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2015 DIGILAW 1508 (HP)

Bhagat Ram v. Khushi Ram

2015-10-14

RAJIV SHARMA

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JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree dated 10.3.2005 rendered by the Additional District Judge, Fast Track Court, Una in Civil Appeal No. 155/97 RBT 72/04/1997. 2. “Key facts” necessary for the adjudication of this appeal are that the appellant-plaintiff (herein after referred to as ‘plaintiff’ for convenience sake) instituted a suit for declaration against the respondents-defendants (hereinafter referred to as the “defendants” for convenience sake) to the effect that plaintiff was owner in possession of the land as per the details given in the plaint on the basis of “will” dated 11.12.1985 executed by Rattan Chand son of Hako son of Kahna resident of village Santokhgarh. Defendants have no right, title or interest in the suit land left by Rattan Chand. He has also prayed for relief of injunction restraining the defendants from interfering or alienating in any manner or taking forcible possession of the suit land. The suit land was owned and possessed by Rattan Chand. He has executed “will” in favour of the plaintiff in sound and disposing mind. Rattan Chand died on 8.12.1986. He performed his last rites. 3. Suit was contested by defendant Nos. 2, 3 and 4, namely, Shanti Devi, Sukhdev and Avtar Chand. According to them, no “will” was ever executed by Rattan Chand, husband of defendant No.2 and father of defendant Nos. 3 and 4. Rattan Chand was of unsound mind and he had no capacity to understand and manage his affairs. Plaintiff attempted to get forged “will” registered from the office of Sub-Registrar. It was rejected. Defendant filed an appeal before the Registrar. It was also dismissed. They were in possession of the suit property. 4. Replication was filed by the plaintiff. Issues were framed by the Sub Judge 1st Class on 20.11.1992. He dismissed the suit on 29.8.1997. Plaintiff preferred an appeal against the judgment and decree dated 29.8.1997 before the Additional District Judge, Fast Track Court, Una. He dismissed the same on 10.3.2005. Hence, the present appeal. It was admitted on 26.11.2007 on the following substantial questions of law: 1. “Whether the document Ex.PW-5/A is true and genuine document and the findings of the learned courts below having held the same to be shrouded by suspicious circumstances vitiated the impugned judgments and decrees? 2. He dismissed the same on 10.3.2005. Hence, the present appeal. It was admitted on 26.11.2007 on the following substantial questions of law: 1. “Whether the document Ex.PW-5/A is true and genuine document and the findings of the learned courts below having held the same to be shrouded by suspicious circumstances vitiated the impugned judgments and decrees? 2. Whether DW-2 having not stepped into witness box adverse interference was liable to be drawn and in view of the documents Ex.PW-4/A and Ex.P-5 and Ex.P-6 findings as returned by learned courts below stand vitiated? 5. Mr. Ajay Sharma, on the basis of the substantial questions of law framed, has vehemently argued that the “will” Ex.PW-5A was legal and valid. He has also contended that both the courts below have misconstrued the oral as well as documentary evidence. 6. Mr. N. K. Thakur, learned Senior Advocate 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. Since both the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid repetition of discussion of evidence. 9. Plaintiff has appeared as PW-1. He has testified that deceased Rattan Chand was his uncle. He used to live with him. He died on 8.12.1996 in Canal Hospital, Nagal. Police handed over the dead body of Rattan Chand to him. He has repaid the debt taken by Rattan Chand to one Kedar Nath. Defendant No. 2 is the wife of defendant No. 1 Khushi Ram. Defendants used to reside at Nangal and they have no right, title or interest with the property of Rattan Chand. Rattan Chand has executed a Will in his favour. He has admitted that Rattan Chand was in armed forces. He has sold some portion of his land to him. Rattan Chand has executed a gift deed in his favour for 2 kanals and 6 marlas of land. Ram Nath was real brother of Rattan Chand. He has denied that Sukh Dev and Avtar Singh were sons of deceased Rattan Chand. He has also denied that Shanti Devi was wife of Rattan Chand. The Will was scribed in his shop. The Will was scribed at Una as Rattan Chand was not feeling well on that day. He was in sound disposing state of mind. He has denied that Sukh Dev and Avtar Singh were sons of deceased Rattan Chand. He has also denied that Shanti Devi was wife of Rattan Chand. The Will was scribed in his shop. The Will was scribed at Una as Rattan Chand was not feeling well on that day. He was in sound disposing state of mind. PW-2 Amrit Lal has produced the record. 10. The Will was scribed by PW-5 Madan Lal. He has deposed that Rattan Chand executed the “Will” Ext. PW-5/A in sound disposing state of mind in presence of marginal witnesses Sada Singh and Bachan Singh. The contents of the Will were read over to Rattan Chand. He admitted the same to be correct and thereafter put his signatures. Thereafter the witnesses have signed the same as marginal witnesses. He has admitted that the Will was scribed in the shop of Bhagat Ram. He went to the house of Bhagat Ram to inquire about the health of Rattan Chand. 11. PW-6 Sada Singh is the marginal witness. He has admitted that he has made statement before Tehsildar Una. He has not supported the version of the plaintiff. 12. Defendant Sukh Dev Chand has appeared as DW-3. According to him, he was son of Rattan Chand. His father was serving in Armed Forces. He was residing at Santokhgarh. He and his brother were born at Nangal, as their father was serving at Nangal before joining Armed Forces. His father had sold land to third person and he and his brother filed preemption suit against their father through their maternal grand father. The suit was decided in their favour and thereafter, they are in possession of the suit land. Bhagat Ram was not legal heir of his father. The Will produced by the plaintiff was forged and they came to know about the Will when Bhagat Ram tried to get it registered in the Office of Sub Registrar, Una. Sub- Registrar refused to register the Will. 13. DW-4 Ram Nath was the real brother of Rattan Chand. He has deposed that Rattan Chand has contacted marriage with Shanti Devi, daughter of Biru Ram and out of their wedlock Sukh Dev and Avtar Chand were born. DW-5 Choudhary Hazari Lal, Advocate has proved on record certified copy in Civil Suit No. 150/61, decided on 15.11.1966, certified copy of statement of Amrit Lal, Pleader Ext. He has deposed that Rattan Chand has contacted marriage with Shanti Devi, daughter of Biru Ram and out of their wedlock Sukh Dev and Avtar Chand were born. DW-5 Choudhary Hazari Lal, Advocate has proved on record certified copy in Civil Suit No. 150/61, decided on 15.11.1966, certified copy of statement of Amrit Lal, Pleader Ext. DW-5/B, copy of written statement Ext. DW- 5/C and statement of Ram Nath Ext. DW-5/D. 14. DW-2 Biru has deposed that Shanti Devi was his daughter. She was married to Rattan Chand. 15. In school leaving certificate Ext. D-4 of Sukh Dev, copy of affidavit Ext. D-9, copy of missal Hakiyat for the year 1967-68, Ext. D-6, copy of Jamabandi for the year 1973-74 Ext. D-7 and copy of Jamabandi for the year 1983-84, Ext. D-8, Sukh Dev and Avtar Chand have been shown as sons of Rattan Chand son of Haku. According to pedigree table, Ext. D-9, one Kahna had two sons Rala and Haku. Thereafter Rala had two sons, Daya Ram and Khushi Ram, whereas Haku had two sons, Ram Nath and Rattan Chand. Sukhdev and Avtar Chand are shown as sons of Rattan Chand. Defendants have conclusively proved that Shanti Devi was legally wedded wife of Rattan Chand and defendants No. 3 and 4, namely Sukh Dev and Avtar Chand were sons of Rattan Chand. According to the recitals in the Will, Ext. PW-5/A, the testator claimed himself to be unmarried. The fact of the matter is that Sukh Dev and Avtar Chand had filed a suit for pre-emption against Rattan Chand. It was decided in their favour being sons of Testator in the year 1961. The prepounder of the Will has tried to prove that wife and children were of defendant No. 1. It is reiterated that defendants have duly proved that Shanti Devi was married to Rattan Chand and Sukh Dev and Avtar Chand were born out of this wedlock. PW-6 Sada Singh is resident of different village. His presence has rightly been doubted at the time of the execution of the Will by the learned Courts below. The natural heirs have been left out in the Will Ext. PW-5/A. There is no tangible evidence on record to establish that how and in what manner the prepounder was related to Rattan Chand and what services he has rendered to him. The natural heirs have been left out in the Will Ext. PW-5/A. There is no tangible evidence on record to establish that how and in what manner the prepounder was related to Rattan Chand and what services he has rendered to him. Names of wife and children of Rattan Chand have not been mentioned in the Will. The plaintiff has tried to get the Will registered in the office of Sub-Registrar, Una. He refused to register the Will. Plaintiff filed an appeal before the Registrar. It was also dismissed by the Registrar. Plaintiff has failed to remove the suspicious circumstances surrounding the “will” dated 11.12.1985 Ex.PW-5/A. 15. Both the courts below have correctly appreciated the oral as well as documentary evidence led by the parties and there is no need to interfere with the well reasoned judgments and decrees passed by both the courts below. 16. The substantial questions of law are answered accordingly. 17. 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.