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2013 DIGILAW 1092 (PNJ)

Hira Nand v. Maya Devi

2013-08-19

MAHAVIR S.CHAUHAN

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JUDGMENT MAHAVIR S. CHAUHAN, J. Mussadi Lal, the original owner of the suit property, had three daughters, namely, Maya Devi, Vidya and Muthari. Hira Nand and Prem Chand are sons of Vidhya. Hira Nand was adopted by Mussadi Lal as his son. One of the daughters of Mussadi Lal, namely, Maya Devi, brought the suit before Sub Judge, 1st Class, Mahendergarh (hereinafter referred to as the trial Court) for declaration to the effect that she and proforma defendant No. 3 (Muthari) were owners of the suit land to the extent of 2/3rd share, and were entitled to separate possession of the land qua their respective shares. However, according to the plea of the plaintiff, the defendants did not admit her claim and this compelled her to approach the court for the claimed relief of declaration and possession. Defendant No. 3, Muthari filed a written statement of admission while defendants No. 1 and 2 contested the suit by filing a written statement with preliminary objections, interalia, to the effect that the plaintiff had no locus standito maintain the suit and that the suit, even otherwise, was not maintainable in the present form. It was also stated by them that first defendant namely, Hira Nand, was taken in adoption by Mussadi Lal and a joint deed of adoption and will was executed on 14.04.1965. As such, the first defendant was the sole owner of the suit property left behind Mussadi Lal. (Though the document, Exhibit DW3/A, is dated 11.04.1965 but the date of this document has been mentioned as 14.04.1965 in the pleadings, issues and judgments of the courts below and, as such, to avoid confusion, the date of this document has been given as 14.04.1965). According to the contesting defendants, the suit property was coparcenary property and, as such, parties being governed by Hindu Law, first defendant alone was entitled to 5/8th share therein. Relationship inter se the parties was denied by first and second defendants in the written statement. A replication to the written statement filed on behalf of first and second defendants was filed by the plaintiff, whereby contents of the written statement were denied and those of plaint were reasserted. From the pleadings of the parties, following issues were framed by the learned trial Court:- "1. Whether the deceased Mussadi Lal had taken defendant No. 1 Hira Nand in adoption? If so to what effect? OPD 2. From the pleadings of the parties, following issues were framed by the learned trial Court:- "1. Whether the deceased Mussadi Lal had taken defendant No. 1 Hira Nand in adoption? If so to what effect? OPD 2. Whether the deceased Mussadi Lal had executed a valid will in favour of defendant No. 1 Hira Nand on 14.04.1965? If so to what effect? O.P. Parties 3. In case issue No. 2 is not proved who are the heirs of deceased Mussadi Lal and to which share they are entitled in his estate? O.P. Parties. 4. Whether plaintiff has no locus standi to bring the suit? OPD. 5. Whether the suit in the present form is not maintainable? OPD. 6. Whether the suit is false and frivolous and defendants are entitled for compensatory costs? OPD. 7. Relief." After both the sides had adduced evidence in support of their respective pleas, learned trial Court afforded them an opportunity of hearing, perused the evidence available on record, returned findings on issue No. 1 and 2 in favour of the contesting defendants on issue no. 2 in favour of defendant No. 1 and on issues No. 5 and 6 against defendants No. 1 and 2, decided issue No. 3 as having become redundant in view of finding on issue No. 2 and issue No. 4 against defendants as not pressed, and vide judgment and decree dated 18.02.1985, dismissed the plaintiff's suit with costs. Judgment and decree dated 18.02.1985 of the trial Court, was challenged by the plaintiff by way of Civil Appeal No. 335 of 02.09.1985 which, after contest, was partly accepted by the court of learned Additional District Judge, Narnaul, (hereinafter referred as the 1st Appellate Court) and the plaintiff, along with her sister Muthari, was awarded a decree (dated 15.09.1987) of joint possession to the extent of 1/4th share each in the suit land along with their brother Hira Nand and sister's son Prem Chand, leaving the parties to bear their own costs. Feeling aggrieved by the judgment and decree, dated 15.09.1987, of the learned first Appellate Court, the defendant, Hira Nand has brought this appeal under Section 100 of the Code of Civil Procedure impleading the plaintiff (Smt.Maya Devi) as respondent No. 1 and her codefendants, Prem Chand and Muthari as respondents No. 2 and 3. There is no representation on behalf of the respondents. There is no representation on behalf of the respondents. I have heard learned counsel for the appellant and with his able assistance have gone through the record requisitioned from the courts below. Before proceeding further it may be appropriate to point out that the learned trial court proceeded on the premises that the document dated 14.04.1965 was an adoption deed as also a will executed by Mussadi Lal in favour of the defendant, Hira Nand, and for that reason, dismissed the suit of the plaintiff (respondent No. 1 herein). However, first Appellate Court disagreed with the finding, so recorded, by the learned trial court and held that while there was no contest to the adoption of Hira Nand as the son of Mussadi Lal but the document dated 14.04.1965 (Ex.DW3/A) could not be said to be a will and it was in this situation that the estate of Mussadi Lal was ordered to be inherited by the parties by way of natural succession. Even in the instant appeal, there is no challenge to adoption of Hira Nand, as the son by Mussadi Lal, therefore, this Court need not dilate on this issue. Thus, the controversy is narrowed down to the question whether the document dated 14.04.1965 (Ex.DW3/A) was the last will and testament of Mussadi Lal. Learned counsel representing the appellant, has strongly contended that learned first Appellate Court has wrongly recorded that the portion of document (Ex.DW3/A) with regard to be queathment of his estate by Musadi Lal upon the appellant was added later on by way of interpolation. The learned counsel has also made me to go through the photo copy of the document, Exhibit DW3/A, available on record to demonstrate that the aforesaid portion is so coherent with the remaining portion of it, that it can not be said to be an addition or interpolation by any stretch of imagination. After going through the document (Ex.DW3/A), the portion referred to above, does not appear to be added by way of interpolation but be that as it may, this document has not been proved to be a valid will. Section 63 of the Indian Succession Act, 1925, lays down the procedure for execution of a valid will, which reads as under:- "Section 63 –– Execution of Unprivileged wills. Section 63 of the Indian Succession Act, 1925, lays down the procedure for execution of a valid will, which reads as under:- "Section 63 –– Execution of Unprivileged wills. Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules:- (a) 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. (b) The signature or mark or the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. (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 acknowledgment of his signature or mark, or 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." This is also apposite to refer here to Section 68 of the Indian Evidence Act, 1892 which provides the procedure to be adopted for proof of a will. It lays down as under:- "Section 68 –– Proof of execution of document required by law to be attested. It lays down as under:- "Section 68 –– Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied." After going through the above cited two provisions, i.e. Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, there remains no doubt as far as manner of execution and proving a will is concerned. According to these provisions, a will must be executed by the testator with sound mind and must be attested by two witnesses. The testator must append his signature/thumb impression on the will in the presence of the witnesses and the witnesses must append their attestation in the presence of the testator. In addition to the above, a pro-pounder of the will (appellant in the case in hand) has to dispel the suspicious circumstances , if any, surrounding the will. When tested on this touchstone, the document (Ex.DW3/A) is not found to have been proved to be a valid will. It is very specifically stated by the learned first Appellate Court that it could not be disputed during the course of arguments that none of the witnesses asserted that the testator had appended his signature/thumb mark on the document (Exhibit DW3/A) in his presence and that the witnesses had attested the same in the presence of Mussadi Lal, the testator. Therefore, the document (Exhibit DW3/A) cannot be said to have been proved as a will. Further, Mussadi Lal was survived by three daughters. One of the daughters namely Smt. Vidhya has since expired, and is survived by two sons, Hira Nand (the appellant herein) and the proforma respondent, Prem Chand. Assertion of the plaintiff that the property left behind by Mussadi Lal is coparcenary property, has remained undisputed. Further, Mussadi Lal was survived by three daughters. One of the daughters namely Smt. Vidhya has since expired, and is survived by two sons, Hira Nand (the appellant herein) and the proforma respondent, Prem Chand. Assertion of the plaintiff that the property left behind by Mussadi Lal is coparcenary property, has remained undisputed. In this situation, Mussadi Lal, the testator was required to explain the reasons that compelled him to exclude his three daughters and one grandson, Prem Chand, from inheriting his property after his death. There is not even a whisper in this respect in the document, Ex DW3/A. Another circumstance which shows that document (Ex.DW3/A) was not executed as a will by Mussadi Lal is only a deed of adoption, rather is the mutation, bearing No. 355, Ex.D/1. This document has been proved on record by the contesting defendants, including the appellant, and that being so, can be used against their interest. A perusal of this document (Ex.D1) would show that the appellant has claimed himself to be the adopted son of Mussadi Lal and he has not put forth his claim to the entire property left behind by Mussadi Lal on the basis of a will. Silence of the appellant in the matter speaks volumes and leaves nothing to doubt because even the appellant did not claim the document, Exhibit DW3/A, to be a will. In view of the above discussion, the document (Ex.DW3/A) cannot be said to be the last will and testament of Mussadi Lal. As a natural consequence of what has been said and discussed above, the property left behind by Mussadi Lal has to be inherited by his legal heirs by way of natural succession. No objections have been raised as regards the extent of shares of the parties in the suit property. In view of the above, findings recorded by the learned first Appellate Court, vide judgment and decree dated 15.09.1987, are affirmed. No substantial question of law is found to be involved in this appeal, and therefore, the appeal is hereby dismissed with costs.