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2012 DIGILAW 951 (HP)

Mule Ram v. Krishan Singh

2012-12-07

DEV DARSHAN SUD

body2012
JUDGMENT Dev Darshan Sud, J. This appeal has been directed against the judgment of two Courts below dismissing the suit of the plaintiff praying for a decree of declaration and injunction and in the alternative, decree for possession by revocation of the gift deed. 2. Plaintiff Sunder Singh, who died during the pendency of the suit and represented by Mule Ram and Shyam Singh, instituted the suit out of which this appeal arises on the allegations that Sunder Singh was married to one Soli Devi. Defendant Kishan Singh was the son from this marriage. He later married Nupati Devi and from that he had two sons namely Mule Ram and Shyam Singh who are the plaintiffs before the learned trial Court. It was pleaded that the plaintiff had borrowed money from the parents of his wife Nupati Devi for the purchase of land and construction of house and cowshed comprised in Khasra No. 301 and 302 measuring 7-8-0 bighas. The plaintiff and his wife Nupati Devi purchased 3-14-0 bighas of land. The share of the plaintiff comes 1-17-0 bighas. Out of this purchased land, he gifted 0-10-0 bighas to the defendant with the consent of his wife Nupati Devi. The plaintiff met with an accident and became crippled. His wife started construction of the house. When she was in the need of monetary assistance, the plaintiff asked the defendant for some assistance which was agreed by the defendant and asked the plaintiff to come to Kullu from where he would get the money from the bank and he would also treat him at the hospital at Kullu where the defendant in connivance with the marginal witnesses prepared a gift deed Ext.DW3/A telling the plaintiff that certain papers were required to be prepared for borrowing money from the bank. He also told that since this document requires registration of the Sub Registrar, therefore say ‘yes’ if some inquiry would be made by the officer. The true facts of the case were suppressed and in this eventuality, a gift deed was prepared instead of borrowing the money from the bank or the financial institution for treatment of the plaintiff. 3. The plaintiff came to know about this fact in the second week of August, 1998 when he asked the defendant to pay him the money for assistance/treatment as was assured by him but the defendant refused. 3. The plaintiff came to know about this fact in the second week of August, 1998 when he asked the defendant to pay him the money for assistance/treatment as was assured by him but the defendant refused. At this juncture, the plaintiff, his wife and Mule Ram came to Kullu, inquired from the office of Sub Registrar and were surprised to learn that a gift deed, instead of some documents for the purpose of obtaining money, was prepared. The defendant was asked to cancel this gift deed, but he refused to do so and therefore, in these circumstances, there was no option except to seek cancellation/annulment of the gift deed. The plaintiff died before the written statement was filed. 4. The appellants herein prosecuted the case as his heirs. The pleadings of the plaintiff were refuted by the defendant and pleaded that Will Ext.PW2/A set up by Sunder Singh was forged and fictitious. The learned trial Court settled seven issues. Two being crucial were (a) the validity of Will Ext.PW2/A; (b) whether the gift deed was forged as pleaded. The learned trial Court, on the basis of the evidence more especially of PW1 Shri Mule Ram, holds that his statement cannot be relied upon for the reason that he had put up a different story in Court from the facts pleaded in the plaint and his evidence was self contradictory. In examination in chief, he had stated that his father was brought by the defendant to Kullu on the pretext that some documents were required to be executed for obtaining a loan and gift deed Ext.DW3/A was registered. He says that his father continued used to visit Kullu thereafter and later on asked the defendant to take him to Chandigarh for treatment but the defendant refused to give any money and started threatening him. The Court holds that this testimony is absolutely contradictory to the pleadings in the plaint. 5. Nupati Devi, who has appeared as PW4, states about the plaintiff being taken to Kullu by the defendant and after sometime threatened him to vacate possession of the suit land. She states that the plaintiff was beaten up by the defendant and his wife and it is thereafter the plaintiff came to Kullu and came to know about the fraud played upon him. PW5 Baldev Singh also states about the fraud. She states that the plaintiff was beaten up by the defendant and his wife and it is thereafter the plaintiff came to Kullu and came to know about the fraud played upon him. PW5 Baldev Singh also states about the fraud. He states that he helped Sunder Singh to file the claim petition before the Motor Accident Claims Tribunal and thereafter he came to know that the defendant asked the plaintiff to prepare the documents and was beaten up by the defendant. The learned trial Court relied upon the evidence of DW3 Sita Ram scribe of the gift deed, DW4 Rakesh Kumar marginal witness of the deed, who stated that deed was duly executed on 3.7.1998 and presented before the Sub Registrar. He states that this was not registered in the first instance as his wife appeared before the Sub Registrar and raised some objections regarding registration. On the next day, Sunder Singh himself filed an affidavit and it was in these circumstances gift deed was registered. Shri R.B. Thapa the then Tehsildar Kullu stated that document Ext.DW3/A was produced before him for registration but Sunder Singh’s wife raised objection and he advised the parties to settle the matter amicably. Thereafter the document was presented before him on 4.7.1998 and on the basis of affidavit Ext.DW5/A filed by Sunder Singh, registered the Gift deed. There is no effective cross examination of this witness to the effect that Sunder Singh never appeared before him nor furnished any affidavit. The Court then holds that there was no evidence of fraud or the same having been practiced on the plaintiff. The suit was dismissed. 6. The appeal was preferred against the judgment where the same evidence was perused. The learned Appellate Court, on the evidence of the record and after re-appreciation, holds that evidence of three witnesses namely PW1 Mule Ram, PW4 Nupati Devi and PW5 Baldev Singh is contradictory and the evidence of DW3 Sita Ram scribe, DW4 Rakesh Kumar, Advocate, as also that of DW5 R.B. Thapa, who was the Sub Registrar at the relevant point of time, who had stated regarding the objection raised by the wife of the plaintiff and again the plaintiff had filed an affidavit before the Registrar that he has no objection for registration of the gift deed has been relied upon and confirmed the findings of the learned trial Court. It is in these circumstances, this appeal has been preferred before me. 7. The appeal was admitted on 21.3.2003 on the following substantial question of law:- 1. Whether the learned lower Court below was justified in holding that the gift deed dated 4.7.1998 Ext.DW3/A was a valid one without having any legal proof of the same and whether gift deed can be proved without examining its marginal witnesses? 8. In Pentakota Satyanarayana and others vs. Pentakota Seetharatnam and others AIR 2005 SC 4362 the Supreme Court dealing with the question of attestation of the Will holds:- “24. A perusal of Ex.B9 (in original) would show that the signatures of the Registering Officer and of the identifying witnesses affixed to the registration endorsement were, in our opinion, sufficient attestation within the meaning of the Act. The endorsement by the sub-registrar that the executant has acknowledged before him execution did also amount to attestation. In the original document the executant signature was taken by the sub-registrar. The signature and thumb impression of the identifying witnesses were also taken in the document. After all this, the sub-registrar signed the deed. Unlike other documents the Will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his Will or not and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and the testament of departed testator. 25. In the instant case, the propounders were called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind that he understood the nature and effect of the dispositions and put his signature to the document on his own freewill. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated above. It was argued by learned counsel for the respondent that propounders themselves took a prominent part in the execution of the Will which confer on them substantial benefits. In the instant case, the propounders who were required to remove the said suspicion have let in clear and satisfactory evidence. It was argued by learned counsel for the respondent that propounders themselves took a prominent part in the execution of the Will which confer on them substantial benefits. In the instant case, the propounders who were required to remove the said suspicion have let in clear and satisfactory evidence. In the instant case, there was unequivocal admission of the Will in the written statement filed by P. Srirammurthy. In his written statement, he has specifically averred that he had executed the Will and also described the appellants as his sons and Alla Kantamma as his wife as the admission was found in the pleadings. The case of the appellants cannot be thrown out. As already noticed, the first defendant has specifically pleaded that he had executed a will in the year 1980 and such admissions cannot be easily brushed aside. However, the testator could not be examined as he was not alive at the time of trial. A the witnesses deposed that they had signed as identifying witnesses and that the testator was in sound disposition of mind. Thus, in our opinion, the appellants have discharged their burden and established that the Will in question was executed by Srirammurthy and Ex.B9 was his last Will. It is true that registration of the Will does not dispense with the need of proving, execution and attestation of a document which is required by law to be proved in the manner as provided in Section 68 of the Evidence Act. The Registrar has made the following particulars on Ex.B9 which was admitted to registration, namely, the date, hour and place of presentation of document for registration, the signature of the person admitting the execution of the Will and the signature of the identifying witnesses. The document also contains the signatures of the attesting witnesses and the scribe. Such particulars are required to be endorsed by the Registrar along with his signature and date of document. A presumption by a reference to Section 114 of the Evidence Act shall arise to the effect that particulars contained in the endorsement of registration were regularly and duly performed and are correctly recorded. In our opinion, the burden of proof to prove the Will has been duly and satisfactorily discharged by the appellants. A presumption by a reference to Section 114 of the Evidence Act shall arise to the effect that particulars contained in the endorsement of registration were regularly and duly performed and are correctly recorded. In our opinion, the burden of proof to prove the Will has been duly and satisfactorily discharged by the appellants. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the Will in the manner contemplated by law. In such circumstances, the onus shifts to the contestant opposing the Will to bring material on record meeting such prima facie case in which event the onus shifts back on the propounder to satisfy the Court affirmatively that the testator did know well the contents of the Will and in sound disposing capacity executed the same. (at pp. 4369 & 4370) 9. Learned counsel appearing for the respondent also relies upon the decision of the Supreme Court in Khushalchand Swarup Chand Zabak Jain, Jalgaon vs. Sureshchandra Kanhaiyalal Kochar and another 1995 Supp (2) SCC 36. The submission made by learned counsel is that the executor himself filed an affidavit before the Registration Authority, when DW6 Shri R.B. Thapa states in unequivocal terms that affidavit Ext.DW5/A was executed by the owner himself and accepted the gift deed Ext.DW3/A as being singed by him. Therefore, I find that question of law, as urged, stands answered by the two decisions supra. In these circumstances, the appeal is dismissed. No order as to costs.