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2014 DIGILAW 966 (PNJ)

Ram Nath v. Banto Devi

2014-06-30

RAKESH KUMAR JAIN

body2014
JUDGMENT Mr. Rakesh Kumar Jain, J.: - This order shall dispose of two appeals bearing RSA No.3361 and 3448 of 2011 as both the appeals have been filed by the same set of appellants in respect of the same property in dispute. 2. The brief facts of the case are that one Jhandu Ram had three sons and six daughters. He executed a registered Will on 15.9.1988 and while executed another Will dated 12.4.1989, cancelled the earlier will and by virtue of the subsequent Will, he bequeathed his entire land, in equal share, in favour of his three sons and his wife. Accordingly, Jhandu Ram had excluded all his daughters from inheriting any share in his property. After about eight months of the execution of the Will dated 12.4.1989, Jhandu Ram expired. His widow sold her share to one Deewan Singh resident of village Mandhar and later on she also died on 27.6.1999. Two suits were filed bearing Civil Suit No. 772 of 2004/2005 by Ram Nath and Duni Chand, both sons of Jhandu Ram against their brother Ram Dass and all the six sisters whereas another suit bearing No. 807 of 2006 by three daughters of Jhandu Ram against all the three brothers and other three sisters. In suit No. 772 of 2004/2005, two sons of Jhandu Ram sought declaration to the effect that they have become the owners of the property in dispute along with their brother as per Will dated 12.4.1989 and in another suit No.807 of 2006, three sisters, daughters of Jhandu Ram, claimed natural succession to the property of Jhandu Ram, who died on 21.12.1989, on the ground that he died as intestate and the Will dated 15.9.1988 and 12.4.1989 are illegal and are not binding on their rights. Both the suits were consolidated by the trial Court on 13.9.2007 and the suit No.807 of 2006 filed by Banto Devi was taken as the lead case in which the entire evidence for the purpose of another suit was also recorded. The trial Court dismissed the suit No.772 of 2004/2005 filed by Ram Nath and Dhuni Chand and decreed the suit No. 807 of 2006 filed by Banto Devi and others declaring them to be the joint owners in possession in equal share (1/9th share each of the land measuring 34 kanal 13 marlas). The trial Court dismissed the suit No.772 of 2004/2005 filed by Ram Nath and Dhuni Chand and decreed the suit No. 807 of 2006 filed by Banto Devi and others declaring them to be the joint owners in possession in equal share (1/9th share each of the land measuring 34 kanal 13 marlas). Against the judgment and decree of the trial Court as many as four appeals were filed namely Civil Appeal No.148 of 2010 titled as Ram Nath and another Vs. Ram Dass and others; Civil Appeal No.149 of 2010 titeld as Ram Nath and another Vs. Banto Devi and others; Civil Appeal No. 168 of 2010 title as Neelam Kumar Vs. Banto Devi and others and Civil Appeal No. 169 of 2010 titled as Neelam Kumar Vs. Ram Nath and others. All the four appeals were dismissed by the common order of the Appellate Court as a result thereof the judgment and decree of the trial Court in favour of Banto Devi rendered in Civil Suit No. 807 of 2006 was upheld to the effect that all the children of Jhandu Ram would succeed to his property in equal share as he has been treated to have died intestate. 3. The Courts below have not relied upon the Will set up by the plaintiffs dated 12.4.1989 as it bear the right hand thumb impression of Jhandu Ram which could not be compared and was stated to be surrounded by suspicious circumstance. 4. Learned counsel for the appellants has framed a question of law “as to whether, the Will in question, proved by the attesting witnesses, could be discarded by the Courts below on the ground that the thumb-impression of the testator appended on the disputed Will is of the right hand”? 5. Learned counsel for the appellants has argued that there is no law that a male should always put his left hand thumb-impression on the Will and a female should use her right hand thumb-impression. It is only a practice and since the attesting witnesses of the Will have proved the due execution of the Will, even if it bears right hand thumb-impression of Jhandu Ram, the same could not have been discarded. 6. It is only a practice and since the attesting witnesses of the Will have proved the due execution of the Will, even if it bears right hand thumb-impression of Jhandu Ram, the same could not have been discarded. 6. On the other hand, learned counsel for the respondents has argued that the Will has to be executed in terms of Section 63(c) of the Indian Succession Act, 1925 and proved in terms of Section 68 of the Indian Evidence Act, 1872, which requires that it should be proved at least by examining one of the attesting witnesses. It is submitted that although the case of the plaintiffs is that two attesting witnesses had stated that the testator has put his thumb-impression on the Will in their presence but there is no mechanism with the defendants to impeach the credibility of the said witnesses except by leading their evidence by way of expert’s opinion by getting the thumb-impression and signatures verified because the attesting witnesses could be procured or lured to make a false statement in the Court about the person, who had signed the Will which could also be signed by an imposter and thus, the only way to impeach the credibility of the said attesting witnesses is either by way of their cross-examination or leading their own evidence to create suspicion and the best evidence in that regard is report of the handwriting expert, who could at least say that the signature or thumb-impression does not tally with the signature and thumb-impression of the testator. 7. The present case is of a peculiar situation where the defendants are not in a position to lead any evidence in rebuttal. They had engaged a handwriting expert to examine the thumb impression on the Will as to whether it relates to Jhandu Ram or not but the handwriting expert has given an opinion that the thumb-impression on the Will is of the right hand of a person and in the absence of any specimen thumb-impression of the right hand of Jhandu Ram, it could not have been proved before the Court that even that thumb-impression on the Will is of Jhandu Ram, may be of the right hand. Moreover, no evidence has been brought on record by the plaintiffs to deviate from the settled practice of putting the left hand thumb-impression on the Will. Moreover, no evidence has been brought on record by the plaintiffs to deviate from the settled practice of putting the left hand thumb-impression on the Will. The plaintiffs could have led evidence to prove that there were cogent reasons for the testator not to put his left hand thumb-impression on the Will and had chosen to put his right hand thumb impression but in the absence of any explanation to that effect, the said circumstance falls in the definition of suspicious circumstance as held by this Court in the case of “Bishan Singh (dead) through LRs Vs. Saran Singh and others” 2006 (4) RCR (Civil) 226 in which reliance has been placed on the another judgment of this Court rendered in “Harbans Kaur Vs. Anoop Singh” 1991 Shimla Law Journal 217. 8. In this view of the matter, in the absence of any explanation for deviating from the practice of putting left hand thumb-impression on the Will and also in the absence of any specimen right hand thumb-impressions available for comparison with the right hand thumb-impression of the alleged testator on the Will, the Will cannot be accepted to be beyond suspicious circumstance and to be genuine for the purpose of ousting the other natural heir from inheriting the property of their father. 9. Thus, the question of law raised by learned counsel for the appellants is decided against them and accordingly both the appeals are hereby dismissed. ---------0.B.S.0------------ —————————