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2012 DIGILAW 923 (HP)

Ritta Devi v. Mangla Devi

2012-12-04

SURINDER SINGH

body2012
Judgment Surinder Singh, J. This Regular Second Appeal has been directed by the plaintiff-appellant against the judgment and decree passed by the learned District Judge in Civil Appeal No.19 of 1995 (RBT No.40/2002) dated 21st November, 2002, whereby her suit seeking declaration and injunction was dismissed, by reversing the Trial Court judgment and decree. Hence the present appeal by the appellant, to be referred as “the plaintiff” hereafter. This Regular Second Appeal was admitted by the Court on the following substantial questions of law:- “1. Whether the lower appellate Court has taken erroneous view of law in holding that the registration of the Will tend to eliminate the possibility of fraud being played on the execution of the Will, are not the findings of the lower appellate Court perverse while it upholds the validity of the Will having been influenced by the factor that the Will was got registered by the testator himself and survived about 3 years thereafter without having taken any steps to cancel it? 2. Whether the lower appellate Court has ignored from consideration the provisions of Section 63 of the Indian Succession Act and Section 68 of the Evidence Act in failing to consider due attestation and execution of the Will which was not proved from the statement of DW-7 and DW-8? Could the lower appellate Court without having been satisfied regarding the due execution and registration of the Will reverse well-reasoned findings of the Trial Court?” 2. In brief, the facts can be stated thus. The plaintiff hereinafter had filed the suit for declaration against the respondent i.e. Mangla Devi wife of Shri Joginder Singh, claimed half share and defendants Ram Devi and Lalo Devi, widows of late Shri Achhar Singh another half by inheritance to the estate of Achhar Singh, challenging the Will Ext.DW5/A and mutation Nos. 420, 427 and 865 having been attested on its basis behind their back, being a false and a forged Will. Though, according to her she is also a beneficiary to the extent of 1/3 share along with defendants, but the Will is alleged to be neither legal nor valid, therefore, sought to set aside the mutations aforesaid with a consequential relief of injunction. 3. The defendants, Mangla Devi and Ram Dei (deceased defendant) both offered a strong resistance to the suit and filed their written statement whereas defendant No. 3 Lalo Devi chose to remain ex parte. 3. The defendants, Mangla Devi and Ram Dei (deceased defendant) both offered a strong resistance to the suit and filed their written statement whereas defendant No. 3 Lalo Devi chose to remain ex parte. In their written statement, defendants supported the Will in question being legal and valid and averred that Achhar Singh and his wife Ram Dei, both were being looked after by Mangla Devi defendant and the Will was the result of their love and affection, whereby Mangla Devi was given khasra No. 813, 816, 819 and 539 even its possession was also delivered to her, since then she had been cultivating the same. Further by way of preliminary objections, the points of limitation, cause of action viz-a-viz valuation were taken and the maintainability of the suit was also disputed. 4. The plaintiff controverted the preliminary objections and reaffirmed even paras on merit. 5. The parties were at issue on the following points: i. “Whether the plaintiff is entitled for decree of declaration and permanent injunction as prayed for? OPP ii. Whether the Will dated 21.3.1986 executed by Achhar Singh deceased in favour of defendant No. 1 is legal, valid and operative? If so its effect ? OPD. iii. Whether the suit is within limitation? OP- parties. iv. Whether the plaintiff has no cause of action and locus standi to file the suit? OPD. v. Whether the plaintiff is estopped from filing the suit by her own act and conduct? OPD. vi. Whether defendants No. 1 is the adopted daughter of deceased Achhar Singh? OPD. vii. Relief”. 6. After the complete trial the learned trial Court held that the Will dated 21.3.1986 was not valid and was surrounded by suspicious circumstances, as such answered Issue No. 2 against the defendants and others in favour of the plaintiffs, as such the suit was decreed, which was challenged before the learned District Judge in appeal. 7. The learned first appellate Court re-assessed the evidence and upheld the validity of Will, consequently the appeal was allowed, the judgment and decree of the learned trial Court were set aside. Hence the present appeal was filed which was admitted for hearing prima facie on the substantial questions of law aforesaid. 8. Shri Bhupinder Gupta, learned Senior Advocate duly assisted by Ms. Hence the present appeal was filed which was admitted for hearing prima facie on the substantial questions of law aforesaid. 8. Shri Bhupinder Gupta, learned Senior Advocate duly assisted by Ms. Charu Gupta, Advocate forcefully argued that the learned Lower Court conveniently ignored the provisions of Indian Succession Act qua Will and its mode of proof under the Indian Evidence Act. He also argued that the learned District Judge was greatly influenced by its registration by the testator ignoring to appreciate the fact that the Will stood not proved in accordance with law and was surrounded with suspicious circumstances. It is also argued that the approach of the learned First Appellate Court was wrong while considering the fact that the testator had survived for 3 years after the Will and he did not take any step to cancel it; thus he wrongly proceeded with the presumption of due execution of Will without looking it and properly appreciating the evidence on this point, caused a miscarriage of justice, which resulted into wrong findings. The learned counsel relied upon Sanjeev Kumar and others vs. Piaro Devi and connected matter [Latest HLJ 2008 (HP) 812] which precisely held that the Will was surrounded by suspicious circumstances as the attesting witnesses met in Market and they were asked to become the witnesses, but no reasons were mentioned in the Will for exclusion of legal heirs. Further the testator was suffering from prolonged illness for more than one year was proved and it had also been proved on record whether he was in sound state of mind and he died within one month from the execution of the Will. In these circumstances, the Will was held to be not free from suspicious circumstances. In another case Bal Krishan & Another vs. Shangri Devi and others [Latest HLJ 2008 (HP) 799] the Will was held to be also surrounded by suspicious circumstances on account of the exclusion of the wife from inheritance. It was further held that mere registration of the Will is not sufficient to dispel all suspicions. In another case Bal Krishan & Another vs. Shangri Devi and others [Latest HLJ 2008 (HP) 799] the Will was held to be also surrounded by suspicious circumstances on account of the exclusion of the wife from inheritance. It was further held that mere registration of the Will is not sufficient to dispel all suspicions. Further in Smt. Chaitru and another vs. Kali Dass and another [ 2006 (3) Shim.LC 356 ] this Court upheld the concurrent findings with respect to the rejection of Will on the basis of some apparent inconsistencies, discrepancies and contradictions in testimony of respondents and further that the signatures of the testator and the body of the Will appeared in different ink. Signature on the Will and on the two sale deeds found nothing but an imitation of admitted signatures. 9. Learned counsel for the plaintiff also cited judgment of this Court rendered in Gatinder Kumar and another vs. Pushpa Devi and another [ 2008(2) Shim.LC 173 ] whereby the Will was rejected on the ground that the attesting witnesses and the testator had not affixed their signatures and attested the documents in the presence of each other. Further in Smt. Leela Alias Leela Devi vs. Shri Neelmani [ 2007 (1) Shim.LC 443 ] the Court has relied upon the complete lack of evidence about thumb impression or signatures of the executant or the witnesses on the First Will and this Court took note of the statement of the petition writer who did not state that the executant appended her thumb impression in presence of witnesses. It was in these circumstances that the Will which was registered was held to be not duly proved. 10. Learned counsel for the plaintiff further submitted that even if the registration of the Will is proved, even then the propounder of the Will is obliged to prove its execution in accordance with law. The registration of the Will does not create any presumption of its genuineness, which is otherwise required to be proved independently. To substantiate this point, learned counsel has put reliance on the judgment of this Court rendered in Baru Ram and others vs. Smt. Kishani Devi [1993 (1) Sim.L.C.80] and on Nand Lal vs. State of H.P. and others [Latest HLJ 2007 (HP) 534]. 11. To substantiate this point, learned counsel has put reliance on the judgment of this Court rendered in Baru Ram and others vs. Smt. Kishani Devi [1993 (1) Sim.L.C.80] and on Nand Lal vs. State of H.P. and others [Latest HLJ 2007 (HP) 534]. 11. Shri Sumit Thakur, Advocate for the defendants while supporting the impugned judgment and decree and referring to the statements of attesting witnesses submitted that the testator was proved to be in a fit state of mind and health. The learned counsel further ventilated since he was 80 years of age and could not talk loudly and can in no circumstances be said to be in not disposing state of mind when the evidence on record exhibits that he had taken interest himself to get the Will executed, attested and registered by making proper distribution of his estate to his legal heirs and the defendant No. 1 who was not a stranger to him, but had been looking after him and his both the wives. DW7 Sita Ram is enough to prove the Will, who was examined and has supported the Will. The another witness DW8 Naank Singh has also not denied its execution by the testator rather he had admitted to have become a witness on his request, which goes to show that the said document is a spontaneous, natural and well thought of testament executed rationally and no one was ignored by giving his/her due share. It is also urged that the Will in question satisfies the legal requirement and has been proved in accordance with law, there is no suspicious circumstance and its registration before the sub-Registrar further fortifies its correctness. The learned counsel to buttress his arguments cited Uma Devi Nambiar and Others vs. T.C. Sidhan (Dead) [ 2004 (2) SCC 321 ] whereby the Apex Court has reviewed the case law and the general principle with respect to the Will were restated. Lastly, learned counsel submitted that the learned first Appellate Court has properly exercised its discretion and had not misdirected itself in any manner, thus there is no substantial question of law which arises for determination in this case. 12. I have given my thoughtful consideration to the rival contentions and have carefully re-examined the matter in the light of settled judicial pronouncements. 13. 12. I have given my thoughtful consideration to the rival contentions and have carefully re-examined the matter in the light of settled judicial pronouncements. 13. In my considered opinion, when the Will is registered on the date of execution itself, in that event, his identity stands established by not disputing or rebutting by leading a cogent evidence. But whether the Will is registered or unregistered, it would have the same value, but it must satisfy the legal requirement and it is imperative on its propounder to prove its execution like a criminal case beyond doubt in accordance with law and repel all the suspicious circumstances. But no presumption can be drawn in favour of the registered Will about its genuineness. If the Will though registered fails to satisfy the provisions of Section 63 of the Indian Succession Act and is not proved in accordance with the provisions of Section 68 of the Indian Evidence Act, then despite its registration, it is bound to fail. The learned trial Court entertained following circumstances to suspect the Will. (i) Both the wives of Achhar Singh, namely, Lalo Devi and Ram Dei, were alive. Had Mangla Devi been adopted, Lalo Devi and Ram Dei could have said so and would have been the natural witnesses to this effect and further the Will in question does not recite Mangla Devi to be the adopted daughter of deceased Achhar Singh. (ii) It remained a mystery how and under what circumstances Khasra numbers came to be recorded in the Will itself when there was no document available with the testator and no such Khasra numbers were stated to have been disclosed by him at the time of execution of the Will as stated by DW-7 Sita Ram. (iii) DW-8 Nanak Singh neither accepted his presence alongwith DW-7 Sita Ram nor saw Sita Ram appending his signatures as an attesting witness but Nanak Singh stated to sign the Will by Achhar Singh later on and he did so at his instance. Even DW-7 Sita Ram was not present and feigned ignorance whether the Will was read over and explained to the testator. He was unaware as to who was the scribe of the Will. (iv) Achhar Singh was weak and old person of 80 years and could not even talk properly. 14. Even DW-7 Sita Ram was not present and feigned ignorance whether the Will was read over and explained to the testator. He was unaware as to who was the scribe of the Will. (iv) Achhar Singh was weak and old person of 80 years and could not even talk properly. 14. Thus, the learned trial Court did not feel safe to place reliance on the Will in question. But the learned First Appellate Court while relying upon the statement of attesting witnesses and related circumstances believed the Will and reversed the judgment and decree of the learned trial Court. 15. Section 63 of the Indian Succession Act deals with execution of unprivileged Wills. It lays down that the testator shall sign or shall affix his mark to the Will or it shall be signed by some other person in his presence and by his direction. It further lays down that the Will shall be attested by two or more witnesses, each of whom has seen the testator signing or affixing his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator and each of the witnesses shall sign the Will in the presence of the testator. Section 68 of the Indian Evidence Act, mandates examination of at least one attesting witness in proof of a Will, whether registered or not. The law relating to the manner and onus of proof and also the duty cast upon the Court while dealing with a case based upon a Will has been examined in considerable detail in several decisions by the Apex Court. 16. It is well settled that the mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Indian Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. 17. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. 17. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. 18. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition 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 last Will of the testator. 19. If the propounder himself takes part in the execution of the Will which confers a substantial benefit on him that is also a circumstances to be taken into account and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the Will might be unnatural and might out off wholly or in part near relations. 20. The above proposition of law has been reiterated by surveying its earlier judgment by the Apex Court in Uma Devi’s case supra. In the said case, the Supreme Court further observed that a Will is executed to alter the ordinary mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance especially in a case where the bequest has been made in favour of an offspring. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance especially in a case where the bequest has been made in favour of an offspring. In PPK Gopalan Nambiar v. PPK Balakrishnan Nambiar and Ors. [ AIR 1995 SC 1852 ] Supreme Court held that in suspicious circumstances, it is the duty of the propounder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. Where the propounder succeeds in removing the suspicious circumstances, the Court has to give effect to the Will, even if the Will might be unnatural in the sense that it has cut off wholly or in part near relations. 21. After surveying the judgments cited by the parties and the constant principles of law laid down by the apex Court, it is therefore essential that trustworthy and un-impeachable evidence produced before the Court establish the genuineness and authenticity of the Will. It is always open to the Court to consider the circumstances brought out in evidence or which otherwise appear from the nature and contents of the documents itself coupled with the surrounded circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the parties. 22. Admittedly, the Will in question did not make any reference with respect to the adoption of the defendant Mangla Devi as the daughter of the deceased Achhar Singh and further the Will in question also contains the Khasra numbers to which the testator intends to give it to defendant No.1 Mangla Devi and with respect to the other property, this was his wish to bequeath it to his both the wives and daughter Rita Devi in equal share. It is also admitted that the deceased had no male issue, appears to be quite reliable which cannot be doubted only for the reason that there is a mention of khasra numbers in it. For that the testator must have got it from Patwari, so that there is no dispute later with Mangla Devi in getting mutation attested and representing her share. 23. For that the testator must have got it from Patwari, so that there is no dispute later with Mangla Devi in getting mutation attested and representing her share. 23. DW-1 Mangla Devi stated that earlier she had been living together with the wives of the testator, but after the marriage of Rita Devi, they started living separately. Her husband was serving in the Army, but she had been looking after the testator and his wives. This fact has been substantiated by her husband DW2 Joginder Singh. Further, DW-4 Hakam Chand stated that the marriage of Mangla Devi was solemnized by Achhar Singh. Therefore, it cannot be said that Manga Devi was quite stranger to the family. The Will in question is also to be looked into this background also. Keeping in view the fact that Smt. Ram Devi while filing the joint statement with Mangla Devi has admitted the execution of Will whereas Lalo Devi chose not to contest. 24. DW-7 Sita Ram was a stamp vendor and an attesting witness to the Will. He did not know who was the scribe, but according to him, the Will was written at the instance of Achhar Singh in his presence and at that time another witness Nanak Singh was also present. He identified the Will to be same Will Ext.DW5/A. The Will in question is dated 21.3.1986 and the statement of the witness was recorded on 13.9.1994 i.e after about eight years. Therefore, minor variation in the statements is ignorable. Hence, some discrepancy in his cross-examination, in my opinion, is not fatal. Although, he also stated in cross-examination that Achhar Singh was 80 years of age and at that time he was alone. He did not see any papers with Achhar Singh, but however Achhar Singh had requested him to become a witness. He is stated to have told him that he intended to bequeath his property in favour of his wives and the daughters, but he did not disclose any specific Khasra numbers. However, he had admitted before him that he was bequeathing about 10 kanals of land to defendant Mangla Devi and he expressed his ignorance as to how there was excess land mentioned in the Will. He also admitted that at that time Achhar Singh was speaking slowly and further stated that the Will was read over and explained to the Testator. 25. He also admitted that at that time Achhar Singh was speaking slowly and further stated that the Will was read over and explained to the Testator. 25. As against above statement of DW7 Sita Ram, DW8 Nanak Singh stated that he was told by the testator at ‘Mehre’ that he had prepared a Will in favour of his two daughters and his wives and requested him to become an attesting witness. He did not know who scribed the Will nor he saw any of the beneficiaries, at that time. He did not know whether it was read over and explained to the testator by the scribe, but admitted his signatures on the Will Ext.DW5/A as an attesting witness at the instance of testator. He further stated that he heard that another witness was Sita Ram. In cross-examination, he stated that Achhar Singh was a weak and old man and could not speak properly. He also did not know how much land was given to whom by way of said Will. 26. DW-9 Rajiv Kumar Gupta is the son of the scribe Shri Adhar Gupta who had died. Rajiv has identified the signatures and writing of his father having scribed the Will. Interestingly, there is no allegation imputed either to the scribe or the marginal witnesses. Even there is no evidence of undue influence or allegation of fraud. 27. Further, the Will in question was executed on 21.3.1986 which was got registered on the same day before the Sub-Registrar. It contained the signatures of both the attesting marginal witnesses, not only at the time of its execution, but also at the time of its registration. Therefore, the statement of DW-8 that he had signed it at ‘Mehra’ is not acceptable as it goes against the proved facts. Further, the identity of the testator is not disputed. As already stated, the date of its execution and the time when the witnesses were examined in the Court, some discrepancies are bound to occur owing to various factors. The Will Ext. DW-5/A is proved to have been executed, attested and registered at the same time on the same day. The identity of the testator is not disputed, rather it stands established. The Will Ext. DW-5/A is proved to have been executed, attested and registered at the same time on the same day. The identity of the testator is not disputed, rather it stands established. Further, the statement of DW-8 Nanak Singh examined in the aforesaid background, more specifically when he admitted that it was the testator who asked him about the execution of the Will in favour of the plaintiff and became his witness and signed it has revealed the personal acknowledgement as an attesting witness. But Sita Ram and Nanak Singh had appended their signatures in the presence of the testator as attesting witnesses. Thus there is no legal requirement that both these witnesses should be present at the same time and sign in the presence of each other but they are required to sign in the presence of testator. 28. Therefore, on the above proved circumstances, the legal requirement as per provision of Section 63 of the Indian Succession Act stands fully satisfied. Both the witnesses have become the attesting witnesses as per direction of the testator. Both of them have agreed that the testator admitted having executed a Will in favour of the parties to the lis as aforesaid. There is nothing on record with respect to its manipulation or fabrication to suspect it. In my opinion, mentioning of Khasra numbers in the Will does not make it unnatural or a suspect. The testator has also not been proved to be of a feeble or weak mind, who did not know about the acts to which he was doing and further that there is also no evidence of undue influence, duress or coercion in executing the Will. The suspicious circumstances as observed and relied upon by the learned trial Court are not enough to throw out the Will. 29. Therefore, while concurring with the reasoning for upholding the Will as arrived at by the learned First Appellate Court, as having not taken an erroneous view of law the appeal merits dismissal. 30. For the aforesaid reasons, the substantial questions of law are accordingly answered as aforesaid. 31. No other point is urged or pressed. The appeal is accordingly dismissed. The parties are left to bear their own costs.