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2014 DIGILAW 1188 (HP)

Shiv Dev Singh v. Ashok Kumar

2014-09-03

SANJAY KAROL

body2014
JUDGMENT : Sanjay Karol, J. This is the plaintiff's Regular Second Appeal filed under Section 100 of the Code of Civil Procedure. Plaintiff's Civil Suit No. 137 of 1992, titled as Shri Shiv Dev Singh v. Shri Ashok Kumar & others, stands partly decreed by learned Sub Judge, 1st Class (II), Nurpur, Distt. Kangra, H.P., in terms of judgment and decree dated 30th October, 1999. Aggrieved thereof, defendant filed an appeal which stands allowed in terms of judgment and decree dated 12th August, 2002, passed by learned Addl. District Judge-I, Kangra at Dharamshala, H.P., in Civil Appeal No. 5-N/2000, titled as Ashok Kumar v. Shiv Dev Singh & others. 2. Sh. Bishambhar Singh died on 30.10.1991. Dispute with regard to his succession arose amongst his legal heirs. Son Shiv Dev Singh (plaintiff) filed a suit for declaration against his brother Sh. Ashok Kumar (defendant No. 1), sister Smt. Shreshta Kumari (defendant No. 2) and the legal heirs (defendants No. 3 to 6) of his predeceased second sister Smt. Kushal Kumari. As a legal heir, on the basis of succession, plaintiff claimed ¼th share in the estate of his father Sh. Bishambhar Singh. 3. Defendants resisted the suit, inter alia, on the ground that by virtue of Will dated 27.3.1990 (Ext. D-1) plaintiff's right of inheritance and succession stood extinguished. 4. Based on respective pleadings of the parties, trial Court framed the following issues: 1. Whether the plaintiff is the joint owner in possession of the suit property, as alleged? OPP 2. Whether the suit land was ancestral in the hands of Sh. Bishamber Singh? OPP 3. Whether the parties are governed by Kangra Customary Law, if so, what that custom is? OPP 4. Whether the 'WILL' dated 27.3.1990 is the result of fraud, undue influence and not genuine one, as alleged? OPP 5. Whether the suit is not maintainable as alleged? OPD 6. Whether the plaintiff has no locus standi to file the present suit? OPD 7. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD 8. Whether Shri Bishamber Singh executed a valid 'WILL' dated 27.3.1990 in sound and disposing mind in favour of defendant No. 1? OPD 9. Relief. 5. OPD 6. Whether the plaintiff has no locus standi to file the present suit? OPD 7. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD 8. Whether Shri Bishamber Singh executed a valid 'WILL' dated 27.3.1990 in sound and disposing mind in favour of defendant No. 1? OPD 9. Relief. 5. Based on the evidence on record, trial Court returned findings, holding the property of Bishambhar Singh not to be ancestral and the parties not to be governed by Kangra Customary Law. However trial Court did not find Will (Ext. D-1) to have been proved in accordance with law and as such, held the plaintiff to be joint owner in possession of the suit property. Accordingly plaintiff's suit was decreed in the following terms: "14. Relief: In view of decision on issues No. 2, 3 & 8, the suit of the plaintiff is partly decreed with no order as to costs. The plaintiff alongwith defendants No. 1 to 5 are joint owners in possession of the disputed property. The plaintiff, defendants No. 1 and 2 are owners qua ¼th share each to the estate of Bishamber Singh being sons and daughter and defendants No. 3 to 5 are owners qua rest of the ¼th share being daughters and sons of Kushal Kumari, the daughter of Bishamber Singh, according to Hindu Succession Act. The defendant No. 6, the husband of daughter of Bishamber Singh is not Class-I heir of Bishamber Singh, so he is not entitled for any share qua the estate of Bishamber Singh. Decree sheet be drawn-up accordingly and file after completion be consigned to record room." 6. Defendant Ashok Kumar, beneficiary under the Will (Ext. D-1), filed an appeal in which plaintiff filed cross objections, assailing findings qua issues No. 2, 3 and 4. Vide impugned judgment and decree, lower appellate Court while dismissing the cross objections fully allowed the appeal holding Will (Ext. D-1), set up by the propounder, to have been validly executed and proved, in accordance with law. 7. On 13.12.2002 this appeal was admitted on the following substantial questions of law:- "1. Whether Ext. P-1, copy of the letter purported to have been written by the deceased has been misread and mis-interpreted by the appellate Court below while dismissing the suit of the appellant? 2. Whether the Wills Ext. 7. On 13.12.2002 this appeal was admitted on the following substantial questions of law:- "1. Whether Ext. P-1, copy of the letter purported to have been written by the deceased has been misread and mis-interpreted by the appellate Court below while dismissing the suit of the appellant? 2. Whether the Wills Ext. P-5, D-5 and D-6 were proved as per requirements of Indian Succession Act as well as Indian Evidence Act? Additional substantial question of law which also arose for consideration, was framed on 24.7.2014: Whether Will dated 27.3.1990 (Ext. D-1) is a legal and genuine Will of late Sh. Bishambhar Singh? 8. This court must place on record, with appreciation, the efforts put in by a young counsel Ms. Prem Lata Negi, Advocate, in fairly and effectively assisting the Court in drawing attention of various provisions of the Transfer of Property Act, 1882, Indian Evidence Act, 1872 and Indian Succession Act, 1925, as also various judicial pronouncements rendered by this Court as also Hon'ble the Supreme Court of India while arguing the appeal. 9. Having heard learned counsel for the parties as also perused the record, I am of the considered view that no ground for interference is made out in the present appeal. 10. Significantly qua issues No. 2 and 3 there is no challenge before this Court. 11. It has come on record through the testimony of witnesses so examined on either side that Bishambhar Singh was an educated person. In fact he was a law Graduate and retired as a Dy. S.P. On record parties have placed his various hand written letters, including letter dated 24.7.1983 (Ext. P-1), revealing the pain and agony which he suffered during his life time, through the hands of his sons but more so from plaintiff Shiv Dev Singh. 12. Noticeably prior to execution of Will dated 27.3.1990 (Ext. D-1), Bishambhar Singh executed three separate Wills all dated 18.9.1981 (Ext. P-7, Ext. D-5 and Ext. D-6). Significantly in all these Wills he specifically debarred his son Shiv Dev Singh (plaintiff) from right of inheritance in any property but expressed his desire, will and intention of bequeathing some properties in favour of his second son Ashok Kumar as also legal heirs of his pre-deceased daughter Kushal Kumari. These documents stand proved on record and execution thereof is not in dispute. 13. These documents stand proved on record and execution thereof is not in dispute. 13. Through the oral testimony and more specifically that of Ashok Kumar (DW-1), scribe M.N. Sharma (DW-2) and attesting witness Kahan Chand (DW-3) it stands established and proved on record that Bishambhar Singh executed Will dated 27.3.1990 (Ext. D-1), which was also registered. It has also come on record that at least for a period of seven years prior to his death Bishambhar Singh was being looked after by his son Ashok Kumar. Conduct of his other son Shiv Dev Singh was reprehensive. Letters of the deceased and other evidence is clear on this aspect. Testimony of these witnesses, fully inspiring in confidence, discharges the burden so impressed upon the propounder of the Will. 14. The questions which again need to be considered are as to whether the Will is in consonance with the provisions of Chapter 2 of the Indian Secession Act, 1925 and stands proved in accordance with Sections 67 and 68 of the Indian Evidence Act, 1872? Whether the propounder has proved the Will in accordance with law or not? 15. Will (Ext. D-1) is a typed document executed by the testator and singed by two witnesses namely Kahan Chand and Harbans Singh. The document stands registered with the Sub Registrar, Delhi. Each page of the document is signed not only by the testator but also by the witnesses. This Will categorically records that Ashok Kumar and his family had provided shelter, support, love, care and comfort to the testator in his hour of need. Testator has expressed anguish about the conduct of the plaintiff whom he virtually called a thief. Scribe and the witness have categorically deposed that Will was executed by the testator who was of a sound disposing state of mind. It was executed voluntarily, knowing the contents thereof, and only after reading the same, it was signed and witnesses also signed in the presence of each other and in the presence of the testator who also signed in their presence. That the document was registered also stands proved on record. There is nothing on record to even prima facie show that the testator was suffering from any ailment, impairing his mental faculty shrouding the genuineness and correctness of the document or contents thereof. There is no evidence which can lead to any inference of undue influence, fraud or coercion. 16. That the document was registered also stands proved on record. There is nothing on record to even prima facie show that the testator was suffering from any ailment, impairing his mental faculty shrouding the genuineness and correctness of the document or contents thereof. There is no evidence which can lead to any inference of undue influence, fraud or coercion. 16. Thus findings returned by the lower appellate Court, with regard to valid execution of the Will, so proved in accordance with law, as returned in paragraphs No. 19 to 23 of the judgment cannot be said to be perverse, illegal, erroneous or not borne out from the record. 17. The propounder of the Will, rightly discharged the onus and burden of proving that the contents of the Will were read out and in the presence of the attesting witnesses, the testator appended his signatures when also the witnesses signed the same. In the instant case no suspicious circumstance emerges from the record, raising any doubt with regard to execution of the Will or contents thereof. The intention of the testator, in ousting the plaintiff from inheritance, is borne out not only from the Will dated 27.3.1990 (Ext. D-1) but also prior Wills dated 18.9.1981 (Ext. P-7, D-5 and D-6) and letter (Ext. P-1). Continuously testator had desired of disinheriting the plaintiff from his estate. With the burden of proving Will (Ext. D-1) having been discharged by the propounder, earlier Wills would automatically stand superseded and become redundant [See: Mahesh Kumar (dead) by LRs v. Vinod Kumar and others, (2012) 4 SCC 387 ]. 18. Hence, in my considered view, there is no merit in the present appeal and the same is accordingly dismissed. It cannot be said that the judgment passed by the lower appellate Court is based on incorrect and incomplete appreciation of facts and material placed on record by the parties or that the same is perverse which has resulted into miscarriage of justice. Substantial questions of law are answered accordingly. Pending applications, if any, also stand disposed of accordingly. Appeal Dismissed.