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2014 DIGILAW 1985 (HP)

Dashoda alias Yashoda Devi v. Ramesh

2014-12-24

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. Plaintiffs Nos. 1 and 2 Shri Ram Singh and Smt. Dashoda alias Yashoda Devi are in second appeal before this Court. They are aggrieved by the judgment and decree dated 5.5.2003, passed by learned District Judge, Solan in Civil Appeal No. 40-S/13 of 2001, whereby the judgment and decree passed by learned Sub Judge, 1st Class, Arki, dated 29.6.2001 in Civil Suit No. 192/1 of 1994, has been affirmed and the appeal dismissed. 2. The challenge to the impugned judgment and decree is on the grounds, inter alia, that both Courts below have committed material illegality and irregularity while returning findings on issues No.4 and 5 in ignorance of cogent and reliable evidence comprising oral as well as documentary available on record. Both Courts allegedly erred while recording the findings that the Will Ext.DW1/A is a valid document duly executed by Shri Geeta Ram in violation of the provisions contained under Section 63 of the Indian Succession Act. In this regard, it is pointed out that one of the witnesses Shri Shiv Ram is not an attesting witness and rather he has signed the Will in the capacity of an identifier as he was Numberdar at the relevant time. The signature of the scribe on the Will is also in the capacity of a document writer and not as an attesting witness. Since the Will was signed only by one of the attesting witnesses, therefore, it could have not been held as a legal and valid document. Also that in the absence of the pleadings and the evidence, it cannot be said that Shri Shiv Ram DW4 had animus to sign the Will in the capacity of a marginal witness. The plaintiffs, except for plaintiff No.1 Ram Singh, had not stepped into the witness box and as such an adverse inference should have been drawn against them. The Courts below allegedly got influenced merely by the fact that the Will Ext.DW1/A was a registered document. Affidavit Ext.PW2/A of testator Shri Geeta Ram that he had cordial relations with the plaintiffs has erroneously been ignored. On the other hand, the defendants have miserably failed to prove that it is they alone who were rendering services to the deceased during his life time. This aspect of the matter has not been appreciated. Affidavit Ext.PW2/A of testator Shri Geeta Ram that he had cordial relations with the plaintiffs has erroneously been ignored. On the other hand, the defendants have miserably failed to prove that it is they alone who were rendering services to the deceased during his life time. This aspect of the matter has not been appreciated. The factum of the suit land being in possession of plaintiff No.1 in the capacity of a tenant duly proved on record has also not been appreciated in its right perspective and recorded the findings to the contrary which has resulted in miscarriage of justice to the appellants-plaintiffs. 3. Appeal has been admitted on the following substantial questions of law: 1. Whether the Will in question has not been duly executed and attested in accordance with law? 4. It is thus seen that the only legal question, which needs adjudication in the present lis is as to whether the Will Ext.DW1/A has been executed in accordance with law or not. The adjudication thereof takes us to the given facts and circumstances of the case and also the evidence available on record. 5. The dispute pertains to the inheritance of the estate of deceased Geeta Ram. He was exclusive owner in possession of land measuring 6 Biswas, bearing Khasra No.54 and co-owner of land measuring 37 bighas 14 biswas bearing Khasra Nos.49, 52, 56, 57, 62, 67, 69, 72 and 81 to the extent of ½ share, co-owner-cummortgagor of land measuring 1 Bigha 6 Biswas, bearing Khasra Nos.74 and 82 to the extent of ½ share and coowner of land measuring 5 Bighas 14 Biswas, bearing Khasra No.78 to the extent of ?th share, situated in village Rehawan, Pargana Sendhurath, Tehsil Arki District Solan. He had two wives. Plaintiffs No.2 and 3 were born to him out of his wedlock with his previous wife. On her death, he married with defendant No.5 Smt. Mahantu Devi. Kanshi Ram was real brother of deceased Geeta Ram. Defendants No.1 to 4 are sons of said Shri Kanshi Ram. Defendant No.5 Mahantu Devi had cordial relations with Kanshi Ram. Defendants No.1 to 4 taking undue advantage of the relations of defendant No.5 with their father, managed to execute the Will by deceased Geeta Ram qua the suit land on 26.4.1994, in their favour. Defendants No.1 to 4 are sons of said Shri Kanshi Ram. Defendant No.5 Mahantu Devi had cordial relations with Kanshi Ram. Defendants No.1 to 4 taking undue advantage of the relations of defendant No.5 with their father, managed to execute the Will by deceased Geeta Ram qua the suit land on 26.4.1994, in their favour. It is on 31.7.1994, defendants No.1 to 4 threatened the plaintiffs to take over the possession of the suit land forcibly on the basis of Will in question. 6. While according to the plaintiffs, the Will is a forged and fictitious document having not been executed by deceased Geeta Ram in favour of defendants No.1 to 4 and that the suit land was in possession of plaintiff No.1 in the capacity of tenant and hence, the defendants have nothing to do therewith, at the same time, the defendants claimed that it is they who used to look after and maintain deceased Geeta Ram during his life time and as such, he being happy and satisfied with the services rendered by them, executed the Will in their favour voluntarily while in a sound disposing mind. According to them, the execution of the Will has been witnessed by two witnesses and hence, is a legally and validly executed document. 7. On such pleading of the parties, learned trial Court has framed the following issues: 1. Whether the plaintiffs are entitled for the relief of permanent prohibitory injunction, as claimed? OPP. 2. Whether the plaintiffs are entitled for the relief of declaration, as alleged? OPP. 3. Whether the plaintiff was tenant of deceased Geeta Ram in the suit land, as claimed? OPP 4. Whether late Shri Geeta Ram had executed a legal and valid Will on 224.4.1994? OPD 5. Whether the will is result of misrepresentation, fraud etc.? OPD 6. Whether the suit is not maintainable? OPD 7. Whether the suit is bad for misdescription of the parties? OPD 8. Whether the plaintiffs have no locusstandi to file the present suit? OPD 9. Whether the plaintiffs are estopped to file the present suit by their own acts and conduct and acquiescences? OPD 10. Whether the suit is bad for the nonjoinder of necessary parties? OPD 11. Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPD 11A. OPD 9. Whether the plaintiffs are estopped to file the present suit by their own acts and conduct and acquiescences? OPD 10. Whether the suit is bad for the nonjoinder of necessary parties? OPD 11. Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPD 11A. Whether the plaintiffs are entitled to the relief of possession by way of alternative relief as alleged? OPP. 12. Relief. 8. The parties, when put to trial, have produced oral as well as documentary evidence, in support of their respective case. S/Shri Krishan Chand and Sushil Kumar, PW-1 and PW-2, respectively, have examined themselves to prove the factum of transfer of a gun by Geeta Ram in the name of plaintiff No.1, who himself has stepped into the witness box as PW-3 in support of the case, as set out in the plaint. The plaintiffs have also examined Mohan Lal PW-4 to prove that it is they who used to cultivate the suit land and maintain deceased Geeta Ram during his life time. 9. In rebuttal, plaintiff No.1 has again stepped into the witness box and also examined one more witness PW-5 Dina Nath. They also placed reliance on the affidavit Ext. DW1/A of deceased Geeta Ram. 10. On the other hand, Shri Kamlesh Kumar, Document Writer has stepped into the witness box as DW-1 and proved Will Ext.DW1/A. The attesting witnesses S/Shri Prem Lal and Shiv Ram have also stepped into the witness box as DW-3 and DW-4 respectively. Defendant No.1 Shri Chet Ram while in the witness box as DW-2 has also supported the entire case as set out in the written statement. 11. Learned trial Judge, while deciding issues No.4 and 5 in favour of defendants has arrived at a conclusion that the defendants have successfully pleaded and proved the execution of Will Ext.DW1/A by Shri Geeta Ram in a sound disposing mind in presence of the witnesses. This document, therefore, has been held to be legal and valid. The suit, therefore, was dismissed. 12. Though the judgment and decree passed by learned trial Court was assailed in learned lower appellate Court, however, unsuccessfully, as the appeal has been dismissed vide the judgment and decree, which is under challenge in the present appeal. 13. This document, therefore, has been held to be legal and valid. The suit, therefore, was dismissed. 12. Though the judgment and decree passed by learned trial Court was assailed in learned lower appellate Court, however, unsuccessfully, as the appeal has been dismissed vide the judgment and decree, which is under challenge in the present appeal. 13. Shri Bhupender Gupta, learned Senior Advocate has emphasised mainly that the Will in question is not at all proved, as according to him, even if it is presumed to be executed by deceased Geeta Ram, the execution thereof has been witnessed only by one marginal witness, i.e. DW-3 Prem Lal, as according to Mr. Gupta, the other witness DW-4 Shiv Ram has signed the will in the capacity of an identifier. There is no clarification given by the scribe DW-1 Kamlesh Kumar that words "Shinakhat Karta, (identifier) below the signature of Shiv Ram came to be recorded by way of an inadvertent mistake. As regards the scribe DW-1 Kamlesh Kumar, it is pointed out that the scribe may be a witness; however, there must be animus to append his signature on the Will like a marginal witness. The scribe, according to Mr. Gupta, has not signed the Will with an intention to witness the execution thereof in the capacity of a marginal witness. Since Shiv Ram belongs to a distant place, his testimony cannot be relied upon. 14. On the other hand, Shri G.D. Verma, learned Senior Advocate, while repelling the contentions raised on behalf of the appellants-plaintiffs has strenuously contended that without there being any evidence available on record, it cannot be said that the plaintiff was in possession of the suit land in the capacity of a tenant. Plaintiff No.1, according to Mr. Verma, has no locus-standi to assail the legality and validity of the Will as he had nothing to do with the property belonging to Shri Geeta Ram. It is only the daughters of deceased Geeta Ram, plaintiffs No.2 and 3 alone, who had the cause of action and locus-standi, if any, to have challenged the same. It has also been pointed out that the validity of a Will is not a question of law, but facts. The genuineness and authenticity of the Will, in question, cannot be doubted on the ground that only one marginal witness is associated or examined. According to Mr. It has also been pointed out that the validity of a Will is not a question of law, but facts. The genuineness and authenticity of the Will, in question, cannot be doubted on the ground that only one marginal witness is associated or examined. According to Mr. Verma, otherwise also, the concurrent findings recorded by both Courts below on appreciation of the pleadings and evidence available on record, cannot be interfered with in a second appeal. 15. Thus, the only legal question, which needs adjudication in the present lis is as to whether the Will Ext.DW1/A has not been executed and attested in accordance with law. The pre-requisites for execution of a legal and valid Will find mention in Section 63 of the Indian Succession Act, which reads as follows: "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 of 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 acknowledgement 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." 16. Another legal provision to constitute the execution of a legal and valid Will is enshrined under Section 68 of the Evidence Act, which reads as follows: 68. Another legal provision to constitute the execution of a legal and valid Will is enshrined under Section 68 of the Evidence Act, which reads as follows: 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 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." 17. Besides, Section 30 of the Hindu Succession Act provides that any Hindu may dispose of by Will or other testamentary disposition any property, which is capable of being so disposed of by him in accordance with the provision of the Indian Succession Act or any other law for the time being in force and applicable to Hindus. 18. Now, if the execution and attestation of the Will in question is seen in the light of the above legal proposition and the evidence available on record, the defendants have examined the scribe of the Will DW-1 Kamlesh Kumar. As per his version, the Will was reduced into writing at the instance of the testator deceased Geeta Ram. The same was read over and explained to him in vernacular. He, on hearing the contents of the Will and admitting the same to be correct, thumb marked the same. The marginal witnesses DW-4 Shiv Ram, Numberdar and DW-3 Prem Lal were also present. They both also signed the Will after going through the contents thereof. Shri Geeta Ram, the testator had thumb-marked the Will in the presence of the witnesses, who had also put their signatures on the Will in the presence of said Shri Geeta Ram. Although DW-1 Kamlesh Kumar has been cross-examined, however, in sundry and not qua the aspect that the testator was seen by the witnesses while putting his thumb mark on the Will and he saw the witnesses putting their signatures on this document. 19. Although DW-1 Kamlesh Kumar has been cross-examined, however, in sundry and not qua the aspect that the testator was seen by the witnesses while putting his thumb mark on the Will and he saw the witnesses putting their signatures on this document. 19. DW-3 Prem Lal one of the marginal witnesses also tells us that he had seen Geeta Ram while putting his thumb impression on the Will who, according to this witness, was illiterate. As per his further version, the contents of the Will were read over and explained to him and that he had signed the same in the presence of Geeta Ram and Shiv Ram, Numberdar. He has also identified his signature and also that of Shiv Ram on the Will, in question. He further tells us that the Will thereafter was produced by Shri Geeta Ram in his presence and that of Shiv Ram, Numberdar before the Tehsildar for attestation by informing the Tehsildar and he had executed the Will in favour of the children of his brother. On this the Tehsildar attested the Will. He signed the Will as a witness before the Tehsildar at point "F" encircled red. He also identified the thumb mark of Geeta Ram at point "G" encircled red on the Will which he had put on the Will in the presence of Tehsildar. He has also identified the signatures of Shiv Ram, Numberdar at point "H" encircled red, which he had put on the Will before the Tehsildar. 20. DW-3 Prem Lal has also been subjected to lengthy cross-examination, however, again in sundry and not qua the relevant aspect, i.e. mode and manner in which the Will was executed and produced before Tehsildar, Arki, for attestation. 21. Shiv Ram has stepped into the witness box as DW-4. According to him also, the Will was reduced into writing at the instance of Geeta Ram, who had put his thumb impression on the Will, after admitting the contents thereof to be true and correct in their presence and he as well as DW-3 Prem Lal both had seen him while putting his thumb impression thereon. Similarly, Geeta Ram had also seen them putting their signatures on the Will. As per his version also, it was about 3 p.m. when the Will was produced for attestation before the Tehsildar by Geeta Ram. Similarly, Geeta Ram had also seen them putting their signatures on the Will. As per his version also, it was about 3 p.m. when the Will was produced for attestation before the Tehsildar by Geeta Ram. The Tehsildar had enquired from Geeta Ram as to what he was doing to which he answered that he was executing a Will in favour of his nephews. He has identified Geeta Ram's thumb impression, which he had put on the Will in the presence of Tehsildar and also his signatures as well as that of DW3 Prem Lal. 22. The Will in question is Ext.DW1/A. The original thereof is also available on record. The same has been thumb marked by the testator on each and every page and also before the Tehsildar. 23. Although the plaintiffs claim that deceased Geeta Ram used to put his signature and not thumb mark, yet plaintiff No.1 Ram Singh while in the witness box as PW-3 has admitted that Geeta Ram was illiterate. If coming to affidavit Ext.PW2/A, the same though bears signature allegedly that of Geeta Ram, however, no cogent and reliable evidence has come on record that these are the signatures of Geeta Ram alone. 24. True it is that plaintiffs No.2 and 3 are the daughters of Geeta Ram from his previous wife and it is they who alone could have inherited his estate and not the plaintiff No.1, however, plaintiffs No.1 and 2 have not opted for stepping into the witness box and it is plaintiff No.1 who has appeared as PW-1. Even one of the plaintiffs, i.e. plaintiff No.3 Smt. Ajudhia Devi has not opted to file any appeal in this Court, as she is proforma respondent herein. Moreover, had the exclusion of plaintiffs No.2 and 3 from the suit property by way of Will Ext.DW1/A been not correct or if the Will was result of fraud, mis-representation or shrouded by suspicious circumstances, it is the plaintiffs No.2 and 3, who would have entered into the witness box and deposed so on oath. Non appearance of the said plaintiffs as witnesses, leads to the only conclusion that Will Ext.DW1/A was the last will of deceased Geeta Ram and executed by him in favour of his nephews, the defendants No.1 to 4. 25. Non appearance of the said plaintiffs as witnesses, leads to the only conclusion that Will Ext.DW1/A was the last will of deceased Geeta Ram and executed by him in favour of his nephews, the defendants No.1 to 4. 25. Interestingly, deceased Geeta Ram as per own admission of plaintiff No.1 Ram Singh was hale and hearty at the time of his death and according to him, he died due to stomach ache. Though he claims that Geeta Ram was not in sound disposing mind, however, he has not produced any evidence in this regard. 26. As regards the plea that it is plaintiff No.1 who had been cultivating the suit land for the last 25-26 years, the same has no grain of truth and rather palpably false. 27. Therefore, in the given facts and circumstances of this case and also the evidence available on record as well as the legal provisions discussed hereinabove, the execution and attestation of Will Ext.DW1/A stands duly proved in accordance with law. 28. In Swapan Kumara and others v. Sanjay Kumar and another, 2002(3) Shim. L.C. 294, having identical question of law formulated for adjudication, a coordinate Bench of this Court found the question of law so framed of no avail and held that the question whether a Will can be believed or not is not a question of law nor the High Court will re-appraise the evidence to ascertain whether the Will should be believed or not. 29. Learned counsel, representing the appellants has placed reliance on the judgment of Apex Court in S.R. Srinivasa and others v. S. Padmavathamma, (2010) 5 SCC 274 , The ratio of law laid down by the Apex Court in this judgment is, however, not attracted in the given facts and circumstances of the case for the reason that none of the attesting witnesses were examined in that case and the statement of the scribe, who alone stepped into the witness box, was not taken to be that of an attesting witness, as he never signed the Will in the capacity of an attesting witness. This, however, is not the position in the case in hand, as even if it is believed that Shiv Ram Numberdar was only an identifier, one of the marginal witnesses DW3 Prem Lal has appeared into the witness box and categorically deposed about the execution and attestation of the Will in so many unambiguous words. To the similar effect is the ratio of judgment of the Apex Court in N. Kamalam (dead) and another v. Ayyasamy and another, (2001) & SCC 503, which is also of no help to the case of the appellants plaintiffs. 30. In view of what has been said hereinabove, the execution and attestation of the Will in question stands satisfactorily proved in the case in hand. There is no question of law, much less a substantial question of law involved for adjudication in the present appeal. The judgments and decrees passed by both Courts below call for no interference and deserve to be upheld. 31. For all the above reasons, this appeal fails and the same is accordingly dismissed, however, with no order as to costs. Appeal dismissed.