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2012 DIGILAW 472 (HP)

PARSO v. SURESH KUMAR

2012-08-30

V.K.AHUJA

body2012
JUDGMENT : V.K. AHUJA, J. 1. This is a Regular Second Appeal filed by the appellant/defendant under Section 100 C.P.C. against the judgment and decree dated 23.6.2008 passed by the learned District Judge, Chamba, affirming the judgment and decree of the Court of learned Civil Judge, (Junior Division), Chamba, dated 15.5.2006, vide which the suit of the plaintiff/respondent for declaration and possession had been decreed. 2. Briefly stated, the facts of the case are that the respondent herein after referred to as the plaintiff, filed a suit for declaration and possession in the alternative as against the appellant hereinafter referred to as the defendant. It was alleged by the plaintiff that the land in suit was owned and possessed by Bainsu, his father, who died on 4.9.2001 at village Dehoi Pargna Jund. It was alleged that Bainsu had left no other legal heir except the plaintiff who being his son was entitled to inherit the moveable and immoveable property of his father late Bainsu. It was alleged that the said Bainsu was not keeping good health and the plaintiff being his son was rendering him all services. Defendant No. 1 is brother of late Bainsu and was living separately from Bainsu and Bainsu was not of sound disposing mind and was not keeping hood health due to his oldage. 3. It was alleged that after the death of Bainsu on 4.9.2001, the plaintiff approached the revenue authorities to sanction mutation in his favour, but defendant No. 1 produced one forged and fictitious Will purported to have been executed by Bainsu in favour of defendant No. 1 and the mutation was attested in favour of defendant No. 1 inspite of objections by the plaintiff. The plaintiff alleged that the deceased was not competent to execute any Will, which was result of fraud and misrepresentation and the suit land was ancestral, which was inherited by the deceased and his ancestors and as such, the mutation was wrongly attested. Hence, the suit for declaration and possession filed by the plaintiff. 4. The defendant pleaded that the suit property was not ancestral property and the deceased had executed a valid Will on 28.8.2001 in favour of the defendant, which was duly registered and the mutation was, therefore, rightly sanctioned in favour of the defendant. Hence, the suit for declaration and possession filed by the plaintiff. 4. The defendant pleaded that the suit property was not ancestral property and the deceased had executed a valid Will on 28.8.2001 in favour of the defendant, which was duly registered and the mutation was, therefore, rightly sanctioned in favour of the defendant. It was pleaded that the deceased was being looked after by the defendant and he validly executed the Will in favour of the defendant and hence, the suit is liable to be dismissed. 5. On the pleadings of the parties, the following issues were settled by the learned trial Court:- (i) Whether the will dated 28-8-2001 attested on 29-8-01 in favour of defendant no. 1 i.e. Parso is null and void as obtained by fraud? OPP (ii) Whether the Testator of will i.e. Sh. Bainsu was not competent to make the alleged will as alleged? OPP (iii) Whether the plaintiff is entitled for the relief of Declaration to the effect that mutation no. 191 dated 30-9-2002 was wrong, illegal and inoperative as alleged? OPP (iv) Whether the plaintiff is entitled for the decree of possession in case the defendant obtained forcible possession to suit land? OPP (v) Whether the plaintiff has no cause of action to file the suit? OPD (vi) Whether the suit is not maintainable in the present form? OPD (vii) Whether the plaintiff has no locus standi to file the present suit? OPD (viii) Whether the court has no jurisdiction to try the present suit as alleged? OPD (ix) Relief? 6. Parties led their evidence and the learned trial Court vide its impugned judgment held that the suit land was ancestral property and as such, the deceased was not competent to execute any Will in favour of the defendant. In regard to the Will, it was held that it was not validly executed in favour of the defendant and since it was surrounded by the suspicious circumstances, hence the Will was held to be not valid. Accordingly, the suit of the plaintiff was decreed. On appeal by the appellant, those findings were affirmed by the learned Appellate Court. 7. The appeal was admitted by this Court on 13.10.2008 on the following substantial questions of law:- "1. Whether the Ld. Accordingly, the suit of the plaintiff was decreed. On appeal by the appellant, those findings were affirmed by the learned Appellate Court. 7. The appeal was admitted by this Court on 13.10.2008 on the following substantial questions of law:- "1. Whether the Ld. Courts below are justified in ignoring the Will on the ground of suspicion and fraud though no details of the alleged fraud in executing the Will have been mentioned in the plaint? 2. Whether the Ld. District Judge, Chamba was not required to give its findings on main points involved in Issue No. 2 "whether the testator of Will i.e. Bainsu was not competent to make the Will"? 8. I have heard the learned counsel for the parties and have gone through the record of the case. 9. The submissions made by the learned counsel for the appellant were that the Will was validly executed in presence of two attesting witnesses and it was scribed by a Deed Writer and was thereafter produced before the Sub Registrar, who registered the same also on the next date of its execution. It was also submitted that there is no evidence to show that the deceased was not of sound disposing mind, was ill for the last several months and the property in question was self acquired property of the deceased and as such, the Will could be validly executed by the deceased. 10. On the other hand, learned counsel for the respondent had supported the impugned judgment supplementing it by the submissions that both the Courts below had relied upon the evidence in detail and had concluded that the Will was surrounded by the suspicious circumstances and as such, the Will was not validly proved to have been executed by the deceased in favour of the defendant. 11. A perusal of the judgment passed by both the Courts below clearly shows that both the Courts have discussed the evidence that the deceased was resident of village Dihoi, while the attesting witness DW-3 Desh Raj was resident of village Salwan. It had been discussed by the learned District Judge that DW-3 Desh Raj was not aware of the family members of Bainsu or their holdings and DW-2 has admitted that he was not knowing Bainsu personally. He had simply stated that Bainsu Ram was identified by Desh Raj and Shakto. It had been discussed by the learned District Judge that DW-3 Desh Raj was not aware of the family members of Bainsu or their holdings and DW-2 has admitted that he was not knowing Bainsu personally. He had simply stated that Bainsu Ram was identified by Desh Raj and Shakto. Once the witnesses were not from the village and they were chance witnesses who were present at the time of the execution of the Will and had not been called in advance by the deceased, the fact that they become attesting witnesses to the Will makes their testimony doubtful. However, it is not necessary that the attesting witnesses should be from the village of the deceased, but some proximity of the deceased or relationship should be proved with the attesting witnesses, so as to prove that they were persons of the confidence of the deceased and hence they were associated at the time of execution of the Will. One of the witnesses was not knowing the deceased personally and the second has also not been able to prove about the family members of Bainsu or his landed property, or some facts which could show that as to how he was knowing the deceased. The Deed Writer has clearly admitted that he was not knowing the deceased personally and he was identified by the attesting witness. 12. After referring to the evidence, both the Courts below have held the following as suspicious circumstances:- Defendant No. 1 has taken the plea that he was not present at the time of execution of the Will, but after referring to the evidence, both the Courts below have held that defendant No. 1 had made payment of the charges to the Deed Writer, which proves his presence and rather active participation at the time of the execution of the Will. DW-3 Desh Raj was a chance witness, not from the village of the deceased, as the other attesting witness. About the second witness, there is no evidence of his presence at the spot. None was associated from the village of the testator. 13. DW-3 Desh Raj was a chance witness, not from the village of the deceased, as the other attesting witness. About the second witness, there is no evidence of his presence at the spot. None was associated from the village of the testator. 13. Apart from the above, some other circumstances, which arise from the evidence are that the Will was executed on 28.8.2001 and it was presented for registration on the next day at 4.00 P.M. There is nothing on record to suggest as to why it was not presented on the same day and why it was so presented in the evening and as to whether the witnesses stayed including the deceased. The deceased was identified before the Sub Registrar by the Numbardar, who was not examined to prove that he was knowing the deceased personally and had identified him before the Sub Registrar. There were no specific allegations made in the written statement that the defendant was serving the deceased or that the wife of the deceased had taken divorce and was staying with her son, the present plaintiff, since he was three months old only and had never come back and served the deceased, which evidence was sought to be led at the time of the evidence, but it was not so pleaded by the defendant. It is also on record that in the copy of Pariwar Register, the plaintiff was shown as a member of the family of the deceased, which evidence shows that he was living with his father and there is no specific evidence that he was not living with his father or was not serving his father or the defendant was serving his brother. The plaintiff had challenged the due execution of the Will and no particulars of fraud, were required to be proved and it was for the defendant to prove that the Will was executed by the deceased, who was properly identified at the time of the execution of the Will and its registration thereafter. It is true that there is no specific evidence in regard to the illness of the deceased led by the plaintiff supported by documentary evidence, but that in itself is not sufficient to prove that the Will was validly executed. No reasons have been given in the Will by the deceased for disinheriting his only son. It is true that there is no specific evidence in regard to the illness of the deceased led by the plaintiff supported by documentary evidence, but that in itself is not sufficient to prove that the Will was validly executed. No reasons have been given in the Will by the deceased for disinheriting his only son. It may not be necessary to give the reasons for disinheriting his only son, but non-mentioning of the reason can also be taken as another suspicious circumstance as to why the only son was disinherited by the deceased. 14. To substantiate his submissions that no reliance can be placed upon the Will, which is surrounded by suspicious circumstances, the learned counsel for the respondent had relied upon the following decisions:- The decision in Gurdial Kaur and others v. Kartar Kaur and others, 1998 (2) Punjab Law Reporter 524, shows that registration of the Will by itself was not sufficient to remove the suspicion. It is the duty of the propounder of the Will to dispel such suspicious circumstances surrounding the Will. The decision in Anath Nath Das and others v. Sm. Bijali Bala Mondal, AIR 1982 Calcutta 236, shows that notwithstanding registration of Will burden was on propounder to prove testamentary capacity since registration did not dispel doubts about genuineness of Will. Reliance was also placed upon the decision in Gorantla Thataiah v. Thotakura Venkata Subbaiah and others, AIR 1968 Supreme Court 1332. The observations made therein are relevant and are being reproduced below:- "In a case in which a will is prepared under circumstances which raise the suspicion of the court that it does not express the mind of the testator, it is for those who propound the will to remove that suspicion. What are suspicious circumstances must be judged in the facts and circumstances of each particular case. If, however, the propounder takes a prominent part in the execution of the will which confers substantial benefits on him that itself is a suspicious circumstance attending the execution of the will and in appreciating the evidence in such a case, the court should proceed in a vigilant and cautious manner." 15. If, however, the propounder takes a prominent part in the execution of the will which confers substantial benefits on him that itself is a suspicious circumstance attending the execution of the will and in appreciating the evidence in such a case, the court should proceed in a vigilant and cautious manner." 15. It is also on record that the Will was executed on 28.8.2001, registered on 29.8.2001 and the deceased died within seven days i.e. on 4.9.2001, though the defendant has sought to explain that the deceased died after 3-4 months, which statement is incorrect. From the above discussion, it follows that both the Courts below had properly appreciated the evidence and had come to a right conclusion that the Will was not validly executed. 16. Coming to the findings of the learned trial Court that the land was not self acquired property of the deceased and, therefore, he could not execute a valid Will. A perusal of the jamabandi Ext. PB and Ext. P-1 shows that the land was inherited by the deceased's father on the death of his father, since there is an entry in the remarks column, which clearly proves that it was not self acquired property of the deceased, but it was ancestral in nature. However, the learned counsel for the respondent had conceded that the Will of ancestral property could also be executed to the extent of share of the deceased qua the plaintiff, but that question does not arise since the due execution of the Will has not been proved by the defendant and there are findings of fact recorded by both the Courts below. 17. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed.