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2012 DIGILAW 847 (HP)

Chander Kant v. Ram Kishan

2012-11-19

RAJIV SHARMA

body2012
Judgment Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree dated 2.11.2001 rendered by the learned District Judge, Kullu in Civil Appeal No.45/2000. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that respondent-plaintiff (hereinafter referred to as the ‘plaintiff’ for convenience sake) filed a suit for declaration and consequential relief of injunction against the appellant/defendant Chander Kant and proforma defendants Smt. Roma Devi, Ramesh Chand and Prem Prakash sons of Sh. Ram Krishan. According to the plaintiff, land comprised under Khewat/Khatauni No. 1003/1528 bearing Khasra No. 8152 measuring 7-0-0 bighas, land comprised under Khewat/Khatauni No. 1009/1539 bearing Khasra No. 4596/3 measuring 6-3-6 bighas to the extent of 120/254 shares and the land comprised of Khewat/Khatauni No. 1005/1530 bearing Khasra Nos. 4252, 4593, 6945, 6946 and 7122 kitas 5 measuring 10-14-0 bighas to the extent of one half share situated in Muhal Trambli, Phati Kharahal, Kothi Kais, Tehsil and District Kullu, H.P. was owned and possessed by Sh. Tikam Ram, father of the plaintiff and defendants No. 1 and 2, namely, Chander Kant and Roma Devi and grand-father of proforma defendants. Sh. Tikam Ram expired on 16.4.1986. According to the plaintiff, defendant Chander Kant in order to grab the property of deceased Tikam Ram manipulated a forged and fictitious unregistered “will” dated 1.4.1986. According to him, this “will” was never executed by Tikam Ram in favour of Chander Kant defendant. According to him, “will” is surrounded by suspicious circumstances. He presented the “will” before the revenue officer for attestation of mutation on 6.12.1988. Plaintiff and proforma defendant No.2 raised objection before the revenue officer against the “will”. Thereafter, defendant Chander Kant moved an application under section 40 and 41 of the Indian Succession Act for the registration of the “will”. However, the same was withdrawn for want of prosecution. The matter of mutation of inheritance remained pending for about 11 years. Defendant Chander Kant in collusion with the subordinate revenue officials got the mutation attested in his favour on the basis of unregistered and forged “will” vide mutation No. 6338 dated 11.9.1997 in the absence of the plaintiff and proforma defendant No.2 Roma Devi. 3. Suit was contested by defendant No.1. According to him, the “will” dated 1.4.1986 was duly executed by Tikam Ram in his favour. The plaintiff had the knowledge of the execution of the “will”. 3. Suit was contested by defendant No.1. According to him, the “will” dated 1.4.1986 was duly executed by Tikam Ram in his favour. The plaintiff had the knowledge of the execution of the “will”. The “will” was executed by Tikam Ram in sound disposing mind in the presence of scribe and attesting witnesses. 4. Replication was filed by the plaintiff. Learned Senior Sub Judge framed issues on 5.6.1998. Trial Court decreed the suit on 29.2.2000 and declared the “will” dated 1.4.1986 executed in favour of Chander Kant by Tikam Ram as forged and fictitious document and the mutation attested on the basis of “will” in question was also declared illegal and invalid. Defendant Chander Kant filed an appeal before the learned District Judge, Kullu against the judgment and decree dated 29.2.2000. Defendant Chander Kant had not arrayed the proforma defendant, namely, Roma Devi, Ramesh Chand and Prem Prakash at the time of filing an appeal before the District Judge, Kullu. Learned District Judge dismissed the appeal. Hence, the present Regular Second Appeal. It was admitted on the following substantial questions of law: 1. “What is the effect of non-joinder of defendants No.2 to 4 as parties in appeal before the first appellate court as well in the present appeal? 2. Whether in the facts and circumstances of the case, learned District Judge has misconstrued, misinterpreted and misapplied the evidence on record and the view taken by him against the execution of the will is perverse and is otherwise not possible on the basis of material on record?” 5. Mr. K. S. Kanwar has strenuously argued that both the courts below have misconstrued and misinterpreted the oral as well as documentary evidence. He also argued that the first appeal was maintainable without arraying proforma defendants, namely, Roma Devi, Ramesh Chand and Prem Prakash. 6. Mr. T.C. Sharma has supported the judgments and decrees of both the Courts below. 7. I have heard the learned counsel for the parties and have perused the records and pleadings carefully. 8. Since both the substantial questions of law are interconnected and interlinked they are taken up together for determination to avoid repetition of discussions of evidence. 9. Plaintiff has appeared as PW-1. According to him, his father Tikam Ram died on 16.4.1986. His children were looking after his father Tikam Ram. According to him, defendant Chander Kant was living separately from his father since 1959. 9. Plaintiff has appeared as PW-1. According to him, his father Tikam Ram died on 16.4.1986. His children were looking after his father Tikam Ram. According to him, defendant Chander Kant was living separately from his father since 1959. Defendant, according to him, has executed forged “will” after six months of the death of his father. He presented the “will” for the purpose of mutation. The same was objected by him and his sister Roma Devi. The “will” was also produced before the Sub Registrar for the purpose of registration. The proceedings continued upto 1991. Thereafter, plaintiff withdrew the application. According to him, the “will”, which was presented before the Sub-Registrar was dated 11.4.1986 and the “will” on the basis of which the mutation was attested in favour of Chander Kant defendant was dated 1.4.1986. He also stated that neither he nor proforma defendants were given an intimation before attesting the mutation. The “will” did not bear signatures of his father. The “will”, according to him, was manipulated by the defendant in connivance of witnesses Raj Kumar and yog Raj. According to him, there were two separate “wills” dated 11.4.1986 and 1.4.1986 with different handwriting. 10. PW-2 Chuni Ram has proved the application under sections 40 and 41 of the Indian Succession Act moved by Chander Kant before the Sub-Registrar, Kullu for the purpose of registration of “will” vide Ex.PW-2/A. The certified copy of notice to public of the application is Ex.PW-2/B. The copy of objections is Ex.PW-2/C. The application was rejected vide Ex.PW-2/F. The application for withdrawal of application before the Sub-Registrar is Ex.PW-2/E. 11. According to PW-3 Lal Chand, Tikam Ram was living with the plaintiff. He and his family members rendered the services to him. Defendant, according to him, was not in good terms with Tikam Ram. He was living separately from the plaintiff as well as deceased. 12. According to PW-4 Chuni Ram, Chander Kant had applied for nautor land. He had also filed an affidavit with the application. He has proved the certified copy Ex.PW-4/A signed by Chander Kant. He has also produced the affidavit on the basis of which Tikam Ram was granted nautor land vide Ex.PW-4/B. According to him, at the time of granting nautor land in favour of Tikam Ram, Sh. Kaidar Nath son of Jog Ram had filed objections. 13. He has proved the certified copy Ex.PW-4/A signed by Chander Kant. He has also produced the affidavit on the basis of which Tikam Ram was granted nautor land vide Ex.PW-4/B. According to him, at the time of granting nautor land in favour of Tikam Ram, Sh. Kaidar Nath son of Jog Ram had filed objections. 13. PW-5 Budh Ram has brought the original ‘“will”, the certified copy of which is Ex.DA. PW-6 Prithvi Ram, Record Keeper, Sub Divisional Soil Conservation Office, Kullu, has proved the certificate Ex.PW-6/A. According to Ex.PW-6/A, the loan raised by deceased Tikam Ram was re-paid after his death by the plaintiff. The receipt to this effect is Ex.PW-6/B. PW-7 Jai Singh, Registration Clerk of the office of Sub-Registrar, Kullu has proved the sale deed dated 11.3.1992 vide Ex.PW-7/A. 14. Defendant Chander Kant has appeared as DW-2. According to him, Tikam Ram has expired on 16.4.1986 and he handed over a “will” to him on 3.4.1986. It was scribed on 1.4.1986. According to him, at the time of writing the “will”, neither he nor the plaintiff was present. He rendered services to his father and also performed his last rites. He submitted the “will” before the Patwari for attestation of mutation, which was attested on 11.9.1997. He has denied that he has presented the “will” before the Sub-Registrar. He has deposed that the loan raised by the deceased was repaid by him. He has admitted that his father had earlier executed a registered “will” in favour of his grand-sons. 15. DW-3 Raj Kumar is an attesting witness to the “will”. He has deposed that the “will” dated 1.4.1986 was written by his father Yog Raj. According to him, defendant Chander Kant was living with his father and the plaintiff was living separately. In his cross-examination, he has also deposed that at the time of scribing the “will”, only grand-son of Tikam Ram, namely, Ghanshyam was present and no other member of the family of the deceased was present. 16. According to Ex.PW-4/A, defendant Chander Kant was living separately from his father for the last 12 years. Thus, it belies his stand that he was living with his father. In Ex.PW-2/A, the date of “will” is 11.4.1986. The public notice was issued vide Ex.PW-2/B. The objections were filed by the plaintiff and Roma Devi vide Ex.PW-2/C. He has withdrawn the application vide Ex.PW-2/F on 18.6.1991. Thus, it belies his stand that he was living with his father. In Ex.PW-2/A, the date of “will” is 11.4.1986. The public notice was issued vide Ex.PW-2/B. The objections were filed by the plaintiff and Roma Devi vide Ex.PW-2/C. He has withdrawn the application vide Ex.PW-2/F on 18.6.1991. However, defendant Chander Kant submitted an application for attestation of mutation “will” dated 1.4.1986. Defendant Chander Kant has withdrawn the application as per order dated 18.6.1991 for registration of the “will”. He has not assigned any reason why the application was withdrawn. He succeeded in getting the mutation attested after eleven years, i.e. 11.9.1997 on the basis of the same “will”. It is evident from Ex.P-4 that neither the plaintiff nor proforma defendant Roma Devi was present at the time of attestation of the mutation. According to defendant Chander Kant, the “will” was scribed by Yog Raj. Yog Raj was not produced in the Court only on the pretext that he was not feeling well. His son has appeared as DW-3. The loan raised by Tikam Ram has been repaid by the plaintiff as per certificate Ex.PW-6/A and the receipt whereof is Ex.PW-6/B. Defendant Chander Kant was living separately from his father. Thus, there was no occasion for him to execute “will” in his favour. According to DW-3 Raj Kumar, only the grand son of Tikam Ram, namely, Ghanshyam was present at the time of execution of the “will”. However, Ghanshyam has not been examined to prove the execution of “will”. Learned trial court has compared the signatures of Tikam Ram in his affidavit Ex.PW-4/B and Ex.DA. This Court has also examined the signatures on Ex.PW-4/B and Ex. DA. The signatures are different. It can, thus, safely be presumed that the signatures on the “will” are forged. Moreover, DW-3 has not given any explanation why his father was unable to attend the Court due to his illness. Thus, it is duly proved by the plaintiff that the will-in-question, i.e. Ex. DA was surrounded by suspicious circumstances. 17. Defendant Chander Kant ought to have arrayed proforma defendant Roma Devi, Ramesh Chand and Prem Prakash in the appeal preferred against the judgment of the learned Senior Sub Judge dated 29.2.2000. Smt. Roma Devi, Ramesh Chand and Prem Prakash were necessary parties for full and final adjudication of the appeal. DA was surrounded by suspicious circumstances. 17. Defendant Chander Kant ought to have arrayed proforma defendant Roma Devi, Ramesh Chand and Prem Prakash in the appeal preferred against the judgment of the learned Senior Sub Judge dated 29.2.2000. Smt. Roma Devi, Ramesh Chand and Prem Prakash were necessary parties for full and final adjudication of the appeal. Defendant Chander Kant has not given any explanation why the proforma defendants were not added as party before the first appellate court. 18. Consequently, both the substantial questions of law are answered accordingly. 19. In view of observations and discussions made hereinabove, there is no merit in the Regular Second Appeal and the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.