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Himachal Pradesh High Court · body

2014 DIGILAW 392 (HP)

Desh Raj v. Sarindro Devi

2014-04-11

TARLOK SINGH CHAUHAN

body2014
Judgment Tarlok Singh Chauhan, J. 1. The plaintiff is the appellant who filed a suit for declaration to the effect that he was owner in possession of 1/4th share of the land as well as shop entered in Khata No. 33, Khatoni No. 46, Khasra No. 1158/484 measuring 7K-2 M as per jamabandi 1983-84, situated in Tika Jhanikkar, Tappa Ugialta, Tehsil and District Hamirpur, H.P., with a relief of permanent injunction restraining the defendant from alienating the land. 2. It was averred that previously Thakur Dass s/o Jawahar father of the parties was owner in possession of the suit property, who died on 26.2.1989. According to the plaintiff, the defendant No. 1 was a cunning person, who got some “Will” dated 1.10.1987 executed fraudulently and illegally from Thakur Dass, who always wanted to give every inch of the suit property to the plaintiff and defendant No. 1 in equal shares. In was alleged that in the year 1986 Thakur Dass had suffered an acute attack of paralysis because of which his mental faculty and body was completely effected and for which the plaintiff got him treated at C.M.C. Ludhiana, but there was no visible improvement. It was alleged that plaintiff had always been looking after his father, who most of times resided with him and wanted to give the shop in question to him. Therefore, the “Will” got executed in favour of defendant No. 1 was null and void and not binding on the plaintiff. It was further alleged that on the basis of “Will”, the defendant had started claiming the shop in question to be his and hence the suit. 3. The suit was contested by the defendant- respondent No. 1 by raising preliminary objections of maintainability, form, estoppel, limitation, valuation etc. On merits, it was claimed that at the time of execution of “Will” Thakur Dass was possessing a sound disposing mind and the same was executed as per his wishes. The suit was further resisted on the ground that whole of the property of Thakur Dass had not been included in the suit. It was specifically alleged that Thakur Dass never wanted to give the shop in question to the plaintiff. 4. The plaintiff filed replication, controverting the contents of the written statement, re-asserting and reaffirming the pleas already taken in the plaint. On 8.1.1990, the learned trial court framed the following issues:- 1. It was specifically alleged that Thakur Dass never wanted to give the shop in question to the plaintiff. 4. The plaintiff filed replication, controverting the contents of the written statement, re-asserting and reaffirming the pleas already taken in the plaint. On 8.1.1990, the learned trial court framed the following issues:- 1. Whether the plaintiff is owner of 1/4th share of suit property as alleged? OPP. 2. Whether the plaintiff is entitled for permanent injunction as alleged? OPP. 3. Whether late Shri Thakur Dass executed a valid will dated 1.10.1987 in favour of the plaintiff and defendant No.1? OPD. 4. Whether the suit is not maintainable in the present form? OPD. 5. Whether the plaintiff is estopped from filing the suit by his act and conduct? OPD. 6. Whether the suit is not within limitation? OPD. 7. Whether the suit is not properly valued for court fee and jurisdiction? OPD. 8. Relief. 5. The parties led evidence and vide judgment and decree dated 5.3.1993, the learned trial court dismissed the suit of the plaintiff. Aggrieved by the judgment and decree passed by the learned trial court, the plaintiff-appellant preferred an appeal before the learned lower appellate court, which too vide judgment and decree dated 5.10.2001 has been dismissed. Aggrieved by the said judgment and decree, the appellant has preferred the present appeal. 6. On 7.3.2002, this court admitted the appeal on the following substantial question of law:-Whether the judgment of the Ld. Courts below suffer from infirmity on the basis of non-consideration of the material evidence on record and there is a substantial error and defect in procedure in ignoring the application under Order 41 rule 27 and disallowing the prayer for comparison of signatures by handwriting expert, resulting in improper adjudication of the rights of the parties? 7. I have heard the learned counsel or the parties and have gone through the records of the case. 8. During the pendency of this appeal, an application has been preferred by the plaintiff- appellant for referring the documents to the handwriting expert after examining the admitted signatures of Thakur Dass on the sale deed with the signatures on “Will” Ex. D-1 with a further prayer that an additional issue be framed and the matter be remanded back to the trial court. 9. D-1 with a further prayer that an additional issue be framed and the matter be remanded back to the trial court. 9. I have gone through the contents of this application and find that this is a desperate attempt made by the appellant only to delay the outcome of the present proceedings. Sh. Kuthiala, learned counsel for the appellant complains that in fact the plaintiff had moved an application before the learned trial court, however, because of the fault of the court, the application was placed in the file on another suit inter-se the parties and was thus never decided by the learned trial court. 10. No doubt, the learned counsel for the appellant is correct when he points out that his application had been placed by the concerned court in the wrong file. But at the same time, in case the plaintiff was serious to pursue this application, he should have ensured that application is placed in the correct file. Moreover, it has not been shown as to what prejudice has been caused to the plaintiff. Last not the least a perusal of the application would clearly go to show that same is creptic and lacks material particulars. The plaintiff has not even bothered to specify as to which documents bore the admitted signatures of the testator and which of these documents he wants to get compared from the handwriting expert. The contents of the application are reproduced herein-below:- “In the Court of Senior Sub Judge, Hamirpur (H.P.) Des Raj vs. Hem Raj etc. Civil Suit No. 92-1/89 Next date: 1.4.91 Application for comparison of signatures of late Sh. Thakur Dass son of Jawahar. Sir, The applicant prays as under: 1. That the case above titled is pending in the Hon’ble Court and fixed for 1.4.1991. 2. That in the instant case there is dispute regarding the execution of will and the will produced by the defendant is forged one. 3. That there are ample admitted signatures on the file from where the signature can be very well compared. It is, therefore, prayed that will dated 1.10.87 may please be sent to the hand writing expert for comparison in the fitness of circumstances in the interest of justice. Sd/- (Des Raj) Through Sh. Suresh Musafir, Advocate Hamikrpur (H.P.) Dated: 31.1.91 Place: Hamirpur.” 11. It is, therefore, prayed that will dated 1.10.87 may please be sent to the hand writing expert for comparison in the fitness of circumstances in the interest of justice. Sd/- (Des Raj) Through Sh. Suresh Musafir, Advocate Hamikrpur (H.P.) Dated: 31.1.91 Place: Hamirpur.” 11. A similar application, under Order 41, Rule 27 CPC for producing in evidence the sale deed dated 30.10.1967 which bore the signatures of late Sh. Thakur Dass was sought to be sent to the handwriting expert for comparison with document Ex. D-1 on the ground that said document would facilitate the court to arrive at a just and reasonable finding. The learned lower appellate court after discussing all the relevant facts and circumstances has drawn definite conclusion that in case the application is allowed the same would tantamount to filling up the lacuna left in the plaintiff’s case. The learned lower appellate court clearly noticed that it was not the case of the plaintiff that this document was not within his knowledge or despite due diligence he could not produce the same at an appropriate stage in the trial court. It has further been held that it would not be proper to conclude only after comparison of the signature of the testator that Ex. D-1 does not bear signature of Thakur Dass signature for the reason that sale-deed in question was executed on 30.10.67, whereas Ex. D-1 had been executed on 1.10.87 after about 20 years and thus variation is bound to occur due to afflux of time in the two sets of signatures. Lastly, it was concluded by the learned lower appellate court that plaintiff had miserably failed to make out a case of leading additional evidence and accordingly the application was dismissed. 12. The appellant- plaintiff with the sole object of delaying the decision of the appeal, which is otherwise pending since the year 2001 has preferred the present application on the same and similar grounds as taken by the learned lower appellate court. The present application too is dismissed with the same reasoning as accorded by the learned lower appellate court. ON MERITS: 13. The plaintiff- appellant in order to prove his case appeared in the witness box as PW 1 and claimed that his father was not in a sound and disposing mind when “Will” Ex. D-1 is alleged to have been executed. ON MERITS: 13. The plaintiff- appellant in order to prove his case appeared in the witness box as PW 1 and claimed that his father was not in a sound and disposing mind when “Will” Ex. D-1 is alleged to have been executed. He has further claimed that not only his eye sight but his mental condition was not good. PW 2 has not stated anything in this behalf, rather he feigned ignorance regarding the “Will” in question. PW 3 has deposed about the fact that testator (Thakur Dass) had suddenly fallen ill in November 1986 and was suffering from mental ailment. PW 4 Smt. Harbansi Devi, the sister of the parties has stated that her father was not in a position to recognize things, but then in her cross-examination she has stated that she met her father 15 days prior to his death and he specifically told her that his condition was not good. The other material witness examined by the plaintiff is PW 6 Dr. Justin Dass from C.M.C. Ludhiana, who has deposed regarding the illness of the testator and has stated that he (Thakur Dass) had been admitted for memory disturbance and was not fully conscious. However, this witness has only deposed about the health of the testator during the period he remained admitted in C.M.C. Ludhiana and not of the day when the “Will” Ex. D-1 was executed. In fact, he has categorically stated that testator had not been brought to C.M.C. Ludhiana after 24.11.1986. 14. The defendant on the other hand has examined himself as DW 1 and has claimed that he was rendering services to his father and had got him admitted in the Hospital at Hamirpur and thereafter at C.M.C. Ludhiana and it is on account of his having rendered services to his late father that in lieu thereof, he executed a “Will” Ex. D-1 in his favour. His statement is corroborated by DW 2 Onkar Thakur, Advocate and DW 3 Sohan Lal, both of whom are the attesting witnesses of the “Will”. DW 4 Ramesh Kumar is the scribe of the “Will”. DW 6 Laxmi Dutt, Tehsildar has proved the due attestation of the “Will”. This is the entire evidence led by the parties. 15. It has come on record that based upon the “Will” mutation No. 424 Ex. D-3 was attested that too in the presence of the defendant. DW 4 Ramesh Kumar is the scribe of the “Will”. DW 6 Laxmi Dutt, Tehsildar has proved the due attestation of the “Will”. This is the entire evidence led by the parties. 15. It has come on record that based upon the “Will” mutation No. 424 Ex. D-3 was attested that too in the presence of the defendant. Though he raised the objection and was given an opportunity by the Assistant Collector before attestation of the mutation, but he failed to do so and it was thereafter that mutation was sanctioned. He did not even file any appeal against the mutation and, had therefore, acquiescenced to the attestation of the mutation. At this stage he cannot now turn around and state that “Will” Ex. D-1 was not legal and valid. 16. In so far as the mental faculties and condition of late Sh. Thakur Dass is concerned, PW 4 who is the sister of both the parties is the most material witness. She appeared in rebuttal as plaintiff’s witness and has categorically stated that she had met her father 15 days prior to his death and upon her asking regarding his condition, he had stated “Bacha Meri Halat Thik Na hai” meaning “child, my condition is not good”. It does not require any imagination that such words could have only been said by a person who was having a good and healthy mind. This clearly shows that mental faculties and condition of deceased Thakur Dass even 15 days prior to his death were perfectly good or else he would not have said such words. 17. There is otherwise no material on record whereby it can be gathered that mental condition of deceased Thakur Dass was such so as to make him incapable of knowing what was good or bad and distinguishing right from wrong. On the other hand, in case the entire evidence of the defendant is perused, it clearly goes to show that Thakur Dass was in a fit and normal mental state. 18. It is significant to note here that in the plaint, the plaintiff has specifically stated that his father had been suffering from paralysis while the evidence led by him is to the effect that his father was suffering from mental disease and his eye sight was also weak. 18. It is significant to note here that in the plaint, the plaintiff has specifically stated that his father had been suffering from paralysis while the evidence led by him is to the effect that his father was suffering from mental disease and his eye sight was also weak. This evidence being contrary to the pleadings cannot be looked into and has rightly been discarded by the learned courts below. 19. Sh. Sanjeev Kuthiala, learned counsel for the appellant would thereafter contend that “Will” Ex. D-1 is shrouded by the following suspicious circumstances:- 1. That the testator was not in a fit state of mind. 2. The beneficiary took active part in the execution of the will. 3. There was no independent witness, who attested the will. 20. I am afraid that though such arguments appear to be attractive, but are not at all substantiated from the material on record. In so far as the testator not being in a fit state of mind is concerned, I have already held hereinabove that testator was in a fit state of mind. Even otherwise both the courts below have concurrently found the testator to be in a fit state of mind and such findings being findings of fact cannot be looked into by this court. In Narinder Singh Rao vs. Air Vice-Marshal Mahinder Singh Rao and others (2013) 9 SCC 425 , it has been held as under:- “9. So far as inheritance of the suit property by the present appellant in pursuance of the will dated 1.6.1989 executed by Sumitra Devi is concerned, the finding of the lower appellate court is to the effect that the will was validly executed by Sumitra Devi, which had been attested by two witnesses, one being an advocate and another being a medical practitioner. Though there was an allegation to the effect that Sumitra Devi was not keeping good health at the time when she had executed the aforesaid will and she was not having sound and disposing mind at the time of execution of the will, the said submission made before the courts below was not accepted. Upon appreciation of evidence adduced, it was held that the will was validly executed and Sumitra Devi was competent to execute the will which had been duly attested by two competent witnesses. Upon appreciation of evidence adduced, it was held that the will was validly executed and Sumitra Devi was competent to execute the will which had been duly attested by two competent witnesses. In the circumstances, the courts below came to the conclusion that the will was validly executed. The question with regard to the state of mind of the testatrix and execution of the will being a question of fact, the High Court rightly accepted the findings arrived at by the lower appellate court. As the said finding has been accepted by the High Court, in our opinion, even this Court would not reappreciate the said fact. In the circumstances, so far as the validity of the will is concerned, it is treated to have been executed properly. The next question which was to be considered by the High Court was with regard to the ownership right of the suit property. The property was in the name of Rao Gajraj Singh and no evidence of whatsoever type was adduced to the effect that the property originally belonged to Sumitra Devi. Looking to the said fact, the findings arrived at by the High Court that the suit property belonged to Rao Gajraj Singh cannot be disturbed. As Rao Gajraj Singh died intestate and was the owner of the property at the time of his death, the suit property should have been inherited by his widow, namely, Sumitra Devi and his eight children in equal shares, as per the provisions of the Hindu Succession Act, 1956. In that view of the matter, the High Court arrived at the conclusion that the suit property would be inherited by all the 9 heirs i.e. Sumitra Devi and her eight children and therefore, Sumitra Devi had inherited only 1/9th of the right and interest in the suit property whereas 1/9th of the right and interest in the suit property belonged to each child of Rao Gajraj Singh.” “15. The submissions made with regard to the mental capacity of Sumitra Devi at the time of execution of the will cannot also be looked into at this stage because the mental capacity of the testator to execute a will being a question of fact, we would like to accept the findings arrived at by the court below and all allegations with regard to soundness of mind of Sumitra Devi at the time of execution of the will or allegation with regard to undue influence of the present appellant with whom Sumitra Devi was residing at the time of her death cannot be looked into by this Court as they are the issues pertaining to fact. We, therefore, do not accept the submissions made with regard to validity of the will executed by Sumitra Devi.” 21. There is no evidence worth the name that beneficiary i.e. defendant took active part in the execution of the “Will”, the mere fact that he had accompanied the testator at the time of execution of “Will” cannot be termed to be active participation. It is common human conduct that at the time of execution of the “Will” the testator would be accompanied by his most confident and trusted person and in this case it happens to be defendant. 22. The learned counsel for the appellant then relied upon the judgment of Hon’ble Supreme Court in Mahesh Kumar (Dead) by LRs. vs. Vinod Kumar and others (2012) 4 SCC 387 to contend that attesting witnesses were not the independent witnesses and this by itself sufficient to give rise to serious suspicion about the genuineness of the “Will”. 23. In so far as this contention of appellant is concerned, it may be stated that DW 2 Onkar Thakur is an Advocate at Hamirpur, who has clearly stated that he was knowing the testator since his childhood. DW 3 is none-else than the Clerk of DW 2. Therefore, in the given facts and circumstances these witnesses cannot be termed to be strangers and are definitely trustworthy witnesses. 24. Sh. Kuthiala, would then rely upon the judgment of the Supreme Court in M.B. Ramesh (Dead) by LRs. vs. K.M. Veeraje URS (Dead) by LRs. DW 3 is none-else than the Clerk of DW 2. Therefore, in the given facts and circumstances these witnesses cannot be termed to be strangers and are definitely trustworthy witnesses. 24. Sh. Kuthiala, would then rely upon the judgment of the Supreme Court in M.B. Ramesh (Dead) by LRs. vs. K.M. Veeraje URS (Dead) by LRs. and others (2013) 7 SCC 490 to contend that even concurrent findngs of fact, were open to interference when relevant evidence has not been considered or there has been an erroneous approach to the matter and findings are perverse. He further contended that it has clearly been held in this decision that judicial conscience has to be satisfied while dealing with cases of wills surrounded by suspicious circumstances. 25. There is no quarrel with the proposition as laid down by the Hon’ble Supreme Court, but as held in this judgment itself, it is for the caveator to prove the allegations of fraud, undue influence and coercion. No doubt, this court will have to uphold the “Will” only after suspicious circumstances if any have been completely dispelled. But here the appellant has failed to prove the allegations of fraud. 26. Sh. Kuthiala, learned counsel for the appellant then contended that there was no occasion for his father Thakur Dass to disinherit him from the shop in dispute and has relied upon the judgment of Hon’ble Supreme Court in Dayanandi vs. Rukma D. Suvarna and others (2012) 1 SCC 510 , wherein the Hon’ble Supreme Court has observed as follows:- “19 The appellant and respondent No.2 relied upon the testimony of PW- 5, who had been examined by respondent No.1 to prove the execution of the Will Exhibit P.1. In his cross examination PW-5 disclosed that as per his knowledge, Singa Gujaran had made two Wills and he was a witness to the second Will as well which, according to him, was also scribed by Narsappayya. According to PW-5, the testator had affixed left thumb mark on Exhibit D.1 and he had signed the Will as a witness in the clinic. What is significant to be noted is that PW-5 did not say that Singa Gujaran had affixed left thumb mark in his presence and that he had put his signatures as witness in the presence of the testator. What is significant to be noted is that PW-5 did not say that Singa Gujaran had affixed left thumb mark in his presence and that he had put his signatures as witness in the presence of the testator. As to the state of health of the executant, PW-5 categorically stated that he was suffering from acute stomach cancer and was not in a position to eat or walk. “22. We may now advert to the two reasons put forth by the appellant and respondent No.2, which did not find favour with the High Court, to substantiate their plea that the testator had consciously disinherited respondent No.1. The first reason was that respondent No.1 did not attend the funeral of her mother and on that count the father was upset. On the face of it, this reason does not sound plausible. It is an admitted position that the mother of the parties died in 1985. If the father was upset with respondent No.1 on the ground that the latter had not come to attend the funeral of the mother, then he would not have given any share to her in item 2 of the Schedule appended to Ext. P1. However, the fact of the matter is that the testator did give a share to respondent No.1 along with two other daughters. It is a different thing that some manipulative alterations were made in Ext. P1 giving an impression that before putting his left thumb mark, the testator had consciously disinherited respondent No.1.” 27. I am afraid that fact situation as obtaining in the present case is absolutely different from the one which was before the Hon’ble Supreme Court. I have already concluded that testator was in a sound state of mind at the time of the execution of the “Will” and the reason for giving certain additional property by way of shop to the defendant was on account of the fact that defendant had served the testator during the life time. It has specifically come on record that it was defendant alone who had taken the testator for treatment to the hospital initially at Hamirpur and thereafter twice to C.M.C. hospital Ludhiana. 28. The judgment of this Court in Baru Ram and others vs. Smt. Kishani Devi 1992 (1) Sim. It has specifically come on record that it was defendant alone who had taken the testator for treatment to the hospital initially at Hamirpur and thereafter twice to C.M.C. hospital Ludhiana. 28. The judgment of this Court in Baru Ram and others vs. Smt. Kishani Devi 1992 (1) Sim. L.C. 115 was then pressed into service by the learned counsel for the appellant to contend that registration of the ‘Will” in itself would not raise any presumption regarding the genuineness of the “Will” and this fact does not prove by itself that the “Will” had been executed in accordance with section 63 of the Act. Again, there is no quarrel with the proposition of law. However, the fact remains that plaintiff has failed to prove that “Will” was not genuine or had been executed by the testator when he was not in a fit state of mind or that beneficiary had taken active part or that there were no independent witnesses who had attested the “Will” in question. Moreover, DW 6 the registering authority has clearly proved the registration of the “Will”. 29. Thus, taking into account all the aforesaid facts and circumstances, the substantial question of law as framed above is answered against the appellant. 30. In the result, the present appeal and CMP No. 563 of 2012 are ordered to be dismissed with costs throughout.