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Himachal Pradesh High Court · body

2014 DIGILAW 918 (HP)

Sant Ram alias Basanta v. Ghoga

2014-07-17

SURESHWAR THAKUR

body2014
JUDGMENT Sureshwar Thakur, Judge. This appeal is directed against the impugned judgment and decree, rendered on 11.12.2002, by the learned District Judge, Hamirpur, H.P., in Civil Appeal No. 31 of 1991, whereby, the learned District Judge dismissed the appeal preferred, by the appellant/plaintiff. 2. The brief facts, of the case, are that Sant Ram, the plaintiff instituted a suit for declaration and permanent prohibitory injunction against the defendants, Jasodhan and others and in the alternative, he, prayed for a decree for possession of the suit land being accorded in his favour. The plaintiff avers that Ishar Dass was owner in possession of ¼ share of land comprised in khata No.5, Khatauni No.5 & 6, khasra kita 11, measuring 58 kanals, 1/16 share of land comprised in khata No.8, KhatauniNo.9, 10, 11, 12, khasra kita 9, measuring 70 kanals and 1/16 share of land comprised in Khata No.9, Khatauni No.12 to 21, Khasra kita 35, measuring 405 kanals 19 marlas, as per jamabandi for the year 1979-80, situated in Tika Ghirand, Tappa Kanerad, Tehsil and District Hamirpur (hereinafter referred to as the suit land). The pedigree table of the parties, is, extracted hereinafter:- Jawahar _____________________________________________________________ Shyam Mangal Gulaba Har Sukh ______________________________________________________________ Duni Chand Sita Gohga Penu Ishar Dass ______________________________________________________________ Brahmi Saroti Satya Sarwan Jagta Prema Roshan _____________________________ Kauran Jasodhan Basanta @Sant Ram The plaintiff, is, brother’s son of the father of deceased Ishar Dass. Ishar Dass is stated to be dumb, yet he was having sufficient understanding. Plaintiff has been averred to be looking after the deceased Ishar Dass, who was issueless. In lieu of the services rendered by the plaintiff to Ishwar Dass, the latter is averred to be executed a Will, Ex.PW2/A on 13.4.1984 in favour of the plaintiff. Ishar Dass, is, averred to be died all of sudden and on his death the plaintiff inherited his property through Will Ex.PW2/A. The plaintiff produced the Will Ex.PW2/A before the revenue officer but he revenue officer attested the mutation of inheritance of Ishar Dass in favour of the defendants without holding any inquiry. The plaintiff has been averred to be in possession of the land qua the share of Ishar Dass. The plaintiff has been averred to be in possession of the land qua the share of Ishar Dass. The defendant did not admit the claim of the plaintiff to have become owner of the share of Ishar Dass on the basis of Will Ex.PW2/A. Hence, the plaintiff was driven to institute the suit for declaration to the effect that he be declared owner in possession of the suit land and for injunction restraining the defendants from interfering in his possession over the suit land and, in, the alternative sought the decree for possession of the suit land. 3. Defendants Nos. 3, 4 and 6 contested the suit while the other defendants were proceeded against ex-parte. Defendants Nos. 3 and 4 have averred in their written statement that Ishar Dass was both dumb and deaf. It is denied that Ishar Dass was living with the plaintiff or he was being looked after by the plaintiff. It is denied that Ishar Dass had executed the Will Ex.PW2/A in favour of the plaintiff as he was not a man possessing sound disposing state of mind, as such, it is contended that Ex.PW2/A, is, a forged document. Furthermore, it is contended that the suit property was ancestral property. The parties are Rajputs by caste, therefore, they are governed by agricultural custom under which Ishar Dass had no right to dispose of the ancestral property by way of Will in favour of the plaintiff. The Revenue Officer is contended to have legally attested the mutation of inheritance of the property of Ishar Dass in favour of the parties. 4. Defendant No.6 in his written statement contended that she was rendering all services and provided amenities of life to Ishar Dass and plaintiff never looked after and maintained Ishar Dass. She, too, contended that Ishar Dass was not a man of sound disposing mind, for executing the Will in favour of the plaintiff and that the will, is, a forged document. 5. The plaintiff filed replications to the written statements of the contesting defendants, wherein, he denied the contents of the written statements and re-affirmed and reasserted the averments made in the plaint. 6. On the pleadings of the parties, the learned trial Court struck following issues interse the parties in contest: 1. Whether Ishar Dass deceased executed a valid Will on 13.4.1984 in favour of the plaintiff? OPP 2. 6. On the pleadings of the parties, the learned trial Court struck following issues interse the parties in contest: 1. Whether Ishar Dass deceased executed a valid Will on 13.4.1984 in favour of the plaintiff? OPP 2. Whether Ishar Dass deceased and defendants are governed by agricultural custom in matter of alienation i.e. Will etc. If, what is that custom? OPD 3&4. 3. Whether the suit land was ancestral qua deceased Ishar Dass and parties? OPD 3&4. 4. Whether the suit is not maintainable? OPD (6) 5. Whether the plaintiff has no locus standi and cause of action to file the present suit? 6. Whether the plaintiff is estopped from filing the suit by his act and conduct? OPD (6) 7. Whether the defendant No.6 is entitled for special costs, if so, to what amount? OPD(6) 8. Relief. 7. On Appraisal of the evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiff for declaration and permanent prohibitory injunction, as also, in alternative for possession of the suit land. In appeal, preferred by the plaintiff/appellant before the learned first Appeal Court, against the judgment and decree of the learned trial Court, the learned first Appellate court dismissed the appeal. 8. Now, the plaintiff/appellant has instituted the instant Regular Second Appeal before this Court, assailing the findings recorded by the learned first Appellate court, in, its impugned judgment and decree. When the appeal came up for admission on 4.11.2005, this Court, admitted the appeal instituted by the plaintiff/appellant against the judgment and decree rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law: 1. Whether the judgment and decree passed by the learned District Judge dismissing the suit of the appellant/plaintiff and affirming the judgment and decree of the trial court can be sustained when it ignored the provisions of Section 59 of the Indian Succession Act, 1925 which does not prohibit a deaf and dumb person from executing a Will? 2. Whether both the courts below were right in holding that Will was executed by the testator was shrouded by suspicious circumstances when there is no finding that the testator was not of sound disposing mind and further when it was established that the propounded was the only person looking after the testator? 3. 2. Whether both the courts below were right in holding that Will was executed by the testator was shrouded by suspicious circumstances when there is no finding that the testator was not of sound disposing mind and further when it was established that the propounded was the only person looking after the testator? 3. Whether the judgment and decree passed by both the learned Courts below is vitiated for non consideration of the provisions of Section 59 and 63 of the Indian Succession Act, 1925 and 68 of the Indian Evidence Act? 4. Whether the presence of the propounder at the time of execution of the Will was sufficient to have raised an irrebutable presumption of law that the Will was surrounded by suspicious circumstances when the evidence clearly established that besides the propounder, none of the respondents/defendants had ever cared to look after the testator during his life-time? 5. Whether the findings of the learned Court below on the question of custom can be sustained without there was no pleading and proof? 6. Whether the learned trial court was right in holding that the property in the hands of the deceased was ancestral property and could not be alienated when the admitted case of the parties was that the deceased was unmarried, issue less and sole surviving co-parcener? 7. Whether the judgment and decree passed by the learned District Judge can be sustained when it is not complied with Order 41, Rule 31 CPC and Order 20, Rule (2) and Rule 5 CPC in as much as it has not assigned any reason for rejecting the case of the appellant/plaintiff? Substantial questions of law No.1 to 7. 9. Since the issue devolving upon the validity of the testamentary disposition of deceased Ishar Dass, in, favour of the plaintiff/appellant, takes within its scope and ambit the substantial questions of law formulated by the Court and extracted hereinabove, hence, rendition of findings by this Court, qua the tenability of findings recorded by both the learned Courts below, qua the validity as well as the tenability of the testamentary disposition of the deceased testator, would sequel, a concomitant answer to the substantial questions of law. 10. Ex.PW2/A, is, an unregistered testamentary disposition of Ishar Dass. Under it the plaintiff, is, the legatee. 10. Ex.PW2/A, is, an unregistered testamentary disposition of Ishar Dass. Under it the plaintiff, is, the legatee. With an acid contest having emerged interse the parties qua the testamentary capacity and qua the sound disposing state of mind of the deceased testator, at, the stage contemporaneous, to, the execution of the Will Ex.PW2/A, hence, an apposite issue qua, its, validity was framed. There is unanimity of evidence on record, comprised, in the depositions of PW-2 Kashmir Singh, PW-3 Kishori Lal and PW-4 Hari Dass, PW-5 Sunder Ram and PW-6 Ram Swaroop, qua the fact of the deceased being dumb. However, there, is, no unanimity or harmony amongst the plaintiff’s witnesses qua the fact, of, the deceased testator being deaf, in as much as, the scribe of the Will as well as the attesting witnesses to it, depose qua the fact of the deceased being dumb, yet his not being deaf. However, PW-5 deposes that the auditory faculties of the deceased were impaired. PW-6 deposes that the deceased testator was both deaf and dumb, yet his cognitive faculties were intact. Tentatively, assuming that the deceased testator was both deaf and dumb, yet, in the face of explanation (2) to Section 59 of the Indian Succession Act vesting a right in a deaf and dumb person to make a Will, hence, the deceased testator acquired a statutory right, as, well as, the capacity to dispose of, by way of a testamentary disposition, comprised in Ex.PW2/A, the suit property in favour of the legatee, who, is, the plaintiff. 11. For proving the valid and due execution of a Will, the, statutory ingredients mandated, in, Section 63 of the Indian Succession Act are enshrined to be proved and fulfilled, in as much, as, it has to be proved or established by cogent evidence that the testator had signed or thumb marked the Will in the presence of the attesting witnesses, who, too, thereafter signed or thumb marked the same, in, the presence of the deceased testator. In so far as, proof with regard to fulfillment and compliance with the aforesaid envisaged conditions, prescribed for proving the fact of valid and due execution of the testamentary disposition of the deceased testator, the same, is, comprised in the testimony of the attesting witnesses to the Will, who are PW3 and PW4. An advertence to the depositions of PW-3 and PW4 is, hence, essential. An advertence to the depositions of PW-3 and PW4 is, hence, essential. However, before adverting to the testimonies of PW-3 and PW-4, the, attesting witnesses to the Will, it is also imperative to initially advert, to, the deposition of the scribe of the Will, PW-2 Kashmir Singh. In his deposition, PW-2 has unequivocally and categorically pronounced the fact of Ex.PW2/A having been drafted by him. It has been deposed to have been drafted at the instance of and at the behest of plaintiff and the deceased testator. It has been deposed to have been scribed at Sujanpur. On that day, the petition writer has been deposed to be ailing. He further deposed that both had desired that the Will be scribed by him. He deposes qua the sound disposing state of the mind of the deceased testator. Besides that he testified to the fact that the deceased was dumb, yet, his hearing was unimpaired. The deceased testator has been deposed by him to have conveyed, to the scribe of the Will Ex.PW2/A that since all his needs of food and clothing are being tended to by the plaintiff, as such, he impliedly articulated his desire for his having made up his mind to bequeath his suit property in his favour. The contents thereof have been deposed to have been readover and explained to the deceased testator, whereafter he thumb marked the Will. The testimony of the scribe of the Will, hence, on its close and incisive reading, loudly, pronounces the factum (a) of the auditory faculties of the deceased testator being unimpaired; (b) it pronounces the fact of the deceased testator having conveyed to him the fact that the plaintiff tended to all his needs of food and clothing and (c) with the communication in the testimony of PW-2, the scribe of the Will of the auditory faculties of the deceased testator, being unimpaired, at, the relevant time or, at, the stage contemporaneous to the execution of the Will, hence, the further deposition of the scribe of the Will that the contents of the Will being readable and concomitantly hearable, by the deceased testator, who, hence, was on its contents having been readover and explained to him having heard them, besides his having comprehended them is an obvious inference which can be formed. Now, it has to be seen whether the deposition, of, the attesting witnesses to the Will Ex.PW2/A, comprised, in, the testimonies of PW-3 and PW-4 are in tandem with or lend proof, to, the conditions precedent enshrined, in, Section 63 of the Indian Succession Act, for construing whether Will, Ex.PW2/A was validly and duly executed, in as much, as, the deceased having signed or thumb marked his testamentary disposition whereafter each of the attesting witnesses having signed it in presence of the deceased testator. While analyzing and discerning the evidence of the attesting witnesses to the Will Ex.PW2/A, it, emerges that PW-3, Kishori Lal, the first attesting witness to the Will has in categorical and forthright terms deposed the fact of the Will Ex.PW2/A having been thumb marked by the deceased testator, in his presence, as well, as, in the presence of Hari Dass, the other attesting witness to it. There, is, an enunciation by this witness in his deposition qua the fact of the deceased testator being possessed of sound disposing state of mind and his auditory faculties being unimpaired. The other attesting witness to the Will Ex.PW2/A, Hari Dass, PW4 has lent corroboration to the testimony of the scribe PW-2, qua, the fact of the Will having been scribed by the latter, at, the instance of and at the behest of the deceased testator, who had conveyed, to him that since all his needs of food and clothing are being tended to by the plaintiff, as such, he impliedly leaned to make a testamentary disposition in his favour. He, too, deposes that though, the deceased was dumb, yet his auditory faculties were unimpaired. Moreover, he with vigour and force deposes qua the facts as deposed by the latter of the contents of Ex.PW2/A after theirs having come to be scribed, having been readover and explained to the deceased testator. He has further deposed that only after his having heard and understood the contents of Ex.PW2/A, that the deceased testator had appended his thumb mark on testamentary disposition, comprised, in, Ex.PW2/A. Thereafter he supports the deposition of PW-2 of his as well as PW-4 having subsequently in the presence of the deceased testator having signatured Ex.PW2/A. 12. The depositions of the attesting witnesses to Ex. The depositions of the attesting witnesses to Ex. PW-2/A lends assurance as well as substantiate the factum of adequate proof having been adduced by the plaintiff qua the fact of fulfillment and accomplishment of the conditions precedent for a will to be construable to be validly and duly executed, in as much, as, both the attesting witnesses, whose testimonies, have been discussed hereinabove, have deposed of the deceased testator having thumb marked the Will in their presence, thereafter, they too, in the presence of the deceased testator having signatured it. However, in the instant case, what has aroused, a legal conundrum and has beset this Court with a piquant situation is the contentious fact of the sound disposing state of mind of the deceased testator or whether given the evidence of PW-5, Sunder Ram, that the auditory faculties of the deceased testator were impaired, besides , the testimony of PW-6 Ram Swaroop that the deceased was both deaf and dumb, yet was able to gauge and fathom, whether, hence, then the testimonies of the aforesaid witnesses detract from the efficacy of the testimonies of the scribe PW-2 and the attesting witnesses, PW-3 and PW-4, in as much, as, or whether then it has got to be concluded, that the veracities of the testimonies of the scribe and attesting witnesses to the Will, qua its contents being readable as well as hearable and understandable by the deceased testator get undermined. 13. In the endeavour to gauge the probative value of the testimonies of the scribe and the attesting witnesses, the testimonies of each of them has to be read, in, a wholesome manner. This Court ought not to give short shrift to the testimonies of the scribe and the attesting witnesses, as, then, it would not be, proceeding to discern their testimonies, in a wholesome and harmonious fashion. This Court ought not to give short shrift to the testimonies of the scribe and the attesting witnesses, as, then, it would not be, proceeding to discern their testimonies, in a wholesome and harmonious fashion. While concerting to discern the testimonies of the scribe, as well, as, attesting witnesses to Ex.PW2/A, an evident emerging fact which sprouts, is, of each having proved (a) the factum of the plaintiff tending to the needs of food and clothing of the deceased testator; (b) the Will having been prepared at the instance and at the behest of the deceased testator, who had communicated to PW-2, the factum of the plaintiff tending to all his needs of food and clothing and, hence, his being goaded to get Ex.PW2/A, scribed from PW-2 in favour of the plaintiff and (c) fulfillment of the conditions precedent for Will to be construable to be a validly and duly executed, surfacing on a reading of the testimonies of the scribe, PW-2 and the attesting witnesses, PW-3 and PW-4, as, adverted to hereinabove. 14. Each of the witnesses aforesaid have deposed qua the non-impairment of the auditory faculties of the deceased testator, hence, further, their testimonies qua the contents of the Will having been readover and explained to the deceased testator, who, thereafter thumb marked Ex.PW2/A assume significance and importance, in as much, as, when considering the fact of his auditory faculties having been deposed to have remained unimpaired, besides, his having capacity of hearing or listening, as such, the contents of the Will, as readover and explained to him, is both hearable, as well, as, understandable by him, when readover and explained, is, too, an inference, which necessarily and as a natural concomitant ensues, apart from the fact that its contents were comprehensible by him as well as comprehended by him. As a sequel, then, this Court is prodded to draw a conclusion qua the fact that the deceased testator executed a valid testamentary disposition in favour of the plaintiff. As a sequel, then, this Court is prodded to draw a conclusion qua the fact that the deceased testator executed a valid testamentary disposition in favour of the plaintiff. The omission or want of cross-examination of each of the aforesaid witnesses qua the fact as deposed by each of them, qua the auditory faculties of the deceased testator being unimpaired, hence, contents of Ex.PW2/A being readable as well as hearable or understandable by the deceased testator, nor also, when there is no cross-examination of the aforesaid witnesses contradicting their depositions qua the version, as, deposed by them in their examination-in-chief, qua the sound disposing state of mind of the deceased testator, as also, qua the fact that the aforesaid attesting witnesses have connived with the plaintiff. Obviously, such omission naturally, then, wean this Court to conclude that, hence, there is an admission on the part of the defendants qua the veracities of the depositions of PW-2 and PW-3, the attesting witnesses as comprised in their respective examination-in-chief that (I) of the Will Ex.PW-2/A having been prepared at the instance of and at the behest of the deceased testator; (II) of his auditory faculties being alive; (iii) of, hence, his cognitive faculties having remained unimpaired and contents of Ex.PW2/A being readable, hearable and understandable by him and (iv) therefore, Ex.PW2/A, is, to be concluded to be a voluntary testamentary disposition of the deceased testator, besides, it was also get inferred that it was executed in a sound disposing state of mind, by the deceased testator. 15. The aforesaid inferences, benumb and out strip the testimonies of PW-5 and PW-6, who, are not the attesting witnesses to the Will, who, had randomly deposed, in as much, as, PW-5, having deposed that the deceased testator was hard of hearing and PW-6 has deposed that though, his auditory faculties were impaired yet he could understand gauge and fathom, as such his cognitive faculties had remained intact, of their probative worth. 16. Ex.PW2/A is to be construable to be validly and duly executed within the legal parameters enjoined and enshrined in Section 63 of the Indian Succession Act, only, when proof of its valid and due execution was lent in the legal ordained manner by the attesting witnesses. The attesting witnesses are the fulcrum and pivot qua proof of Ex.PW2/A. Their testimonies have been construed by this Court to be standing on sacrosanct pedestal. The attesting witnesses are the fulcrum and pivot qua proof of Ex.PW2/A. Their testimonies have been construed by this Court to be standing on sacrosanct pedestal. It was they, who were to be subjected to rigor of an incisive cross-examination by the defendants, to strip off, as well, as, erode, the veracities of their testimonies qua probative vigour. However, the defendants did not concert nor endeavour at the apposite stage by cross-examining the scribe of the Will, as well, as, the attesting witnesses to erode their depositions comprised in their examination-in-chief, of the truth, wherein, they lent proof qua the valid and due execution of the Will, Ex. PW2/A. Hence, the defendant having omitted to do so at the apposite stage or theirs having not concerted by cross-examining the scribe, as well, as, attesting witnesses to the Will, Ex.PW2/A for eroding, their testimonies, in their examination-in-chief, of truth, they are, to be construed to have, hence, acquiesced to the truth/veracities of their depositions in their examinations-in-chief qua the factum of the deceased having thumb marked the Will and the contents of the Will having been readover and explained to him with his auditory faculties being alive. Such acquiescence estops them, to, by making elicitations, from the witnesses, who are not attesting witnesses qua the lack of auditory faculties of the deceased testator, to, Ex.PW2/A, hence, do not carry the significance and no reliance can be placed upon the testimonies when contradict the fact qua possessing of auditory capacity by the deceased testator as deposed by the pivotal witnesses. Besides, for reiteration when they are not witnesses, whose testimonies are construed to be taken within the legally enjoined parameter enshrined, in, Section 63 of the Indian Succession Act, to be lending proof qua the valid and due execution of the Will, Ex.PW2/A, as such, any version spelt out by them qua the lack of the deceased testator not possessing adequate auditory faculties, to the considered mind of this Court, hence, too, is of little significance, rather, is of no significance, besides carries no probative worth. Consequently, their testimonies when they deposed qua the aforesaid fact are discardable. 17. Consequently, their testimonies when they deposed qua the aforesaid fact are discardable. 17. For the reasons as stated hereinabove, when this Court has imputed the credence to the testimonies of PW2, PW-3 and PW-4, besides, when it has been concluded that their testimonies alone comprise evidence qua the valid and due execution of the Will, Ex.PW2/A, as also, qua the sound disposing state of mind of the deceased testator, obviously, their evidence, is, potent, as also, when they depose in harmony with each other qua the factum of Ex.PW2/A having been validly and duly executed by the deceased testator, when he was possessed of a sound disposing state of mind, his enjoying cognitive as well as auditory faculties, rendering him capable of, or enjoying the capacity to understand the contents of Ex.PW2/A, readover and explained to him, hence, whereafter his having heard and understood its contents, he, having thereafter, as proved by PW-3 and PW-4 thumb marked it, thereafter the attesting witnesses signatured it. Therefore when proof is lent to the fulfillment and compliance of all the ingredients as also the para meters as enshrined and enjoined in Section 63 of the Indian Succession Act, such apposite relevant proof constrains, this Court, to, conclude that the aforesaid facets of the case, has, been ignored by both the learned Courts below, causing gross miscarriage of justice, necessitating interference by this Court. Accordingly, all the substantial questions of law are answered in favour of the plaintiff/appellant and against the defendants/respondents. 18. Accordingly, all the substantial questions of law are answered in favour of the plaintiff/appellant and against the defendants/respondents. 18. In view of above discussion, the appeal is allowed and the suit of the plaintiff is decreed and the plaintiff is declared to be owner in possession of land comprised in khata No.5, Khatauni No.5 & 6, khasra kita 11, measuring 58 kanals to the extent of ¼, share, measuring 14 kanals 10 marlas, khata No.8, KhatauniNo.9, 10, 11, 12, khasra kita 9, measuring 70 kanals to the extent 1/16 share, measuring 4 kanals 7 marlas, and Khata No.9, Khatauni No.13 to 21, kita 35, measuring 405 kanals 19 marlas, to the extent of 1/16 share, measuring 25 kanals 7 marlas, as per jamabandi for the year 1979-80, situated in Tika Ghirand, Tappa Kanerad, Tehsil and District Hamirpur, on the basis of Will Ex.PW2/A executed by deceased Ishar Dass in favour of the plaintiff, H.P. Further the defendants are restrained from interfering in the possession of the plaintiff over the suit land. As a result the judgments and decrees of both the learned first Appellate Court as also the learned trial Court are set aside.