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2014 DIGILAW 1287 (HP)

Durgi Devi v. Krishan Chand

2014-09-17

SANJAY KAROL

body2014
JUDGMENT : Sanjay Karol, J. Appellants/plaintiffs have filed these regular second appeals u/s 100 of the Code of Civil Procedure. Since both these appeals arise of common judgment, with same set of evidence, as such, are being disposed of together. Concurrent findings of fact have been challenged by the plaintiffs. 2. Plaintiffs Durgi Devi, Kamal Kumar and Meena Kumari, as legal heirs of Jagat Ram, filed a suit for declaration and possession of the suit land against defendants Krishan Chand and Tilak Raj. Suit land is situate in Tehsil Sadar, Distt. Mandi, H.P. Plaintiff No. 1 claimed that her husband Jagat Ram @ Kishan, father of plaintiffs No. 2 and 3, was born through Smt. Rameshwaru Devi and as such, in law, was entitled to succeed her estate. It is not in dispute that Jagat Ram expired on 20.6.1992 and on the basis of Will (Ext. DA), alleged executed by Smt. Ramashwaru Devi in favour of the defendants, land stands mutated in their names. According to the plaintiffs, Smt. Ramashwaru Devi was physically invalid and could not have executed the Will (Ext. DA). 3. Since there were two separate parcels of land, two separate suits were filed in which, based on respective pleadings of the parties, trial Court framed the following issues:- Issues framed in Civil Suit No. 177/93(265/99/93): 1. Whether the mutation No. 769 dated 23.6.92 has been wrongly attested in favour of the defendants and is liable to be corrected as alleged? OPP 2. Whether the plaintiffs are entitled to the relief of injunction as prayed? OPP 3. Whether late Rameshwaru Devi executed a valid will in favour of the defendants, as alleged? OPD 4. Whether the plaintiffs have no locus standi to file the present suit? OPD 5. Whether the plaintiffs have no cause of action? OPD 6. Whether the suit is not maintainable in the present form? OPD 7. Whether the suit is within limitation? OPD 8. Whether the suit is bad for non joinder and mis joinder of necessary parties? OPD 9. Whether the suit has been properly valued for the purpose of court fee and jurisdiction? OPD 10. Relief. Issues framed in Civil Suit No. 236/1993: 1. Whether the mutation No. 218 dated 11.1.1985 has been wrongly attested in favour of the defendants and is liable to be corrected as alleged? OPP 2. OPD 9. Whether the suit has been properly valued for the purpose of court fee and jurisdiction? OPD 10. Relief. Issues framed in Civil Suit No. 236/1993: 1. Whether the mutation No. 218 dated 11.1.1985 has been wrongly attested in favour of the defendants and is liable to be corrected as alleged? OPP 2. Whether the plaintiffs are entitled to the relief of injunction as prayed? OPP 3. Whether late Rameshwari Devi executed a valid will in favour of the defendants, as alleged? OPD 4. Whether the plaintiffs have no locus standi to file the present suit? OPD 5. Whether the plaintiffs have no cause of action? OPD 6. Whether the suit is not maintainable in the present form? OPD 7. Whether the suit is within limitation? OPD 8. Whether the suit is bad for non joinder and mis joinder of necessary parties? OPD 9. Whether the suit has been properly valued for the purpose of court fee and jurisdiction? OPD 10. Relief. 4. Appreciating the evidence so led by the parties, trial Court vide judgment and decree dated 11.7.2000, passed in Civil Suit No. 265/99/93, titled as Smt. Durgi Devi & others vs. Krishan Chand & another, dismissed both the suits filed by the plaintiffs. 5. Findings of fact, judgment and decree stand affirmed by the lower appellate Court vide common judgment and decree dated 13.3.2003, passed in Civil Appeal No. 80 of 2000, titled as Smt. Durgi Devi & others vs. Krishan Chand & another as also Civil Appeal No. 81 of 2000, titled as Smt. Durgi Devi & others vs. Krishan chand & another. Hence the present appeals. 6. Present appeals stand admitted on the following similar substantial question of law:- 1. Whether the findings arrived at by the learned trial court and first Appellate Court regarding due execution of the Will are dehors the evidence on record and based on misreading of the evidence? 7. 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 appeals. Findings returned by the Courts below cannot be said to be dehors the evidence on record or based on mis-appreciation or mis-reading of evidence. 8. Significantly plaintiffs could not prove that Jagat Ram was born through Smt. Rameshwaru Devi. Documents of revenue record (Ext. Findings returned by the Courts below cannot be said to be dehors the evidence on record or based on mis-appreciation or mis-reading of evidence. 8. Significantly plaintiffs could not prove that Jagat Ram was born through Smt. Rameshwaru Devi. Documents of revenue record (Ext. PB and PC) as also Driving Licence (Ext. PA) does not establish such fact. Also oral evidence of Durgi Devi (PW-2) and Karam Singh (PW-3) is of no support to the plaintiffs. To the contrary, by proving the revenue record i.e. jamabandi for the year 1949-50 (Ext. DA-1), defendants have been able to establish that Sh. Shyama husband of Smt. Rameshwaru Devi died issueless, hence her name, as sole legal heir, was entered into the revenue records. Mutation was also attested in this regard. Plaintiffs also could not prove that during the life time of Smt. Rameshwaru Devi, they were residing with her as daughter-in-law and/or grand children. Thus plaintiffs have no right, title or interest in the suit property. 9. Will (Ext. DA) executed by Rameshwaru Devi in the name of defendants, who acted thereupon, and got the land mutated in their names, stands proved through the testimonies of scribe Devi Ram (DW-3) and attesting witness Hira (DW-4). These witnesses unequivocally have deposed about the mental state of the testator to be of sound disposing state of mind, as also execution and attestation of the document after fully understanding the contents thereof. Execution is in the presence of the witnesses. 10. The Apex Court in M.L. Abdul Jabbar Sahib versus H. Venkata Sastri and Sons and others, AIR 1969 Supreme Court 1147 has held as under:- "...It is to be noticed that the word "attested", the thing to be defined, occurs as part of the definition itself. To attest is to bear witness to a fact. Briefly put, the essential conditions of a valid attestation u/s 3 are: (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgement of his signature; (2) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness." (Emphasis supplied) 11. The Apex Court in N. Kamalam (Dead) and another versus Ayyasamy and another, (2001) 7 SCC 503 has held as under:- "The Latin expressions onus probandi and animo attestandi are the two basic features in the matter of the civil court's exercise of testamentary jurisdiction. Whereas onus probandi lies in every case upon the party propounding a will, the expression animo attestandi means and implies animus to attest: it means intent to attest. The attesting witness must subscribe to the intent that the subscription of the signature made stands by way of a complete attestation of the will and the evidence is admissible to show whether such was the intention or not." (Emphasis supplied) 12. The Apex Court in Janki Narayan Bhoir Vs. Narayan Namdeo Kadam, (2003) 2 SCC 91 , has held has under:- "The requirement of due execution of a will u/s 63(c) of the Succession Act is its attestation by two or more witnesses, which is mandatory. It flows from this section that if there be an attesting witness alive, capable of giving evidence and subject to the process of the Court, he has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the will has got to prove that the will was duly and validly executed. That cannot be done by simply prove that the signature on the will was that of the testator but it must also be proved that attestations were also made properly as required by clause (c) of Section 63 of the Succession Act. It is true that Section 68 of the Evidence Act does not say that both or all the attesting witnesses must be examined. It is true that Section 68 of the Evidence Act does not say that both or all the attesting witnesses must be examined. In a way, Section 68 gives a concession to those who want to prove and establish a will in a court of law by examining at least one attesting witness even though the will has to be attested at least by two witnesses mandatorily u/s 63 of the Succession Act. But what is significant and to be noted is that one attesting witness examined should be in a position to prove the execution of a will. To put in other words, if one attesting witness can prove execution of the will in terms of clause (c) of Section 63 viz. attestation by two attesting witnesses in the manner contemplated therein, the examination of the other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there was due execution of the will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the will by the other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required u/s 63 of the Succession Act. Where one attesting witness examined to prove the will u/s 68 of the Evidence Act fails to prove the due execution of the will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence act." "Section 71 of the Evidence Act is in the nature of a safeguard to the mandatory provisions of Section 68 of the Evidence Act, to meet a situation where it is not possible to prove the execution of the will be calling the attesting witnesses, though alive. Section 71 is permissive and an enabling section permitting a party to lead other evidence in certain circumstances. Section 71 is permissive and an enabling section permitting a party to lead other evidence in certain circumstances. But Section 6 is not merely an enabling section. It lays down the necessary requirements, which the court has to observe before holding that a document is proved. Section 71is meant to lend assistance and come to the rescue of a party who had done his best, but driven to a state of helplessness and impossibility, cannot be let down without any other means of proving due execution buy "other evidence" as well. At the same time Section 71 cannot be read so as to absolve a party of his obligation under Section68, Evidence Act read with Section 63 of the Succession Act and liberally allow him, at his will or choice to make available or not a necessary witness otherwise available and amenable to the jurisdiction of the court concerned and confer a premium upon his omission or lapse, to enable him to give a go-by to the mandate of law relating to the proof of execution of a will. Section 71 of the Evidence Act can only be requisitioned when the attesting witnesses who have been called failed to prove the execution of the will by reason of either denying their own signatures or denying the signature of the testator or having no recollection as to the execution of the document. Section 71 has no application to a case where one attesting witness, who alone had been summoned, has failed to prove the execution of the will and other attesting witnesses though are available to prove the execution of the same, for reasons best known, have not been summoned before the court. In a case where an attesting witness examined fails to prove the due execution of will as required under clause (c) of Section 63 of the Succession Act, it cannot be said that the will is proved as per Section 68 of the Evidence Act, It cannot be said that if one attesting witness denies or does not recollect the execution of the document, the execution of will can be proved by other evidence dispensing with the evidence of other attesting witness though available to be examined to prove the execution of the will. Yet another reason as to why other available attesting witnesses should be called when the one attesting witness examined fails to prove due execution of the will is to avert the claim of drawing adverse inference u/s 114 Illustration(g) of the Evidence Act. Placing the best possible evidence, in the given circumstances, before the court for consideration, is one of the cardinal principles of the Indian Evidence Act." (Emphasis supplied) 13. The aforesaid position stands reiterated in Bhagat Ram and Another Vs. Suresh and Others, (2003) 12 SCC 35 ; Benga Behera and Another Vs. Braja Kishore Nanda and Others, (2007) 9 SCC 728 ; and S.R. Srinivasa and Others Vs. S. Padmavathamma, (2010) 4 SCR 981 . 14. The essential ingredients so required under law, stands fully complied with. Not only that defendants also acted upon the Will. As such, propounders of the Will have established valid execution thereof as beneficiaries, in accordance with law. Consequently, no reason or ground sufficient enough, for interference with concurrent findings of fact recorded by the Courts below is made out. It cannot be said that the judgments passed by the Courts below are 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. As such, the substantial question of law is answered accordingly and the present appeals are dismissed. Pending applications, if any, also stands disposed of accordingly.