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2012 DIGILAW 521 (HP)

Indira Wati widow v. Kumari Ranjana

2012-09-10

DHARAM CHAND CHAUDHARY

body2012
JUDGMENT Justice Dharam Chand Chaudhary, Judge Aggrieved by the judgment and decree dated 17.9.2001 passed by the learned District Judge, Civil Appeal No. 15/2001 decreeing thereby Civil Suit No.15/2001 while reversing the judgment and decree passed by the learned Sub Judge 1st Class, Kasauli, District Solan, the appellant, hereinafter referred to as the defendant, has approached this Court by filing the present appeal with the prayer to set aside the same. 2. Respondents, hereinafter referred to as the plaintiffs, aggrieved by the attestation of mutation of the suit land entered in Khata/Khatauni 2/2, Kita 28, measuring 103.8 Bighas, situated in Mouza Chilla Khurd, Habast No.633, Tehsil and District Solan, to the extent of 9 shares, out of 96 shares in the name of the defendant on the basis of a Will, had filed a suit for declaration to the effect that they are owners in possession thereof and the attestation of mutation No.49 in favour of the defendant on 17.8.1995 and the subsequent entries in the revenue record based on it, are wrong illegal and void abnitio as the same neither create any right, title or interest in favour of the defendant nor are binding upon the plaintiffs and also that in case they are found to have been dispossessed from the suit land, a decree for permanent prohibitory injunction restraining thereby the defendant from making any interference in the suit land or creating any charge and alienating the same in any manner whatsoever, be also passed. 3. Defendant is the mother-in-law of plaintiff No.1 and maternal grand mother of plaintiffs No. 2 to 6. Smt. Pushpa, the deceased had inherited the suit land on the death of her father late Shri Ram Lal. She had also inherited the land from her father in village Dharanji-Dhobtan, which, however, was released by her in favour of the defendant vide relinquishment deed Ext. DW4/A. The land in dispute is situated in village Chilla Khurd. Smt. Pushpa Devi, the predecessor-in-interest of the plaintiffs, was admittedly suffering from cancer and she passed away on 5.8.1993. As per the case of the plaintiffs, she being in a critical condition, was not in a sound disposing mind and as such, could have not executed any Will, that too on 24.6.1993 about two months before her death. Smt. Pushpa Devi, the predecessor-in-interest of the plaintiffs, was admittedly suffering from cancer and she passed away on 5.8.1993. As per the case of the plaintiffs, she being in a critical condition, was not in a sound disposing mind and as such, could have not executed any Will, that too on 24.6.1993 about two months before her death. The Will Ext.DW3/A on the basis whereof the suit land has been mutated in the name of the defendant vide order Ext. PW1/B/Ext.DW1/A is stated to be neither legal nor a genuine document. 4. The defendant in the written statement while admitting that deceased Pushpa was suffering from cancer, has come forward with the version that the deceased was living with her and it is she, who alone had been looking after her and even got her admitted in PGI Chandigarh. Also that on her death she was cremated in village Dhobtan and it is the defendant who performed the last rites. 5. Learned trial Court after having gone through the oral and documentary evidence available on record has held as under: “16……….. Keeping in view my discussion above as otherwise the Will has been proved on record by cogent evidence by the defendant. On the other hand, the plaintiff has failed to prove its plea of fraud and etc. From the perusal of the mutation which is Ext. PW1/A it reveals that the plaintiff not appeared when the alleged mutation was attested despite the serviced of the notice. Hence mutation No.49 dt. 17.8.1995 is also according to the Will in favour of the defendant. Hence issue No.1 answered in negation in favour of the defendant and against the plaintiff.” The suit was accordingly dismissed. 6. Learned lower appellate Court, however, on reappraisal of the pleadings as well as the evidence available on record and also the legal position while holding that the judgment and decree passed by the learned trial court is not legally and factually sustainable, has concluded as under: “38. In the light of the observations above, it is concluded that Will like Ext.DW3/A is not a document worth of credence requiring it to be given effect to. The Ld. Trial Judge, somehow or other, could not advert to these aspects of the case. He took erroneous assumption of the pleadings and proof and ultimately drew conclusions not warranted in the fact situation as discussed above. The Ld. Trial Judge, somehow or other, could not advert to these aspects of the case. He took erroneous assumption of the pleadings and proof and ultimately drew conclusions not warranted in the fact situation as discussed above. Thus a material illegality, willy-nilly came to be associated with the appreciation of the evidence on record giving rise to unsubstantiated conclusion. The findings of lower court need to be set aside. 39. The result, therefore, is that the plaintiffs continued to be the sole successors or heirs of the suit land left behind by their wife and mother Smt. Pushpa deceased, respectively. The attestation of the mutation No.49 dated 17.8.1995 as shown in the reverse of the ext.PW1/B having been given effect to on the basis of Will Ext.DW3/A is wholly unwarranted, illegal and nonest. The Will Ext.DW3/A is set aside as above. The plaintiffs continued to be owners in possession of the suit land.” 7. It is against the reversal of trial Court’s judgment and decree, the defendant has approached this Court for setting aside the same, on the grounds, inter alia, that the reversal of the well reasoned judgment of the trial Court, that too on conjectures and surmises, is not legally sustainable. The suit property was inherited by deceased Pushpa Devi from her father and it is the defendant, who spent considerable amount on her treatment. It is for this reason, the deceased had bequeathed the suit land vide the Will in question in her favour. The execution of the Will was not shrouded by any suspicious circumstance and rather is duly proved on record with the help of evidence consisting of oral and documentary. There was no occasion to the learned lower Appellate Court to have arrived at a conclusion that the same is not proved and shrouded by suspicious circumstances. 8. The appeal was admitted for hearing on the following substantial questions of law: “1. Whether the decree for permanent prohibitory injunction could be passed in favour of the plaintiff who was claiming only 1/9th share of the property against the admitted co-sharer in possession of the property? 2. Whether the findings of the court below are perverse and issued on mis-reading and misconstruction of oral and documentary evidence which has vitiated the findings?” 9. Mr. 2. Whether the findings of the court below are perverse and issued on mis-reading and misconstruction of oral and documentary evidence which has vitiated the findings?” 9. Mr. K.D. Sood, learned Senior Advocate, representing the defendant, during the course of arguments, has made twofold submissions, i.e., (a) no decree for permanent prohibitory injunction could have been passed as the plaintiffs, according to him, were not in possession of the suit land and (b) the Will which was held as a genuine document by the trial Court after appreciation of the evidence in its right perspective, has been illegally declared as null and void by the 1st Appellate Court. 10. On the other hand, Shri G.D. Verma, learned Senior Advocate, representing the plaintiffs, while repelling the submissions hereinabove has strenuously contended that it is highly imaginary that a mother would exclude her five daughters, few of them even minors, from inheriting her property and would prefer to bequeath the same in favour of her mother. He has pointed out discrepancies in the evidence produced by the defendant and contended that the lower appellate Court has neither committed any illegality or irregularity while holding the Will, in question, a document shrouded with suspicious circumstances, hence not genuine. While supporting the decree of injunction, it is contended that the defendant being only a co-sharer in the suit land cannot claim herself alone to be in possession of the suit land in exclusion of the plaintiffs. She is thus stated to be rightly restrained from doing so. 11. In the present lis, the only point in issue, which needs adjudication with the help of the pleadings of the parties and the evidence available on record, is as to whether the learned lower appellate Court was not justified in granting the decree for permanent prohibitory injunction against the defendant while quashing the Will Ext.DW3/A while holding that the same is not a valid and genuine document. 12. As a matter of fact, the controversy in respect of possession over the suit land and the findings whereby the learned lower Appellate Court has restrained the defendant from causing interference over the suit land in the possession of the plaintiffs in any manner whatsoever, is hotly contested on behalf of the defendant. In order to set such controversy at rest, it is desirable to take note of the evidence consisting of oral and documentary available on record. In order to set such controversy at rest, it is desirable to take note of the evidence consisting of oral and documentary available on record. Entries in the jamabandi for the year 1993-94 Ext.DW1/A leave no manner of doubt that Smt. Pushpa Devi, the predecessor-in-interest of the plaintiffs was owner in possession of the suit land to the extent of 9 shares. The order of mutation Ext. PW1/B/DW1/A also demonstrates that she being owner of the suit land to the extent of 9 shares was in possession thereof. 13. Adverting to the oral evidence, plaintiff No.1 while in the witness box as PW-1 has stated that his wife Smt. Pushpa Devi being co-sharer in the suit land was in possession thereof and he used to cultivate the same alongwith her. His statement to this effect remained uncontroverted as he has not been cross-examined. The contention that plaintiff No.2 Ranjana while in witness box as PW-2 had admitted the possession of defendant over the land in dispute is not at all supported from the record, as there is nothing to this effect in her statement. No doubt the defendant while in the witness box as DW-1 has stated that the land in dispute is in her possession, however, her own statement is not sufficient to belie the entries in the revenue record, discussed hereinabove and also the testimony of PW-1 qua this aspect of the matter which remained uncontroverted. The defendant, thus, is not justified in claiming that she alone is the owner in possession of the suit land, in exclusion of the plaintiffs, as PW-1 had been cultivating the land to the extent of the share of his deceased wife Smt. Pushpa Devi and as such they were in possession thereof. I thus find no force in the contention to the contrary made on behalf of the defendant. 14. Before adverting to the second limb of arguments addressed on both sides, I would like to make reference to the law laid down by the Hon’ble Apex Court in Lalita Ben Jayantilal Popat Vs. Pragnaben Jamnadas Kataria and others, (2008) 15 SCC 365 , which reads as follows: “11. The law in regard to proof of a valid Will is now well settled. It has to be proved not only by proving the signature of the executor but it should be found to be free from any suspicious circumstances. Pragnaben Jamnadas Kataria and others, (2008) 15 SCC 365 , which reads as follows: “11. The law in regard to proof of a valid Will is now well settled. It has to be proved not only by proving the signature of the executor but it should be found to be free from any suspicious circumstances. Section 63(c) of the Indian Succession Act reads as under : "Section 63.--Execution of unprivileged Wills--Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 1 [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules :- (a) and (b) ... (c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary." Indisputably, the said provision is mandatory in nature. A Will is required to be attested by two or more witnesses. Section 68 of the Evidence Act provides that the propounder must prove execution and attestation of the Will by examining at least one of the attesting witnesses. A Will is required to be attested by two or more witnesses. Section 68 of the Evidence Act provides that the propounder must prove execution and attestation of the Will by examining at least one of the attesting witnesses. What is meant by the word `attestation' is defined in Section 3 of the Transfer of Property Act which reads as under: Section 3.--Interpretation-clause--In this Act, unless there is something repugnant in the subject or context,- "attested", in relation to an instrument, ` means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary." 15. Further, the onus to prove the Will is always on the propounder. It is held so again by the Hon’ble Apex Court in K. Laxmanan Vs. Thekkayil Padmini and others, (2009) 1 SCC 354 . The relevant portion of this judgment is reproduced as under: “19. When there are suspicious circumstances regarding the execution of the Will, the onus is also on the propounder to explain them to the satisfaction of the court and only when such responsibility is discharged, the court would accept the will as genuine. Even where there are no such pleas, but circumstances give rise to doubt, it is on the propounder to satisfy the conscience of the court. Suspicious circumstances arise due to several reasons such as with regard to genuineness of the signature of the testator, the conditions of the testator’s mind, the dispositions made in the will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testator’s mind was not free. In such a case, the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the lat will of the testator. In such a case, the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the lat will of the testator. The aforesaid view is taken by us in consonance with the decision of this Court in Shashi Kumar Banerjee v. Subodh Kumar Banerjee and Pushpavathi v. Chandraraja Kadamba.” 16. The Will allegedly executed by the testatrix deceased Pushpa Devi is Ext.DW3/A. The defendant has examined the scribe thereof, who is DW-3 Rajinder and one attesting witness Sh. Kailash Chand DW-2. Learned lower Appellate Court while appreciating their version as well as that of the defendant herself, has rightly pointed out that there are certain glaring discrepancies, which go to the root of the case. There are two different versions qua the place where this document was scribed, i.e. as per DWs 2 and 3 it was scribed at village Dhobtan whereas as per that of the defendant at village Chilla Khurd. While as per own version of the defendant, it is she who had called the scribe and the attesting witnesses, whereas as per that of DW-2 he and Sh. Lal Singh (both attesting witnesses), were present there by chance. DW-3 Rajinder, the scribe had said that a message was given to him by the testatrix, deceased Pushpa Devi. There is no unanimity even on the time when this document was written, because while DW2 Kailash Chand states that it was around 12/12.30 p.m., as per the version of scribe DW-3 Rajinder this Document was reduced into writing around 6/6.30 p.m. 17. It is not established in unequivocal terms that the contents of Will Ext. DW3/A were read over and explained to the testatrix and it is after understanding the same to be true and correct, she had put her signatures thereon in the presence of attesting witnesses and thereafter they both had also put their signatures on this document in her presence. The evidence available on record is rather contradictory, because as per the version of DW-2 Kailash Chand, it is the scribe Rajinder, DW-3 who had put his signature first on the Will and thereafter he had signed the same and then another attesting witness Lal Singh. On the other hand, the scribe DW-3 Rajinder has stated that it is the testatrix who had first signed the same and after her it was signed by both the witnesses. On the other hand, the scribe DW-3 Rajinder has stated that it is the testatrix who had first signed the same and after her it was signed by both the witnesses. Nothing has come in their statements that they had seen the testatrix putting her signatures on this document. 18. The discrepancies in the statement of the defendant and that of the material witnesses, i.e. the scribe and the attesting witness go to the very root of the controversy and render the Will Ext. DW3/A highly suspicious and the same is not proved to be executed in the manner as claimed in the written statement. 19. The Will was not produced alongwith the written statement and rather was produced on the day when the defendant appeared in the witness box. In order to remove all doubts about the genuineness and authenticity of this document, the same should have been produced at the best available opportunity to the defendant. 20. Admittedly, the deceased was suffering from cancer, a dreadly disease. Not only as per the version of PW-1 and PW-2, but that of the defendant and other witnesses, she examined, the deceased was in a critical condition for the last one year from her death. However, no proof that she was in sound disposing mind when the Will in question was reduced in writing, is produced by the defendant. As a matter of fact, to prove this fact, some Medical Officer should have been examined in the Court. In the absence of any such evidence, an adverse inference has to be drawn against the defendant. If her own version is believed to be true, she being the beneficiary of the Will should have not taken part in the execution thereof. However, she not only called the scribe and attesting witnesses of the Will but she herself was also present throughout. Undisputedly, the land situated in village Dharanji-Dharobtan inherited by the testatrix from her father was released by her in favour of defendant vide relinquishment deed Ext. DW4/A. Had her intention been to part with the land in dispute also in favour of her mother, the defendant, she would have included the same also in Ext.DW4/A and relinquished the same in her favour. 21. DW4/A. Had her intention been to part with the land in dispute also in favour of her mother, the defendant, she would have included the same also in Ext.DW4/A and relinquished the same in her favour. 21. Interestingly, while the scribe DW-3 belongs to village Majhgaon, one of the attesting witnesses Shri Kailash Chand DW2 to village Jabal and the other attesting witness Lal Singh to village Laghech. It can be inferred from the own statement of the defendant that the villages of these three witnesses are distantly located from Chilla Khurd where the land in dispute is situated. It is not understandable as to why anyone from village Chilla Khurd was not associated to witness the execution of the Will, in question, particularly when as per her own version 8 houses are situated there. 22. Above are thus the suspicious circumstances which render the Will in question highly doubtful. 23. It has been held by the Hon’ble Apex Court in (2009) 3 SCC 687 Bharpur singh and others Vs. Shamsher Singh, that when a Will is shrouded by suspicious circumstances, it cannot be treated as the last testamentary disposition of the testator. Relevant portion of the judgment reads as under: “22. We may notice that in Jaswant Kaur vs. Amrit Kaur & ors. [ (1977) 1 SCC 369 ] this Court pointed out that when the Will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and defendant. An adversarial proceeding in such cases becomes a matter of Court's conscience and propounder of the Will has to remove all suspicious circumstances to satisfy that Will was duly executed by testator wherefor cogent and convincing explanation of suspicious circumstances shrouding the making of Will must be offered. 17. Suspicious circumstances like the following may be found to be surrounded in the execution of the Will: i. The signature of the testator may be very shaky and doubtful or not appear to be his usual signature. ii. The condition of the testator's mind may be very feeble and debilitated at the relevant time. iii. The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason. iv. The dispositions may not appear to be the result of the testator's free will and mind. iii. The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason. iv. The dispositions may not appear to be the result of the testator's free will and mind. v. The propounder takes a prominent part in the execution of the Will. vi. The testator used to sign blank papers. vii. The Will did not see the light of the day for long. viii. Incorrect recitals of essential facts.” 24. In this view of the matter, it is difficult to believe that the testatrix, who had five daughters, two of them minors at the relevant time, had any intention to part with the land in dispute and bequeath the same in favour of the defendant, her mother, by way of Will, in question. Otherwise also, since plaintiffs No.5 and 6 were minors at that time, the suit land to the extent of their share could have not been bequeathed in favour of the defendant. 25. The learned lower Appellate Court no doubt has rightly decreed the suit, however, in the peculiar facts and circumstances of the case, I am of the view that it is plaintiffs No. 2 to 6 alone, who should inherit the suit land in equal shares and not their father plaintiff No.1. I am taking this view because of the fact that he has solemnized nd marriage with Smt. Sumitra, as he has admitted himself while in the witness box as PW-1, hence irrespective of he being husband of deceased Pushpa Devi and her Class-I heir under Section 15 read with Section 16 of the Hindu Succession Act, it would be in the ends of justice to allow plaintiffs No. 2 to 6 alone to inherit the property of their deceased mother Smt. Pushpa Devi in exclusion of their father, the plaintiff No.1. 26. In view of the re-appraisal of the evidence available on record, it is held that the learned lower Appellate Court has rightly decreed the suit. It is, however, plaintiffs No. 2 to 6 alone, who are entitled to inherit the suit land of deceased Pushpa Devi and not their father plaintiff No.1. 27. The impugned judgment and decree subject to the modification to the above extent deserve to be upheld. 28. Both the substantial questions are answered accordingly. 29. It is, however, plaintiffs No. 2 to 6 alone, who are entitled to inherit the suit land of deceased Pushpa Devi and not their father plaintiff No.1. 27. The impugned judgment and decree subject to the modification to the above extent deserve to be upheld. 28. Both the substantial questions are answered accordingly. 29. In view of the foregoing reasons, this appeal partly succeeds and the same is accordingly allowed. The impugned judgment and decree is upheld with the modification that it is the plaintiffs No. 2 to 6 who are joint owners in possession of the suit land to the extent of 9 shares out of total 96 shares. Appeal stands disposed of accordingly.