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2015 DIGILAW 1023 (HP)

Fithu Ram alias Pritam Chand v. Jit Singh

2015-08-05

RAJIV SHARMA

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JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree dated 26.3.2004 by the Additional District Judge, Hamirpur in Civil Appeal No. 75/98 (RBT No. 125/02). 2. “Key facts” necessary for the adjudication of this appeal are that the respondent No.1-plaintiff (herein after referred to as ‘plaintiff’ for convenience sake) instituted a suit for declaration and permanent injuncation against the appellant-defendnt (hereinafter referred to as the defendant” for convenience sake) as well as defendant No.2 Smt. Nehra Devi on the averments that the land detailed in the plaint measuring 10 Kanal 10 Malaras to the extent of 1/3rd share, i.e. 3 kanal 10 marlas, as per Jamabandi for the year 1987-88 was shown to be owned and possessed by deceased Bhagat Ram. The Abadi of late Sh. Bhagat Ram was situate in Khata No. 52, Khatauni No. 53, Khasra No. 262 measuring 8 marlas to the extent of ½ share as per Jamabandi for the year 1987-88 situate in Tikka Bardiar, Tappa Saproh, Tehsil Nadaun, District Hamirpur including residential house and cow-shed were situate on the suit land. Plaintiff was entitled to inherit and succeed to the estate of deceased Bhagat Ram to the extent of 1/3rd share in the suit land, house and cattle shed. Bhagat Ram died on 8.7.1991. Last rites were performed by the plaintiff. Bhagat Ram was not in a sound disposing mind and capable of executing any “will”. Bhagat Ram has never executed any “will”. Defendant claimed that Bhagat Ram has executed “will” in his favour. 3. Suit was contested by defendant Fithu Ram. He has supported mutation No. 195 qua the suit land dated 5.2.1992. Plaintiff was not entitled to inherit 1/3rd share of deceased Bhagat Ram. Last rites were not performed by the plaintiff. These were performed by him. Deceased Bhagat Ram was in sound disposing state of mind and was capable to execute the “will” Bhagat Ram has executed the “will” in his favour due to the services rendered by him. The “will” was not the result of fraud, misrepresentation and the “will” has been executed in a sound disposing state of mind. 4. Replication was filed by the plaintiff. Issues were framed by the Sub Judge-II, Hamirpur on 24.11.1992. Sub Judge partly decreed the suit for joint possession vide judgment dated 16.2.1998. Defendant preferred an appeal before the Additional District Judge, Hamirpur. 4. Replication was filed by the plaintiff. Issues were framed by the Sub Judge-II, Hamirpur on 24.11.1992. Sub Judge partly decreed the suit for joint possession vide judgment dated 16.2.1998. Defendant preferred an appeal before the Additional District Judge, Hamirpur. He dismissed the same on 26.3.2004. Hence, the present appeal. It was admitted on the following substantial question of law: “Whether the assumption that the scribe could not be an attesting witness in the facts and circumstances of the case is sustainable and the statements of Deep Ram DW-3 and Abhinash Chand DW-4 who had witnessed the execution of the will could be discarded, particularly when the marginal witnesses of the will Amin Chand had died and the other witness Jaishi Ram was won over by the respondent/plaintiff.” 5. Mr. Rajnish K. Lal, learned counsel for the appellant, on the basis of the substantial question of law framed, has vehemently argued that the “will” Ex.DW-3/A was valid. He has relied upon the statements of DW-3 Deep Ram and DW-4 Abhinash Chander. 6. Mr. Samir Thakur, learned counsel for the respondents has supported the judgments and decrees passed by both the courts below. 7. I have heard the learned counsel for the parties and have gone through the records carefully. 8. The “will” Ex.DW-3/A is dated 1.7.1991. Bhagat Ram has died on 8.7.1991. There is no recital in the “will” Ex.DW-3/A that the same was executed in favour of defendant for the services rendered by him to Sh. Bhagat Ram. PW-1 Jit Singh has categorically deposed that he has taken his father to Delhi. He was suffering from throat cancer. He could not speak for 3-4 months. His last rites were performed at Delhi. 9. PW-2 Mast Ram has deposed that Bhagat Ram was suffering from throat cancer. He could not speak. PW-3 Khyali Ram has also deposed that Bhagat Ram was suffering from cancer. He could not speak for the last 3-4 months. PW-4 Sant Ram has deposed that Bhagat Ram was not fit to execute the “will”. He was suffering from cancer and could not speak for the last 6 months. PW-5 Yogesh Sharma has proved map Ex.PW-5/A. 10. The “will” was executed, as noticed hereinabove, on 1.7.1991 and Bhagat Ram died on 8.7.1991. He was not in a position to speak. It has also come in the evidence that cancer was at the last stage. He was suffering from cancer and could not speak for the last 6 months. PW-5 Yogesh Sharma has proved map Ex.PW-5/A. 10. The “will” was executed, as noticed hereinabove, on 1.7.1991 and Bhagat Ram died on 8.7.1991. He was not in a position to speak. It has also come in the evidence that cancer was at the last stage. Even DW-2 Pritam Chand has admitted that Bhagat Ram was suffering from throat cancer for the last 6 moths and it was at the last stage. 11. The “will” in question has been scribed by DW-3 Deep Kumar. The attesting witnesses were Amin Chand and Jaishi Ram. Neither Amin Chand nor Jaishi Ram has been examined by the defendant to prove the validity of the will. Mr. Rajnish K. Lal has submitted that in fact Amin Chand has expired. However, no tangible evidence has been placed on record to prove this fact. 12. Mr. Rajnish K. Lal has also argued that his client was looking after Sh. Bhagat Ram. However, fact of the matter is that DW-2 Pritam Chand was residing in Delhi for the last 30 years. Thus, he could not look after him in the village. 13. Mr. Rajnish K. Lal has further argued that it was a registered “will”. However, fact of the matter is that neither DW-3 Deep Kumar Scribe of the “will” nor DW-4 Abhinash Chander has deposed that they have also appended their signatures on the “will” after affixing thumb impression by Bhagat Ram and attesting witnesses. DW-3 Deep Kumar has deposed that he has scribed the “will” at the instance of Bhagat Ram, but there is no mention in the “will” Ex.DW-3/A that in fact who identified the executant before the scribe. He has not even identified the thumb impression of the executant on “will” Ex.DW-3/A. He also did not identify the signatures of Jaisi Ram and Amin Chand. Similarly, the Court has already noticed that DW-4 Abhinash Chander has not testified that the executant was personally known to him and he has affixed his thumb impression at the time of registration of the “will” in his presence. The executant was suffering from cancer. The cancer was at the last stage. He was not even able to speak. The marginal witnesses have not been examined. Statements of DW-3 Deep Kumar and DW-4 Abhinash Chander are sketchy. The executant was suffering from cancer. The cancer was at the last stage. He was not even able to speak. The marginal witnesses have not been examined. Statements of DW-3 Deep Kumar and DW-4 Abhinash Chander are sketchy. Thus, the will Ex.DW-3/A is surrounded by suspicious circumstances and the defendant has failed to remove the suspicious circumstances. 14. Both the courts below have correctly appreciated the oral as well as documentary evidence and there is no need to interfere with the well reasoned judgments and decrees passed by both the courts below. 15. The substantial question of law is answered accordingly. 16. In view of the analysis and discussion made hereinabove, there is no merit in the present appeal and the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.