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2014 DIGILAW 1288 (HP)

Anant Ram v. Bhup Chand

2014-09-17

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. The plaintiff is the appellant and has come up in appeal against concurrent findings recorded against him by the learned Courts below. 2. The facts, in brief, are that the plaintiff/appellant filed a suit bearing No. 134 of 1997 in the Court of Ld. Sub Judge 1st Class, Sarkaghat with the assertions that land comprised in Khata Khatauni No. 56/137 min Khasra Nos. 246 to 250, 270/1 kita 6 measuring 0-31-10 hectare situate in village Bera, Illaqua Bhadrota, Tehsil Sarkaghat, District Mandi, H.P. (hereinafter referred to as the 'suit land'). The suit land is recorded in the ownership and possession of one Smt. Malti deceased and a note with red ink in the remarks column on the ground that the suit land has been treated in the name of the respondents as per jamabandi in respect of the suit land in the year 1991-92. He further pleaded that deceased Malti executed registered Will dated 30.8.1971 in respect of the suit property in favour of the appellant. The respondent Bhup Chand earlier filed a civil suit for declaration to the effect that Will executed by the deceased Smt. Malti be declared null and void with the further prayer that possession of the suit land be delivered in favour of the respondents. However, the suit was finally dismissed by learned Sub Judge 1st Class, Sarkaghat on 16.8.1978. Smt. Malti during her life time, remained in exclusive possession of the suit land and after her death, appellant is in exclusive possession of the suit land by virtue of the registered Will executed in his favour by late Smt. Malti. The respondent despite knowledge, suppressed even facts from the knowledge of the revenue authorities and in collusion with the revenue staff, they got mutation qua the suit land attested in their favour. The appellant was neither informed about the fact of mutation nor he was given an opportunity of being heard. The respondents without any right, title or interest in the suit land taking undue advantage of the wrong mutation, they got started causing unnecessary interference over the suit land by forcibly ploughing the same. The appellant was neither informed about the fact of mutation nor he was given an opportunity of being heard. The respondents without any right, title or interest in the suit land taking undue advantage of the wrong mutation, they got started causing unnecessary interference over the suit land by forcibly ploughing the same. They also destroyed the crop of the appellant when they were asked to desist from illegal activities, they did not admit the claim of the appellant and therefore, the appellant is entitled for decree of permanent prohibitory injunction against the respondents and in the alternative, appellant also sought relief of possession in case during the pendency of the suit, the respondents take forcible possession of the suit land. 3. The respondents contested the suit by filing written statement and thereby raising preliminary objections qua maintainability, cause of action, proper valuation and on merits, they denied the facts pleaded by the appellant and further pleaded that the mutation in respect of the suit land in their favour has been rightly attested. Deceased Smt. Malti being their step mother, they had every right to inherit the same. They also denied that deceased Smt. Malti executed any Will and document produced by the appellant is fictitious, false and illegal which was never executed by Smt. Malti. They also claimed that the entry in the revenue papers is correct. They being in possession, there arise no question of any interference in the possession of the appellant. 4. In the replication filed by the plaintiff/appellant, the averments contained in the plaint were reiterated and the assertions made in the written statement by the defendants were denied. 5. On 17.11.1997 the learned trial Court framed the following issues: 1. Whether deceased Malti has executed a valid Will of her property in favour of plaintiff? OPP 2. Whether the plaintiff is owner in possession of the suit land? OPP 3. Whether the defendants interfere in the ownership and possession of the plaintiff over the suit land? OPP 4. Whether the suit is not maintainable? OPD 5. Whether there is no cause of action to file the present suit? OPD 6. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD 7. Whether the Will executed by deceased Malti is fictitious, false and illegal document? OPD 8. Relief. 6. OPP 4. Whether the suit is not maintainable? OPD 5. Whether there is no cause of action to file the present suit? OPD 6. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD 7. Whether the Will executed by deceased Malti is fictitious, false and illegal document? OPD 8. Relief. 6. The learned trial Court vide judgment and decree dated 21.8.2000 dismissed the suit of the plaintiff. Aggrieved by the judgment and decree passed by the learned trial Court, the plaintiff/appellant filed an appeal before the learned lower Appellate Court, who too vide judgment and decree dated 2.9.2002 has been pleased to dismiss the same. 7. Aggrieved by the judgments and decrees passed by the learned Courts below, the appellant/plaintiff is before this Court by way of present regular second appeal. 8. On 5.12.2002, the appeal was admitted on the following substantial questions of law: 1. Whether the embargo u/s 68 of the Indian Evidence Act and Sections 59 and 63 of the Indian Registration Act had been discharged by the propounder of the Will and the same was shown to be duly executed and whether it was proper for the Courts not to place reliance on the same, moreso, when there was a certificate of Sub Registrar regarding the animus attestendi of the Testatrix at the time of the execution of the Registration thereof and whether the registered document had the presumption of due execution and registration in accordance with law and conjectures and inferences to the contrary could be made by the Courts below. 2. Whether an authenticating authority can be treated as an attesting witness where the attesting witness falsely deposes or colludes with the opposite party and the Sub Registrar can be treated as an attesting witness along with scribe for the purpose of proof of due execution of Will? 9. I have heard learned counsel for the parties and have also gone through the records carefully. 10. Since both the substantial questions of law are inter-related and inter-connected, therefore, I proceed to dispose of the same through a common reasoning. 11. Mr. Sanjeev Kuthiala, learned counsel for the appellant has vehemently contended that the learned Courts below have completely misread and mis-appreciated the oral and documentary evidence available on record, especially the statements of PW-2 Anant Ram, PW-6 Sh. 11. Mr. Sanjeev Kuthiala, learned counsel for the appellant has vehemently contended that the learned Courts below have completely misread and mis-appreciated the oral and documentary evidence available on record, especially the statements of PW-2 Anant Ram, PW-6 Sh. Yudupati (Sub Registrar), PW-7 Shiv Ram (document writer), PW-8 Diwan Chand (attesting witness) Ex. PW-5/A Registered Will, DW-1 Kalan Devi as also the pleadings of the parties which have resulted in vitiating the findings. He has further contended that the learned Courts below have failed to consider the fact that the execution of the Will stood duly proved from the statements of one of the attesting witness namely PW-8, the Document Writer scriber i.e. PW-7 as also the fact that the same was registered and the Sub Registrar had been examined as PW-6 regarding the factum of registration of the same being executed by the testator. 12. No doubt, the Sub Registrar, who attest the Will in certain given facts and circumstances can be considered to be an attesting witness. Here, the Sub Registrar had attested the document in discharge of his statutory duty under the provisions of the Indian Registration Act, 1908 and not for the purpose of attesting the document or certifying that he had received from the executant a personal acknowledgement of his signature and therefore, cannot be held to be an attesting witness. 13. The evidence led in this case proves beyond any doubt, that the Registrar while signing the document had acted strictly in discharge of his statutory duty and there is no evidence adduced that the Registering Officer had signed the document with an intention of attesting it or the Registering Officer had signed it in the presence of the executant. The Registrar may fulfill the character of an attesting witness if enter into the witness box as required u/s 68 of the Evidence Act, he proves by his testimony the execution of the document by deposing to have witnessed himself the proceedings as contemplated by Section 63 of the Succession Act or else the certificate of registration u/s 60 of the Registration Act only raises a presumption u/s 114(e) of the Evidence Act, that the Registrar has regularly performed his duty and, therefore, the facts spelled out by the endorsement made under Sections 58 and 59 of the Registration Act, may be presumed to be correct without formal proof thereof. The Registrar can be treated to have attested a Will if his signature or mark appears on the document akin to the one placed by the attesting witness and he has seen the testator signed or affixed mark to the Will or has received from the testator a personal acknowledgement of his signature. In short, while attesting the document, the Registrar should have attested the signature of the testator in the manner contemplated by Section 63(c) of the Succession Act. 14. As there is total lack of evidence to this effect so as to meet with the requirement of law, the learned Courts below have committed no error in dismissing the claim of the appellant/plaintiff. The substantial questions of law are answered accordingly. 15. In view of above discussion, I find no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their own costs.