No. 1 had been given some extra land measuring 2-19-0 Bighas as detailed above. Therefore, the will set up by the plaintiffs can not be said to be shrouded by any suspicious circumstance and there were no specific allegations made by the defendants that the plaintiffs had produced some other person in place of the deceased or got the will executed. The will was duly attested by the Sub Registrar and the presumption is that it was validly registered by the Sub Registrar. 13. Learned counsel for the appellants in support of his submissions, had also relied upon two decisions of this Court. The decision in Gun Parkash and Another Vs. Bhola Nath, AIR 1997 HP 27 had relied upon, in which it was observed that the will cannot be discarded on the ground that testatrix was old lady or that natural heirs were deprived of property which is not the case here but the further observations made were that it cannot be discarded since the marginal witnesses were chance witnesses or that no witness from locality was examined. The Court had referred to various decisions in coming to these findings. Another decision relied upon by the learned counsel for the appellants was in Shakuntala Devi Vs. Savitri Devi and Others, AIR 1997 HP 43 , wherein it was observed that the attesting witnesses were not knowing the contents of the will, was held to be not a suspicious circumstance. It was held that the contradiction in statements of witnesses in regard to date of death of testator and the witnesses not related to testator can not be termed as a suspicious circumstance once the witnesses were deposing after six years of execution of will. It was held that the contradiction in statements of witnesses in regard to date of death of testator and the witnesses not related to testator can not be termed as a suspicious circumstance once the witnesses were deposing after six years of execution of will. Both the decisions are attracted to the present facts and in the present facts, the mere fact that one of the attesting witness Jhindu Ram was alleged to be from a different village can not be termed as a suspicious circumstance in the absence of any fact to hold that he was not knowing the deceased or that he had any reason to depose falsely in favour of the plaintiffs and therefore, the statement of Jhindu Ram can not be believed which has been done by the learned trial Court. The finings recorded by the learned trial Court were upheld by the learned Appellate Court which is incorrect since the statements were wrongly disbelieved by both the Courts below and, as such, I am of the opinion that the will set-up by the plaintiffs was a valid will and there was no suspicious circumstance surrounding the will and therefore, the findings of both the Courts below dismissing the suit of the plaintiffs are liable to be set-aside. The appeal filed by the appellants is accepted and the findings of both the Courts below are set-aside and the suit for declaration and permanent injunction stands decreed in favour of the plaintiffs and against the defendants as prayed and the plaintiffs shall be liberty to apply for a fresh mutation on the basis of the will in their favour and in favour of the defendants and all the persons are entitled to succeed to the property of Holu on the basis of will Ex.PW3/A dated 28.1.95. The appeal filed by the appellants is accepted. However, parties are left to bear their own costs.