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Himachal Pradesh High Court · body

2013 DIGILAW 927 (HP)

Anil Kumar v. Kamla Devi

2013-11-01

SANJAY KAROL

body2013
JUDGMENT : ” Appellants have filed the present appeal under the provisions of Section 100 of the Code of Civil Procedure, assailing the judgment and decree dated 27.12.2012, passed by District Judge, Bilaspur, in Civil Appeal No.5 of 2007, titled as Durga Singh through his LRs and others v. Kamla Devi and others, whereby judgment and decree dated 8.12.2006, passed by the Civil Judge (Senior Division), Ghumarwin, District Bilaspur, Himachal Pradesh, in Civil Suit No.109/1 of 2006/90, titled as Durga Singh and others v. Kamla Devi and others, stands affirmed. Concurrent findings of facts rendered by the Courts below are assailed. 2. Predecessor-in-interest of the parties, Thohla Singh, during his life time, partitioned and transferred ownership of immovable properties owned by him amongst his children. However, he retained part of it, for his personal use and benefit. After his death, allegedly on the basis of Will, one of his sons, namely Rattan Singh claimed ownership. Aggrieved, remaining legal heirs of Thohla Singh and their successor(s) filed a suit for permanent injunction, restraining Rattan Singh from changing the nature of the suit land, being joint estate of Thohla Singh. 3. Appellants-plaintiffs, who have been non-suited by both the Courts below, have filed the instant appeal challenging the findings rendered by the Courts below on the ground that (a) Will dated 15.8.1980 executed by Thohla Singh is shrouded with suspicious circumstances. Relationship amongst all the legal heirs being cordial there was no reason to break the normal line of succession; (b) at the time of execution of Will, Thohla Singh was 90 years of age and as such it be presumed that he had no control over his faculties . Also, he was not of a sound disposing state of mind; (c) beneficiary actively participated in execution of the Will, Rattan Singh misused the trust reposed by Thohla Singh in him; (d) entries of mutation in the revenue record stand effected in the name of all the legal heirs. 4. Both, in support of and opposition of such contentions, Mr. G.D. Verma, learned Senior Advocate appearing for the appellants and Mr. Bhupinder Gupta, learned Senior Advocate, appearing for the respondents, have referred to and relied upon the following decisions rendered by different Courts: 1. M.B. Ramesh (Dead) by LRs. v. K. M. Veeraje URS (Dead by LRs. And others, (2013) 7 SCC 490 : ( AIR 2013 SC 2088 ). 2. Bhupinder Gupta, learned Senior Advocate, appearing for the respondents, have referred to and relied upon the following decisions rendered by different Courts: 1. M.B. Ramesh (Dead) by LRs. v. K. M. Veeraje URS (Dead by LRs. And others, (2013) 7 SCC 490 : ( AIR 2013 SC 2088 ). 2. Suraj Lamp and Industries Private Limited (2) through Director v. State of Haryana and another, (2012) 1 SCC 656 : ( AIR 2012 SC 206 ); 3. Gopal Swaroop v. Krishna Murari Mangal and others, (2010) 14 SCC 266 : (AIR 2011 SC (Civ) 76); 4. Bharpur Singh and others v. Shamsher Singh, (2009) 3 SCC 687 : ( AIR 2009 SC 1766 ); 5. K. Laxmanan v. Thekkayil Padmini and others, (2009) 1 SCC 354 : ( AIR 2009 SC 951 ); 6. Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao and others, (2006) 13 SCC 433 : (AIR 2007 SC 614); 7. Gurdial Kaur and others v. Kartar Kaur and others, (1998) 4 SCC 384 : (AIR1998 SC 2861); 8. Major Singh v. Rattan Singh (Dead) by LRs, and others, (1997) 3 SCC 546 : ( AIR 1997 SC 1906 ); 9. Radhika Devi v. Bajrangi Singh and others, (1996) 7 SCC 486 : ( AIR 1996 SC 2358 ); 10. Muni Lal v. The Oriental Fire & General Insurance Company Ltd. and another, (1996) 1 SCC 90 : ( AIR 1996 SC 642 ); 11. Bhagwan Kaur w/o Bachan Singh v. Kartar Kaur w/o Bachan Singh and others, (1994) 5 SCC 135 ; 12. Smt. Indu Bala Bose and others v. Manindra Chandra Bose and another, (1982) 1 SCC 20 : ( AIR 1982 SC 133 ); 13. Swapan Kumar and others v. Sanjay Kumar and another, 2002(3) Shim. L.C. 294; 14. Shakuntala Devi v. Savitri Devi and others, AIR 1997 HP 43 ; 15. Gun Parkash and another v. Bhola Nath, AIR 1997 HP 27 ; 16. Balkrishna Das Agarwal v. Smt. Radha Devi and others, AIR 1989 Allahabad 133; and 17. Shri Pratap Narain v. Juggilal Kamlapat Iron and Steel Co. Ltd., AIR 1975 Allahabad 73. 5. In M.B. Ramesh ( AIR 2013 SC 2088 ) (supra), Supreme Court has reiterated the following principles to be applied, in a case where validity of execution of a Will is in question: 1. Shri Pratap Narain v. Juggilal Kamlapat Iron and Steel Co. Ltd., AIR 1975 Allahabad 73. 5. In M.B. Ramesh ( AIR 2013 SC 2088 ) (supra), Supreme Court has reiterated the following principles to be applied, in a case where validity of execution of a Will is in question: 1. Stated generally, a Will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of Wills, one cannot insist on proof with mathematical certainty. 2. Since Section 63 of the Succession Act requires a Will to be attested, it cannot be used as evidence until, as required by Section 63 of the Evidence Act, 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. 3. Unlike other documents, the Will speaks from the death of the testator and therefore the maker of the Will is never available for deposing as to the circumstances in which the Will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last Will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the Will. 4. Cases in which the execution of the Will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the Will. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the Will. That suspicion cannot be removed by the mere assertion of the propounder that the Will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the Will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the Will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator. 5. It is in connection with Wills, the execution of which is surrounded by suspicious circumstance that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last Will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the Will has been validly executed by the testator. 6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter.' 6. The Court only reiterated its long standing principles of law earlier settled by it in Rani Purnima Debi and another v. Kumar Khagendra Narayan Deb and another, AIR 1962 SC 567 ; and Shashi Kumar Banerjee and others v. Subodh Kumar Banerjee (since deceased) and others, AIR 1964 SC 529 (Constitution Bench). 7. The Court only reiterated its long standing principles of law earlier settled by it in Rani Purnima Debi and another v. Kumar Khagendra Narayan Deb and another, AIR 1962 SC 567 ; and Shashi Kumar Banerjee and others v. Subodh Kumar Banerjee (since deceased) and others, AIR 1964 SC 529 (Constitution Bench). 7. In Smt. Indu Bala Bose and others v. Manindra Chandra Bose and another, (1982) 1 SCC 20 : ( AIR 1982 SC 133 ), the Apex Court has held that mere registration of a Will is not proof enough of its valid execution. The onus is on the propounder to remove all doubts and explain the suspicious circumstance, if any, to the fullest satisfaction of the Court. But then it clarified that it is not that any and every circumstance would tantamount to a suspicious circumstance. A circumstance can be said to be suspicious only when it is not normal or is not normally expected of a normal person. However, in Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao and others, (2006) 13 SCC 433 : (AIR 2007 SC 614), the Apex Court held that suspicious circumstance would exist when a doubt is created in connection with the condition of mind of the testator; his signatures on the Will; disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances. In Gopal Swaroop v. Krishna Murari Mangal and others, (2010) 14 SCC 266 : (AIR 2011 SC (Civ) 76), it has been held that there cannot by any mathematical certainty with regard to proof of Will. 8. At the threshold, it be only observed that plaintiffs, in support of their case, except for producing two official witnesses, i.e. Sohan Lal (RW-1), Record Keeper and Amar Singh (RW-2), a Senior Assistant in the Office of the Deputy Commissioner, Bilaspur, application (Ex. PC) for correction of entries, report (Ex. PD) of Kanoongo and copy of Jamabandi bandobast sani (Ex. PE) and tendering revenue record, have not led any evidence whatsoever in support of their case. This evidence only establishes recording of names of the plaintiffs in the revenue record. 9. Based on the pleadings of the parties, trial Court, framed the following issues: 1. Whether plaintiffs are entitled to the relief of permanent prohibitory injunction as prayed for? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. This evidence only establishes recording of names of the plaintiffs in the revenue record. 9. Based on the pleadings of the parties, trial Court, framed the following issues: 1. Whether plaintiffs are entitled to the relief of permanent prohibitory injunction as prayed for? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether plaintiffs have no cause of action and locus standi to file the suit? OPD 4. Whether plaintiffs are estopped to file the suit by their act and conduct? OPD 5. Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD 6. Whether Thohla Singh had executed a valid Will dated 15-8-80, if so its effect? OPD 7. Relief. 10. Except for issue No.2, trial Court decided all issues against the plaintiffs. Lower appellate Court has also affirmed findings of fact with respect to all issues. 11. Having heard learned counsel for the parties, I am of the considered view that no case for interference is made out. No question of law, muchless substantial question of law, arises for consideration in the present appeal. The law now is well settled on all points. 12. Noticeably, parties have been litigating since the year 1990 and all litigations must come to an end at some stage, moreso when no case for interference is made out. 13. It is not in dispute that on the basis of Will dated 15.8.1980 (Ex. DW-3/A), legal heirs of Rattan Singh had got the entries mutated in their name. Subsequently, previous entries in the name of all the legal heirs stand rectified. 14. From the record, it is evidently clear that Thohla Singh was being looked after and actually residing with Rattan Singh since long. All legal heirs were living separately. It is no doubt true that relation amongst all the parties were cordial, but then it has come on record, through the testimony of Ashwani Kumar (DW-1) and Nikka Ram (DW-2), that it was Rattan Singh who took care of Thohla Singh during his life time. Thus breaking a line of succession cannot be said to be unusual and abnormal. 15. Thohla Singh died on 11.10.1980. Testimony of DW-1, scribe Krishan Lal Thakur (DW-3) and the attesting witness Basant Singh (DW-4), does not even remotely suggest that Thohla Singh was suffering from any terminal disease or disability. Thus breaking a line of succession cannot be said to be unusual and abnormal. 15. Thohla Singh died on 11.10.1980. Testimony of DW-1, scribe Krishan Lal Thakur (DW-3) and the attesting witness Basant Singh (DW-4), does not even remotely suggest that Thohla Singh was suffering from any terminal disease or disability. In fact, they have deposed that he was of sound disposing state of mind. For the purpose of execution of the Will, he walked and covered a little distance. Thus, initial burden of proving the health of the testator stands discharged by the beneficiaries. 16. It is argued that since Thohla Singh was 90 years of age, it be presumed that he was ailing and as such beneficiaries ought to have produced on record medical evidence to establish his good health. The submission, not based on any factual matrix or proposition of law, only merits rejection. It is the satisfaction of the Court examining the evidence in totality, which would matter while arriving at a just and plausible opinion with regard to the status of health and soundness of the mind of the testator. Thohla Singh was neither confined to bed nor was he ailing. Old age would not necessarily affect mental faculties of a person. There is no evidence to the contrary. Thohla Singh died on 11.10.1980. But then it was a natural death and not on account of any ailment. 17. Presence of Rattan Singh at the time of execution of the Will is not disputed. The question, which needs to be considered, is as to whether he actually dominated and influenced the decision of Thohla Singh or not? To my mind not so. Plaintiffs have not placed on record any material to establish this fact. On the other hand, from the examination of the testimonies of witnesses, examined by the beneficiaries, it is evidently clear that Thohla Singh had expressed his desire of executing the Will to Krishan Lal Thakur (DW-3), who scribed the same. Then Thohla Singh signed it. DW-3 also signed it. He also records presence of witnesses Basant Singh (DW-4) and Bachan Singh on the spot. They also appended their signatures in presence of Thohla Singh, which version stands duly corroborated by Basant Singh (DW-4). Testimony of these witnesses is absolutely inspiring in confidence and there is nothing, which would render the same to be shaky or unworthy of credence. 18. He also records presence of witnesses Basant Singh (DW-4) and Bachan Singh on the spot. They also appended their signatures in presence of Thohla Singh, which version stands duly corroborated by Basant Singh (DW-4). Testimony of these witnesses is absolutely inspiring in confidence and there is nothing, which would render the same to be shaky or unworthy of credence. 18. It is not that plaintiffs were not given anything by Thohla Singh. During his life time, he had given land not only to his children but also to his wife, Smt. Shankri, who, in fact, transferred it to the plaintiffs. 19. Forgery has not been alleged by the plaintiffs. 20. In the instant case, I do not find that there is any suspicious circumstance, rendering the Will to be illegal, void and thus inoperative. Thohla Singh expressed his desire to execute the Will. Rattan Singh brought the scribe. This fact alone cannot be said to be suspicious. The document was scribed, read over, explained to the testator, who signed the same in the presence of the witnesses, who also signed the same in his presence as also in the presence of each other. 21. There is yet another factor, which weighs in favour of the beneficiaries. Rattan Singh applied for registration of the Will in the year 1982 before the concerned Registrar. Notices were issued to all concerned person and after detailed scrutiny, enquiry, investigation and appreciation of evidence, so led by the parties, including the plaintiffs herein, objections set up by the present plaintiffs with regard to genuineness of the Will, including the factum of Will having been executed under suspicious circumstances, stood rejected, vide order dated 19.4.1990 (Ex. D-1), which was accepted by the parties and has attained finality. 22. No other point urged. 23. The Will stands consciously executed by Thohla Singh, in a sound state of mind, after fully understanding the consequences thereof in the presence of the witnesses, and in the absence of any evidence on the part of plaintiffs to establish their case, the appeal only merits rejection. 24. As such, it cannot be held that findings returned by the Courts below are illegal, perverse and erroneous, warranting interference by this Court. No question of law, muchless substantial question of law, arises for consideration in the present appeal. 24. As such, it cannot be held that findings returned by the Courts below are illegal, perverse and erroneous, warranting interference by this Court. No question of law, muchless substantial question of law, arises for consideration in the present appeal. For all the aforesaid reasons, the appeal is dismissed and disposed of, so also the pending application(s), if any. Appeal dismissed.