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2012 DIGILAW 86 (RAJ)

Ram Singh Mirdha v. LRs of late Mohan Lal

2012-01-06

KAILASH CHANDRA JOSHI

body2012
JUDGMENT 1. - This civil first appeal has been preferred by appellant-defendant Ram Singh being aggrieved by the judgment and decree dated 03.06.1983 passed by learned District Judge, Merta in Civil Original Case No.5/1974, by which the learned trial court allowed the application of respondent-plaintiff Mohan Lal filed under Section 278 of the Indian Succession Act, 1925. 2. Respondent-plaintiff Mohan Lal died during the pendency of the appeal and his legal representatives were taken on record as respondent No.1/1 to 1/5. 3. The brief facts of the case are that respondent- plaintiff Mohan Lal filed an application under Section 278 of the Indian Succession Act in the court of District Judge, Merta praying for issuance of letter of administration in his favour in respect of will (Ex.1). 4. Appellant-defendant Ram Singh objected the issuance of letter of administration on various grounds by filing written statement. A rejoinder was also filed by the respondent-plaintiff. 5. On the basis of the pleadings of the parties, the learned trial court framed the following 6 issues:- 1- vk;k eqLekr fcjnh us 12-1-1959 dks ofl;r ukek lk;y ds gd esa rdehy fd;k\ ,0 2- vk;k eqLekr fcjnh us rkjh[k 30-11-69 dks xSj lk;y mtjnkj ds gd esa olh;r ukek rdehy fd;k\ ,u0,0 3- vk;k tk;nkn dh ekfy;kr de dk;e dh xbZ gS\ ,u0,0 4- vk;k lk;y us fcjnh dh e`R;q ij 2000@& [kpZ fd;s\ ,0 5- vk;k fcy e;[kkZ 12-1-1959 esa eSVhfj;y ,Mhlul ,UM ,YVjsUl gSa\ ,u0,0 6- nknjlh\ 6. On 12.03.1976, an additional issue No.7 was also framed by the learned trial court, which reads as under:- "Whether the will executed without obtaining the prior permission of Colonisation authorities is void ? (N.A.) 7. The respondent-plaintiff in support of his claim examined 7 witnesses, namely, P.W.1 Ganga Singh, P.W.2 Mangi Lal, P.W.3 Mohan Lal, P.W.4 Kan Singh, P.W.5 Shankar Lal, P.W.6 Jalam Singh, P.W.7 Krishan Charan and the appellant-defendant examined 10 witnesses, namely, D.W.1 Ramkishor Mirdha, D.W.2 Vishna Ram, D.W.3 Premsukh Mirdha, D.W.4 Jai Ram, D.W.5 Chaturbhuj, D.W.6 Ram Singh, D.W.7 Harji Ram, D.W.8 Prahlad Ram, D.W.9 Bhoj Raj, D.W.10 Ramnath. 8. After hearing the arguments of both the parties, the learned trial court vide the impugned judgment and decree dated 03.06.1983 decreed the suit of the respondent-plaintiff. Being aggrieved by the same, the appellant-defendant has preferred this civil first appeal. 9. 8. After hearing the arguments of both the parties, the learned trial court vide the impugned judgment and decree dated 03.06.1983 decreed the suit of the respondent-plaintiff. Being aggrieved by the same, the appellant-defendant has preferred this civil first appeal. 9. The learned counsel for the appellant-defendant contended that the learned trial court has erred in deciding the issue No.1 in favour of the respondent-plaintiff because even from a bare perusal of will (Ex.1), it is clear that on page No.2 of the same, 2 lines as objected by the defendant are in different handwriting and even by naked eyes it can be seen that these 2 lines were added later on, but the learned trial court has failed to consider this aspect and decided the issue No.1 in favour of the respondent-plaintiff. 10. Per contra, the learned counsel for the respondent plaintiff contended that the finding of the learned trial court on the issue No.1 is based on detailed appreciation of the evidence of both the parties and therefore, the same does not require any interference at the first appellate stage. 11. I have considered the submissions made by the learned counsel for the parties and perused the impugned judgment passed by the learned trial court as well as the evidence of both the parties. 12. For deciding this appeal, I am dealing with each issue decided by the learned trial court separately. 13. Issue No.1:- This issue relates to the execution of the will dated 12.01.1959 by Smt. Birdi in favour of the respondent plaintiff. In the written statement, the appellant-defendant has not disputed the execution of the will, but in his statement he deposed that in the will dated 12.01.1959 (Ex.1) portion C to D was added later on and in view of further addition of portion C to D, there appears to be material alteration and modification in the will, therefore, the will is void and ineffective. The learned trial court also decided this issue in the same light and decided the issue No.1 only to the extent whether in the will (Ex.1), portion C to D was added later on after execution of the will. The learned trial court also decided this issue in the same light and decided the issue No.1 only to the extent whether in the will (Ex.1), portion C to D was added later on after execution of the will. The said portion C to D of the will (Ex.1) reads as under:- " vkSj Hkh esjs ikl esjs thoudky esa tks dqN Hkh [ksr edku udnh oxSjg tgka dgha Hkh gksaxs mu lcds dkfey ekfyd rqe esjh e`R;q ds ckn gksoksxsA " 14. The respondent-plaintiff in this respect has examined himself has P.W.3 and admitted that the will (Ex.1) was executed by Birdi and she put her thumb impression in his presence and entire facts of the will were read over to Birdi and further he categorically denied the fact of addition of portion C to D in the will later on. Another important witness examined by the respondent-plaintiff is P.W.1 Ganga Singh, who also admitted that Birdi put her thumb impression on the will (Ex.1) in his presence and at that time she was conscious. He also admitted his signature from A to B on the will. The second attesting witness of the will is P.W.2 Mangi Lal, who also corroborated the evidence of P.W.1 Ganga Singh. P.W.5 Shankar Lal is the deed-writer who wrote the will (Ex.1) and he also deposed that portion C to D of the will was written at the time of initial stage and he also explained the reason why portion C to D was written by a different pen. He categorically denied the fact that portion C to D was added later on. Thus, from the evidence of the respondent-plaintiff, it is clearly proved that the will (Ex.1) was written in the premises of the court of the District Judge and it was written by deed-writer P.W.5 Shankar Lal in the presence of P.W.1 Ganga Singh, P.W.2 Mangi Lal, P.W.3 Mohan Lal and P.W.6 Jalam Singh. It is an admitted fact that P.W.1 Ganga Singh and P.W.6 Jalam Singh are of different caste than that of the respondent-plaintiff and they are independent witnesses. The learned trial court while relying upon the testimony of these independent witnesses decided the issue No.1 in favour of the respondent-plaintiff. It is an admitted fact that P.W.1 Ganga Singh and P.W.6 Jalam Singh are of different caste than that of the respondent-plaintiff and they are independent witnesses. The learned trial court while relying upon the testimony of these independent witnesses decided the issue No.1 in favour of the respondent-plaintiff. The learned trial court also recorded its finding on the fact of different inks and ultimately came to the conclusion that the difference of ink was for some reasonable cause and from the evidence of the witnesses it is clearly proved that portion C to D of the will (Ex.1) was in existence at the time of initial stage of execution of the will and it was not added later on. The learned trial court also considered the evidence of D.W.10 Ramnath, who admitted in his cross-examination that during the old age of Birdi, respondent-plaintiff Mohan Lal took her care and after her death he performed her last rituals. The learned trial court took into consideration each and every evidence adduced by both the parties and the circumstances in which the will was executed by Birdi in favour of respondent-plaintiff Mohan Lal and the fact that independent witnesses supported the evidence of the respondent-plaintiff and thus, the learned trial court recorded its finding on the issue No.1, which cannot be said to be perverse, illegal or against the evidence produced by the parties. Accordingly, the findings of the learned trial court on the issue No.1 are affirmed. 15. Issue No.5:- This issue is regarding material alterations and additions in the will (Ex.1). In the light of affirming of the findings of the learned trial court on the issue No.1, the issue No.5 does not require separate adjudication. Thus, the findings of the learned trial court on the issue No.5 are affirmed. 16. Issue No.2:- This issue is regarding the will (Ex.A.1) dated 30.11.1963 executed in favour of the appellant-defendant Ram Singh by Birdi. The learned trial court while considering the contradictions in the statement of defendant Ram Singh regarding handing over and execution of the will (Ex.A.1) in his favour, disbelieved the evidence of defendant Ram Singh as well his other witnesses. The learned trial court recorded its finding that the will (Ex.A.1) and agreement (Ex.A.2) both are forged documents. The learned trial court while considering the contradictions in the statement of defendant Ram Singh regarding handing over and execution of the will (Ex.A.1) in his favour, disbelieved the evidence of defendant Ram Singh as well his other witnesses. The learned trial court recorded its finding that the will (Ex.A.1) and agreement (Ex.A.2) both are forged documents. The learned trial court appreciated the evidence of D.W.1 to D.W.10 and recorded the finding that the witnesses examined by the defendant were mostly with regarding to cultivation of land by the defendant. The appellant-defendant did not prayed for any certificate of administration in his favour, therefore also the learned trial court observed that other circumstances are against the defendant. I have also perused the statements of the witnesses and none of the witnesses has given trustworthy deposition regarding execution of the will (Ex.A.2) and the agreement (Ex.A.2). There are material contradictions in the statements of the witnesses. Even D.W.1 Ramkishor has been declared hostile and D.W.2 Vishna Ram and D.W.3 Premsukh Mirdha are only the witnesses of cultivation of land and there was no controversy or issue regarding the cultivation of land in the suit. D.W.4 Jai Ram was the witness of agreement (Ex.A.2), but he was declared hostile. D.W.9 Bhoj Ram is also a witness of cultivation. The learned trial court appreciated each and every part of the evidence and I see no reason to differ from the findings recorded by the learned trial court on the issue No.2. Accordingly, the findings of the learned trial court on the issue No.2 are also affirmed. 17. Issue No.3:- This issue is regarding the court fees and the same was decided on 06.10.1976 and in pursuance to that order, the court fees was also paid, therefore, this issue does not require adjudication in this appeal. 18. Issue No.4:- This issue is regarding the expenditure of Rs. 2000/- incurred by respondent-plaintiff in the last rituals of Birdi. The respondent-plaintiff specifically deposed in his evidence that he incurred Rs. 2000/- in the last rituals of Birdi and in his rebuttal no evidence was adduced by the defendant, therefore, the issue No.4 was decided in favour of the respondent-plaintiff and the findings of the learned trial court on this issue are affirmed. 19. Issue No.7:- This issue is whether the will executed without obtaining the prior permission of Colonisation authorities is void. 19. Issue No.7:- This issue is whether the will executed without obtaining the prior permission of Colonisation authorities is void. The learned trial court while relying upon the judgment in the case of Jageer Singh v. Dan Singh reported in 1974 RRD 341 decided this issue in favour of the respondent-plaintiff and held that a will does not come within the definition of transfer because it operates after the death of the executor of the will. I see no reason to differ from the finding recorded by the learned trial court on this issue, accordingly, the finding of the learned trial court on the issue No.7 is affirmed. 20. In view of the discussion made hereinabove, the findings of the learned trial court on all the issues are affirmed. In my considered view, the impugned judgment and decree passed by the learned trial court does not call for interference in this appeal and the appeal being devoid of any merit deserves to be dismissed. 21. Consequently, this civil first appeal is hereby dismissed and the impugned judgment and decree passed by the learned trial court is affirmed. No order as to costs.Appeal Dismissed. *******