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2014 DIGILAW 887 (HP)

Ram Dai v. Mahi Dass alias Man Singh

2014-07-11

P.S.RANA

body2014
JUDGMENT : - P.S.Rana, J. Present appeal filed under Section 100 of the Code of Civil Procedure against judgment and decree passed by learned Additional District Judge-II Kangra at Dharashala in Civil Appeal No. 18-K/2001 titled Sh Mahidass alias Man Singh Vs. Smt Sundari Devi and another. Prayer for affirmation of judgment and decree of learned trial Court sought and prayer for setting aside judgment and decree of learned Additional District Judge-II Kangra at Dharamshala HP sought. During the pendency of the appeal Smt Sundari Devi appellant No.1 died and she was deleted from the memo of parties on the ground that her legal heir namely Smt Ramdai is already impleaded as co-appellant. 2. Brief facts of the case as pleaded are that plaintiff Mahi Dass @ Man Singh filed suit for grant of decree of declaration and permanent prohibitory injunction to the effect that the plaintiff is the owner in possession of suit land on the basis of Will executed by testator Sh Rasila Ram. It is further pleaded that mutation Nos. 59 and 78 attested on the basis of Will dated 27th May 1993 are wrong, illegal and not binding upon the plaintiff. It is further pleaded that defendants have no right, title or interest over the suit land. It is further pleaded that Rasila Ram deceased was co-owner of the suit property along with his brothers. It is further pleaded that the mother of plaintiff namely Smt Baghan Devi who was the wife of deceased Sh Rasila Ram died. It is further pleaded that plaintiff only looked after Sh Rasila Ram during his life time and deceased Rasila Ram executed Will on dated 12th October 1988 in favour of the plaintiff. It is further pleaded that after the death of Sh Rasila Ram plaintiff Mahi Dass remained in settled possession of the suit property. It is further pleaded that on the basis of Will defendants have no right title or interest over the suit property. It is further pleaded that alleged Will executed on dated 27th May 1993 in favour of the defendants was the result of fraud and the same is null and void. It is further pleaded that plaintiff asked the defendants to admit the claim of the plaintiff but the defendants refused to do to. Prayer for decree of the suit as mentioned in the relief clause sought. 3. It is further pleaded that plaintiff asked the defendants to admit the claim of the plaintiff but the defendants refused to do to. Prayer for decree of the suit as mentioned in the relief clause sought. 3. Defendants filed written statement and also filed counter claim pleaded therein that suit is not maintainable and plaintiff has no cause of action and locus standi to file present suit. It is further pleaded that suit is not properly valued. It is further pleaded that defendants are owner in possession of the suit property after the death of Sh Rasila Ram as per document i.e. Will dated 27th May 1993. It is further pleaded that plaintiff did not serve deceased Rasila Ram during his life time. It is further pleaded that there was litigation between deceased Rasila Ram and plaintiff Mahi Dass. It is further pleaded that deceased Rasila Ram also prosecuted plaintiff Mahi Dass in SDM Court and sought security to his life. It is further pleaded that plaintiff is not in settled possession of the suit property. It is further pleaded that plaintiff has no cause of action to file present suit. It is further pleaded that suit filed by the plaintiff be dismissed and counter claim filed by the defendants be decreed. Plaintiff also filed replication. As per pleadings of the parties the following issues were framed by learned trial Court on dated 6th September 1999: 1. Whether the plaintiff is owner in possession of the suit land as alleged? …OPP 2. Whether the deceased Rasila Ram executed a legal and valid Will in favour of the plaintiff on 12.10.88 as alleged? ..OPP 3. Whether the Will executed by the deceased on 27.5.1993 in favour of the defendants is the result of fraud and mis-representation as alleged, if so, its effect? ..OPP. 4. Whether the deceased Rasila Ram executed a due and valid Will in favour of defendants on 27.5.1993 as alleged if so, its effect? …OPD-1. 5. Whether the defendants are entitled to the relief of permanent prohibitory injunction as prayed for by way of counter claim? …OPD 6. Whether the suit is not maintainable in the present form? ..OPD. 7. Whether the plaintiff is estopped by his act and conduct to file the present suit? …OPD. 8. Whether the plaintiff has no cause of action and locus standi to file the present suit? …OPD. 9. Relief. 4. …OPD 6. Whether the suit is not maintainable in the present form? ..OPD. 7. Whether the plaintiff is estopped by his act and conduct to file the present suit? …OPD. 8. Whether the plaintiff has no cause of action and locus standi to file the present suit? …OPD. 9. Relief. 4. Findings of the learned trial Court upon issues No.1,2,4 to 8 are in negative and finding of learned trial Court upon issue No.3 is redundant. Learned trial Court dismissed the suit as well as counter claim filed by the defendants. 5. Feeling aggrieved against the judgment and decree passed by learned trial Court plaintiff Sh. Mahi Dass alias Man Singh filed Civil Appeal No. 18-K/2001 titled Sh Mahi Dass alias Man Singh Vs. Smt Sundari Devi and another before learned Additional District Judge, Kangra at Dharamshala. Learned first appellate Court allowed the appeal and upheld Will dated 12.10.1988 in favour of plaintiff and decreed the suit filed by plaintiff. 6. Feeling aggrieved against the judgment and decree passed by learned first appellate Court in Civil Appeal No. 18-K/2001 titled Sh Mahi Dass Vs. Smt Sundari Devi and another appellant filed present appeal under Section 100 of the Code of Civil Procedure. Hon’ble High Court of HP on dated 9.4.2003 admitted the appeal on the following substantial questions of law: 1.Whether the impugned judgment and decree passed by learned first Appellate Court below stand vitiated for not taking into consideration the last Will dated 27.5.1993 in favour of defendants?. 2. Whether there are suspicious circumstances which shrouded Will Ext. PW2/A dated 12.10.1988 and non-appreciation of the same vitiated the impugned judgment and decree?. 7. Court heard learned Advocate appearing on behalf of the parties at length and also perused the entire record carefully. 8 Plaintiff produced following oral witnesses in support of his case. PW1 Sh.Mahi Dass PW2 Sh. Amar Singh PW3 Sh. Prittam Chand 8.1. Contesting defendant did not adduce any oral witness. 8.2. Parties also produced the following pieces of documentary evidence in support of their case. Sr.No. Ext.No.& Date Description 1. Ext.P1&P2 dt.19.7.2000 Copy of Missal Hakiat 2. Ext.P3 &P4 dated 19.7.2000 Copies of Jamabandis 3. Ext.P5 Copy of Misal Hakiat 4. Ext.P6,P7 & P8 dt.19.7.2000 Copy of mutations 5. Ext.PW2/A Registered Will dated 12.10.1988 in favour of plaintiff. 6. Mark-D1 Registered Will dated 27.05.1993 in favour of defendants. Oral evidence adduced by the plaintiff: 9. Sr.No. Ext.No.& Date Description 1. Ext.P1&P2 dt.19.7.2000 Copy of Missal Hakiat 2. Ext.P3 &P4 dated 19.7.2000 Copies of Jamabandis 3. Ext.P5 Copy of Misal Hakiat 4. Ext.P6,P7 & P8 dt.19.7.2000 Copy of mutations 5. Ext.PW2/A Registered Will dated 12.10.1988 in favour of plaintiff. 6. Mark-D1 Registered Will dated 27.05.1993 in favour of defendants. Oral evidence adduced by the plaintiff: 9. PW1 Mahi Dass has stated that suit land is comprised in 4/5 khatas situated in tikka Madun and tikka Chakwan. He has stated that initially the owner of the suit land was Rasila Ram who was father of the plaintiff. He has stated that he is in settled possession of the suit land. He has further stated that Rasila Ram used to reside with him and he used to look after Sh Rasila Ram during his life time. He has stated that he has performed all the death ceremony of deceased Rasila Ram. He has stated that in the year 1988 the testator has executed a Will in his favour. He has stated that the name of his mother was Smt Baghan Devi who died. He has stated that Smt Sundari Devi was his step-mother. He has stated that Smt Ram Dei is also his step-sister. He has stated that his father used to reside with Sundari Devi and Ram Dei. He has stated that defendant No.1 is residing with her daughter since 25/30 years. He has stated that defendant No.2 is residing at village Dargala which is about 50 Km. away from his house. He has stated that defendants have no right title or interest over the suit property. He has stated that Prithvi was his uncle. He has stated that Prithvi used to reside at village Rajole. He has stated that village Rajole is situated at about 40 Km. from his house. He has stated that Prithvi has no cordial relation with the plaintiff due to some litigation. He has stated that Sundari Devi and Ram Dei in collision with Prithvi prepared a forged Will. He denied suggestion that testator was residing separately with him since 1986. He has stated that he does not know that Rasila Ram owned the suit property to the extent of 72 to 80 kanals. He has admitted that Rasila Ram has executed a Gift in his favour to the extent of 8 to10 kanals of land. He denied suggestion that testator was residing separately with him since 1986. He has stated that he does not know that Rasila Ram owned the suit property to the extent of 72 to 80 kanals. He has admitted that Rasila Ram has executed a Gift in his favour to the extent of 8 to10 kanals of land. He has stated that Rasila Ram had executed Will in favour of the plaintiff in the year 1988. He denied suggestion that after execution of the Will plaintiff started beatings to Rasila Ram and Smt Sundari Devi. He denied suggestion that thereafter Rasila Ram filed Civil Suit in the Court of Civil Judge. He denied suggestion that deceased Rasila Ram had also filed complaint against him before the Court of SDM. He denied suggestion that thereafter Rasila Ram executed another Will dated 27th May 1993 in favour of defendants. Self stated that forged Will was prepared. He has stated that the testator was of sound mind till his death. 9.1 PW2 Amar Singh Deed Writer has stated that he has brought the summon record. He has stated that he worked as petition writer at kangra w.e.f.1986 to 1989. He has stated that he has seen Wiill Ext.PW2/A which has been written by him on 12th October 1988. He has stated that Will was written at the instance of Rasila Ram. He has further stated that contents of the Will were read over to Rasila Ram. He has stated that after admitting the contents of the Will as correct Sh Rasila Ram had signed the Will. He has stated that Sh Pritam Chand and Sripat were the marginal witness of the Will. He has stated that Sh Pritam Chand was the halqua Chowkidar. 9.2 PW3 Sh Pritam Chand has stated that parties are known to him. He has stated that the name of the father of Mahi Dass was Rasila Ram. He has stated that defendant No.1 is the step-mother of the plaintiff and defendant No.2 is the step-sister of plaintiff. He has stated that testator Rasila Ram was served by plaintiff Mahi Dass and he has performed the death ceremony. He has stated that Mahi Dass was in settled possession of the suit property. He has stated that Will was executed in the year 1988 at Kangra. He has stated that he is the Chowkidar of the village. He has stated that testator Rasila Ram was served by plaintiff Mahi Dass and he has performed the death ceremony. He has stated that Mahi Dass was in settled possession of the suit property. He has stated that Will was executed in the year 1988 at Kangra. He has stated that he is the Chowkidar of the village. He has stated that he has signed the Will. He has stated that the contents of the Will were read over to the testator. He has stated that thereafter testator had signed the Will and thereafter the marginal witnesses have signed the same. He has stated that thereafter Will was presented before Tehsildar. He has admitted his signature in mark D-1 and endorsement. He has admitted that last Will dated 27.05.1993 was executed by testator Rasila Ram in favour of Smt. Sundari Devi and Ram Dei defendants. 9.3. Defendants did not adduce any oral witness as per statements of learned Advocate appearing on behalf of defendants. Finding upon Point No.1 substantial question of law framed by Hon’ble High Court of HP on dated 9.4.2003. 10. Submission of learned Advocate appearing on behalf of the appellant that judgment and decree passed by the learned first appellate Court is vitiated on account of non taking into consideration the latest Will dated 27th May 1993 in favour of contesting defendant is rejected being devoid of any force for the reasons hereinafter mentioned. In written statement the defendant has pleaded the execution of Will dated 27th May 1993. Contesting defendant did not place on record original Will dated 27th May 1993. Even the defendant did not seek any permission to prove alleged Will dated 27th May 1993 by way of secondary evidence as required under Section 65 of the Indian Evidence Act. Even in the present case contesting defendant did not appear in the witness box for the purpose of cross-examination. It is proved on record that on dated 19th September 2000 learned Advocate appearing on behalf of the contesting defendant stated before the learned trial Court that contesting defendant did not want to lead any oral evidence. It is well settled law that Court can draw adverse inference against the parties for non-appearance in the Court. See 1999 SC page 1441 titled Vidhyadhar Vs. Mankikrao and another. Also See 1999 (1) SLJ page 724 titled Ishwar Bhai C.Patal Vs. Harihar Behera and another. It is well settled law that Court can draw adverse inference against the parties for non-appearance in the Court. See 1999 SC page 1441 titled Vidhyadhar Vs. Mankikrao and another. Also See 1999 (1) SLJ page 724 titled Ishwar Bhai C.Patal Vs. Harihar Behera and another. Hence in the present case adverse inference is drawn against the contesting defendant for not appearing in the Court for the purpose of cross examination and adverse inference is also drawn against the contesting defendant for not placing on record the alleged original Will dated 27th May 1993. Adverse inference is also drawn against the contesting defendant for not proving the Will dated 27th May 1993 by way of primary evidence or secondary evidence as required under Indian Evidence Act. Hence it is held that appellant did not prove Will dated 27th May 1993 in accordance with law. Hence point No.1 of substantial question of law is answered in negative against the appellant. Finding upon Point No.2 substantial question of law framed by Hon’ble High Court of HP on dated 9.04.2003: 11. Submission of learned Advocate appearing on behalf of the appellant that there are suspicious circumstances qua Will dated 12th October 1988 Ext PW2/A is accepted for the reason hereinafter mentioned. In the present case plaintiff has pleaded the execution of Will dated 12th October 1988 and contesting defendant has pleaded the execution of Will dated 27th May 1993. It is proved on record that Rasila Ram was the father of the plaintiff. It is also proved on record that Rasila Ram was the husband of deceased Smt Sundari Devi and was the father of Smt Ram Dei. It is also proved on record that Smt Sundari Devi defendant No.1 was the step-mother of plaintiff. It is also proved on record that Smt Ram Dei is the step-sister of plaintiff. Court has carefully perused the registered Will Ext.PW2/A dated 12th October 1988 and Court has also carefully perused the Photostat copy of registered Will mark D1 dated 27th May 1993 placed on record. It is proved on record that attesting witness of both the Wills dated 12th October 1988 and dated 27th May 1993 is PW3 Pritam Chand Halqua Chowkidar. In the present case the testimony of PW3 Pritam Chand Halqua Chowkidar is very material. Court has carefully perused the testimony of PW3 Pritam Chand recorded by learned trial Court. It is proved on record that attesting witness of both the Wills dated 12th October 1988 and dated 27th May 1993 is PW3 Pritam Chand Halqua Chowkidar. In the present case the testimony of PW3 Pritam Chand Halqua Chowkidar is very material. Court has carefully perused the testimony of PW3 Pritam Chand recorded by learned trial Court. PW3 Pritam Chand marginal attesting witness of both the Wills has specifically stated in cross-examination that testator Rasila Ram had executed the Will in favour of Smt Sundari Devi and Smt Ram Dei on dated 27.05.1993. In view of the testimony of PW3 Pritam Chand that testator had executed the latest Will in favour of Smt Sundari Devi and Smt Ram Dei on dated 27.05.1993. Will dated 12th October 1988 executed in favour of plaintiff Mahi Dass was revoked because PW3 Pritam Chand is the marginal attesting witness of both the Wills as pleaded by both the parties. It is well settled law that all the ingredients mentioned in Section 63 of Indian Succession Act 1925 should be proved in order to prove the execution of the unprivileged Will. In view of the testimony of PW3 Pritam Chand marginal attesting witness of the Will that deceased Rasila Ram had also executed subsequent Will in favour of the defendants it is not expedient in the ends of justice to rely upon Will dated 12th October 1988 and Will dated 12.10.1988 was revoked by testator as per testimony of PW3 Pritam Chand in cross-examination. See AIR 2002 HP 7 titled Smt. Leela alias Bali Devi Vs. Smt. Drumti Devi. It is well settled law that scribe cannot be said to be attesting witness. It is also well settled law that Will takes effect after the death of testator. It was held in case reported in HLJ 2013 HP 959 titled Som Dutt and another Vs. Padam Chand and others that one attesting witness of the Will should prove the Will and it was held that scribe and Sub Registrar are not the attesting witness of the Will. It is held that mere registration of the Will is not sufficient to prove the execution of Will. In the present case plaintiff did not examine Sh Sripat another attesting witness of the Will. It is held that mere registration of the Will is not sufficient to prove the execution of Will. In the present case plaintiff did not examine Sh Sripat another attesting witness of the Will. In view of the contradictory testimony of PW3 Pritam Chand qua execution of both Wills i.e. 12th October 1988 and 27th May 1993 it is not expedient in the ends of justice to hold that testator Rasila Ram had executed the latest Will in favour of plaintiff. It is well settled law that when there are two Wills executed by the same testator then latest Will always prevails. It is also proved on record that there was strained relation between the plaintiff and testator Rasila Ram. It is also proved on record that testator Rasila Ram during his life time had filed a complaint against the plaintiff qua security of his life. In view of the above stated facts it is held that Will Ext.PW2/A dated 12th October 1988 was revoked by the testator during his life time as per section 62 of Indian Succession Act 1925 in view of testimony of PW3 Pritam Chand in cross examination. Hence point No.2 of substantial question of law is answered in favour of the appellant/defendant and against the plaintiff. 12. In view of the above findings appeal is partly allowed and judgment and decree passed by the learned trial Court in Civil Suit No. 48 of 1998 titled Mahi Dass alias Man Singh Vs. Sundari Devi and another decided on 21.09.2000 are affirmed and judgment and decree passed by learned Additional District Judge Court No. II Kangra at Dharamshala announced in Civil Appeal No. 18-K/2001 titled Mahi Dass alias Man Singh vs. Smt Sundari Devi and another are set aside. All miscellaneous applications are also disposed of. Parties are left to bear their own costs.