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2015 DIGILAW 1397 (HP)

Anshul Singhal v. Vinod Kumar

2015-10-05

SURESHWAR THAKUR

body2015
JUDGMENT Sureshwar Thakur, J. 1. A dispute arose inter-se the parties at lis qua succession to the estate of deceased Beerbala. The predecessor-in-interest of the defendants/respondents herein, to espouse his claim to succeed to the estate of deceased Bir Bala propounded a will purportedly executed qua her estate by her in his favour. The factum of a valid and due execution of the testamentary disposition of deceased Beerbala qua her estate in favour of the predecessor-in-interest of defendants/respondents herein was vehemently contested by the plaintiff/petitioners herein. On the pleadings of the parties, the hereinafter apt and necessary issues were struck:- “2. Whether deceased Smt. Bir Bala had executed a valid will in favour of deceased Sh. Kuldeep Chand, the predecessor in interest of defendants No. 1 to 6, as alleged? OPD 1 to 6. 3. If issue No.2 is proved in affirmative, whether the Will dated 24.1.1991 is a result of fraud, as alleged? OPP” 2. The defendants/respondents herein while discharging the onus as cast upon them qua apposite issue No.2 had, in consonance with the mandate of Section 63 of the Indian Succession Act enjoining them to prove the factum of valid and due execution of the testamentary disposition of deceased Beerbala qua her estate in favour of their predecessor-in-interest by examining any one of the marginal witness to it, led into the witness box an attesting witness to it. The attesting witness to the testamentary disposition executed by the deceased testator in favour of the predecessor-in-interest of defendants/respondents herein in tandem with the statutory prescription manifested in section 63 of the Indian Succession Act, proved the factum of its due and valid execution by the deceased testator qua her estate in favour of the predecessor-in-interest of the defendants/respondents herein. The plaintiffs/petitioners herein availed of and proceeded to inexorably cross-examine the attesting witness who during the course of the recording of his examination-in-chief had proved the factum of it having come to be validly and duly executed by the deceased testator Birbala, yet even during the course of his being subjected to an exacting cross-examination by the learned counsel for the plaintiffs/petitioners herein, he remained unshattered. However, even when the defendants/respondents herein had in the manner aforesaid discharged the onus cast upon them qua proof of issue No. 2, the plaintiffs/petitioners herein proceeded to file an application under Section 45 of Indian Evidence Act, for sending the signatures of the deceased testator occurring on her testamentary disposition for comparison with her admitted signatures as elucidated in the application at hand, to the Handwriting Expert for facilitating the rendition of an opinion thereon by the latter qua the factum whether the signatures of the deceased testator Birbala existing on her testamentary disposition executed by her qua her estate in favour of the predecessor-in-interest of the defendants/respondents herein, belong to her. The necessity of the application aforesaid at the instance of the plaintiffs/petitioners herein arose on account of the latters being enjoined to discharge the onus cast upon them by issue No. 3 which stands hereinabove extracted. The application stood rejected by the learned trial Judge. 3. The deceased Birbala was aged 75 years when she executed a testamentary disposition qua her estate in favour of the predecessor-in-interest of the defendants/respondents herein. 4. The application stood rejected by the learned trial Judge. 3. The deceased Birbala was aged 75 years when she executed a testamentary disposition qua her estate in favour of the predecessor-in-interest of the defendants/respondents herein. 4. Even though the mode and manner of proof to be adduced qua the valid and due execution of the testamentary disposition of the deceased testator qua her estate in favour of the predecessor-in-interest of the defendants/respondents herein, by its propounder stands statutorily engrafted with specificity in Section 63 of the Indian Succession Act and when the mandate constituted therein enjoins upon the propounder of the will, to prove it, by examining any of the attesting witnesses to it, necessarily may be then no scope is left for any party to the lis contesting its valid and due execution to proceed to concert to, yet when the factum of its valid and due execution stands proved in consonance with the statutory prescription enshrined in Section 63 of the Indian Succession Act, in as much, as, any marginal witnesses to it, having proved its valid and due execution, erode the sanctity or solemnity of proof adduced by a marginal witness to it qua the factum of its valid and due execution, by preferment of an application under Section 45 of the Indian Evidence Act, for eliciting an opinion from the expert qua the authenticity of the signatures borne on the testamentary disposition of the deceased testator, on his comparing the signatures of the deceased testator existing on her testamentary disposition with her admitted signatures. In other words, the specific statutory mandate prescribing a specific mode and manner of proof of valid and due execution of a testamentary disposition, ousts the applicability of section 45 of the Indian Evidence Act. In other words, the specific statutory mandate prescribing a specific mode and manner of proof of valid and due execution of a testamentary disposition, ousts the applicability of section 45 of the Indian Evidence Act. Moreso, when the parties contesting the authenticity of the signatures borne on the testamentary disposition of the deceased testator had availed of an opportunity to crossexamine the attesting witness to it, who in tandem with the prescription manifested in Section 63 of the Indian Succession Act had during the course of his examination-in-chief proved the factum of its valid and due execution and who during the course of his having been subjected to a scathing cross-examination had remained un-shattered, necessarily then the elicitation of an opinion from an expert is a concert to oust the testimony on oath of an attesting witness to a testamentary disposition who in consonance with the statutory mandate of Section 63 of Indian Succession Act had proved its valid and due execution besides is an endeavor to both dilute as well as erode both the object and purpose behind the engraftment of section 63 in the Indian Succession Act. Necessarily then to preserve the mandate of section 63 of the Indian Succession Act, the endeavor of the petitioners herein to thwart its operation in the garb of the application at hand necessitates its being baulked. 5. The learned counsel for the plaintiffs/petitioners herein has with great fervor argued before this Court that when issue No.3 has been struck on the pleadings of the parties, the plaintiffs/petitioners herein were enjoined to discharge the onus qua it as cast upon them especially when it devolves upon the factum of the testamentary disposition being the outcome of fraud hence entails upon them to imperatively lead appropriate evidence, comprised in the report of a handwriting expert prepared by the latter on his comparing the signatures of the deceased testator existing on her testamentary disposition with the ones existing on the documents recited in the application at hand. However, the aforesaid submission addressed by the learned counsel for the plaintiffs/petitioners herein succumbs, in the face of the aforesaid discussion portraying the factum of the defendants/respondents herein having discharged the onus cast upon them of proving the valid and due execution of the testamentary disposition of deceased Birbala in the mode and manner as mandated in Section 63 of the Indian Succession Act, which statutorily enshrines the mode and manner of proof of valid and due execution of a testamentary disposition and which manner cannot stand derogation by adoption of the mode as concerted to be adopted by the plaintiffs/petitioners herein by resorting to institute an application under Section 45 of Indian Evidence Act. The true import and purpose of issue No.3 qua which it is open to the petitioners/plaintiffs before the learned trial Court, to adduce evidence impinges besides devolves not upon the valid and due execution of the testamentary disposition of deceased Birbala which factum stands comprised in issue No.2 and onus whereof has been discharged by the propounder by his leading into the witness box an attesting witness to it, hence his having fulfilled besides satiated the mandate of Section 63 of the Indian Succession Act prescribing with explicity the aforesaid mode and manner of proof of valid and due execution of the testamentary disposition of the deceased testator, hence disempowers the petitioners herein plaintiffs before the learned trial Court to, yet on the succeeding issue, devolving merely upon the factum of the testamentary disposition of the deceased testator being the outcome of a fraud, to in the garb of its phraseology also contest the authenticity of the signatures of deceased Birbala existing on her testamentary disposition qua her estate especially when the ambit of issue No.3 stands trammeled and confined to the domain of the petitioners herein plaintiffs before the learned trial Court being empowered only to lead evidence qua the factum of suspicious circumstances surrounding the execution of the testamentary disposition of deceased Birbala hence, staining its execution with the taint of fraud. Now especially with the essential nuance of the phraseology of the preceding issue i.e issue No.2 having with specificity taken within its ambit the factum of its valid and due execution and proof whereof was enjoined to be adduced by the defendants/respondents herein and which onus for the reasons aforesaid has been discharged by them, as such, vindicating the submission of the learned counsel for the petitioners herein that the interpretation to be lent to the phraseology of issue No.3 is of its asking for proof from the petitioners herein qua its valid and due execution would subvert the import and essential nuance of the phraseology of issue No.3, besides would denude the effect of the distinctive phraseology in which issue No.2 is cast and which alone asks for proof on the part of its propounder qua its valid and due execution. Therefore this court holds that the essential nuance of the phraseology of issue No.3 is its asking for proof from the petitioners herein not qua the valid and due execution of testamentary disposition of deceased testator Birbala but its asking for proof from the petitioners herein only qua the suspicious circumstances Surrounding its execution. Any other interpretation to the essential nuance of the phraseology in which both issues No. 2 and 3 are cast would render them to be mutually militative. Consequently, it is open for the learned counsel for the petitioners herein plaintiffs before the learned trial Court to discharge the onus cast upon them qua issue No.3 by adducing evidence before it qua the suspicious circumstances surrounding the execution of the testamentary disposition of deceased Birbala, hence, its being stained with the vice of fraud. For reiteration, the preferment of an application under Section 45 of the Indian Evidence Act by the petitioners herein is a clever machination adopted by them to in the garb of misconstruction of the phraseology of issue No.3 adduce evidence qua its valid and due execution onus of proof whereof stands encapsulated in the phraseology of issue No. 2 and which has been for the reasons aforesaid discharged by the defendants/respondents herein. Even though this Court is constrained to record that the preferment of an application under Section 45 of the Indian Evidence Act at the instance of the petitioners herein was improper. Even though this Court is constrained to record that the preferment of an application under Section 45 of the Indian Evidence Act at the instance of the petitioners herein was improper. Besides when it would not be legally sagacious to interfere with the order impugned before this Court, yet given the averments made in the reply of the defendants/respondents herein to the application at hand that the plaintiffs/petitioners herein can be directed to place on record the admitted signatures of deceased testator Birbala existing on documents if any executed by her in the year 1991. Consequently, it is deemed apt that in case the petitioners herein/plaintiffs before the learned trial Court place before it documents containing the admitted signatures of the deceased Birbala executed by her in the year 1991 then, the learned trial Judge shall proceed to order for theirs being sent to the expert concerned to enable the latter for his after comparing them with the signatures of the deceased testator existing on her testamentary disposition, render an opinion whether both belong to the deceased Birbala. In view of above the present petition stands disposed of. The parties through their learned counsel are directed to appear before the learned trial Court on 27.10.2015. Records be sent back forthwith. It is made clear that any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above.