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2015 DIGILAW 1565 (HP)

Laboo Devi v. Ronki Ram (deceased) through LRS

2015-10-27

RAJIV SHARMA

body2015
JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree dated 1.8.2003 rendered by the District Judge, Sirmaur District at Nahan in Civil Appeal No. 107-CA/13 of 2001. 2. “Key facts” necessary for the adjudication of this appeal are that the appellants-plaintiffs (herein after referred to as the ‘plaintiffs’ for convenience sake) filed a suit against respondent No.1 and predecessor-in-interest of respondent Nos. 2 and 3, namely, Satya Devi and Chinta Devi for declaration and consequential relief of permanent prohibitory injunction. Case of the plaintiffs is that predecessor-in-interest of the parties Sh. Ram Swaroop was the owner in possession of the land comprising Khata Khatauni No.68/96, kita 2 total measuring 6-1 bighas including Abadi situated in village Moginand, Tehsil Nahan. Ram Swaroop had two sons, namely, Walaiti Ram, predecessor-in-interest of plaintiffs and defendant Ronki Ram. Walaiti Ram was serving in the Police Department. Ram Swaroop had equal love and affection with both of his sons. He executed last and final “will” in their favour on 21.5.1990. It was scribed by Mohammad Iqbal, Advocate in presence of marginal witnesses Munshi Ram, Lambardar of the village and Prem Chand. The “will” was handed over to defendant No.1 for incorporating the revenue entries. However, when plaintiff Nos. 1 and 2 attended the mutation proceedings at Trilokpur on 27.11.1998, they came to know that the mutation of inheritance was being attested in favour of defendant No.1 exclusively. Defendant No.1 asserted that he was exclusive owner of the suit land on the basis of “will” dated 23.5.1990 executed by Ram Swaroop. Plaintiffs have alleged that the “will” dated 23.5.1990 was forged and fabricated document. 3. Suit was contested by defendant No.1 by filing written statement. According to the averments made in the written statement, Ram Swaroop was never helped and looked after by deceased Walaiti Ram. Ram Swaroop has executed “will” on 23.5.1990 in presence of the marginal witnesses. 4. Replication was filed by the plaintiffs. Issues were framed by the Senior Sub Judge 1st Class on 28.10.1999. He dismissed the suit on 27.8.2001. Plaintiffs preferred an appeal against the judgment and decree dated 27.8.2001 before the District Judge, Sirmaur District at Nahan. He dismissed the same on 1.8.2003. Hence, the present appeal. It was admitted on 16.8.2005. 4. Replication was filed by the plaintiffs. Issues were framed by the Senior Sub Judge 1st Class on 28.10.1999. He dismissed the suit on 27.8.2001. Plaintiffs preferred an appeal against the judgment and decree dated 27.8.2001 before the District Judge, Sirmaur District at Nahan. He dismissed the same on 1.8.2003. Hence, the present appeal. It was admitted on 16.8.2005. According to the order dated 16.8.2005, various substantial questions of law, as detailed in the grounds of appeal, arise for determination in this appeal and substantial question of law in respect of the applicability of the provisions of sections 107 and 109 of the Indian Succession Act, 1925 is also involved in this appeal. 5. Mr. Sanjeev Kuthiala, on the basis of the substantial questions of law, has vehemently argued that the “will” dated 21.5.1990 was valid. He has also contended that the “will” Ex.D-2 dated 23.5.1990 was shrouded by suspicious circumstances. He has also contended that both the courts below have not properly construed the provisions of sections 107 and 109 of the Indian Succession Act. 6. Ms. Ruma Kaushik 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 all 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. The “will” dated 21.5.1990 is Ex. PA. The “will” dated 23.5.1990 is Ex.D-2. PW-1 Laboo Devi has deposed that Ram Swaroop was her father in law. He was looked after by both of his sons. Her husband was serving in the police department. Last rites of Ram Swaroop were performed by all the family members. Her father-in-law had executed a “will” 9-10 years back in favour of her husband and Ronki Ram. The “will” was with Ronki Ram. They went to the Tehsildar, Trilokpur for mutation. There they came to know that mutation was not attested in favour of both the sons and the mutation was attested only in favour of Ronki Ram. She has admitted that she was not in possession of the suit land. She has produced certified copy of “will” mark ‘A’. Notice was issued to the defendant for the production of “will”. Copy of the notice is Ex. PA, postal receipt is Ex.PB and A.D. is Ex. PC. She has admitted that she was not in possession of the suit land. She has produced certified copy of “will” mark ‘A’. Notice was issued to the defendant for the production of “will”. Copy of the notice is Ex. PA, postal receipt is Ex.PB and A.D. is Ex. PC. However, the same was not replied. The copy of Jamabandi is Ex. PD. In her cross-examination, she has admitted that her husband used to remain outside the village. He was posted at Poanta, Rajgarh, Solan, Rajban etc. The children were born out of the village. The “will” was executed 23 years back, but they came to know only at the time of attestation of mutation. She was not aware of the “will” dated 23.5.1990. 10. PW-2 Prem Latta has produced the record. PW-3 Prem Chand has deposed that he knew Ram Swaroop. Ronki Ram and Walaiti Ram were his sons. The “will” was scribed by the advocate. He was brought by Ram Swaroop. He has signed the “will” as marginal witness. PW-4 Mohammad Iqbal has deposed that he knew Munshi Ram and Prem Chand. He has scribed the “will” at the instance of Ram Swaroop. The contents of the “will” were read over to Ram Swaroop and he after admitting the same to be correct signed the same in his presence. Thereafter, both the witnesses put their signatures. The copy of the will is Ex. PA. PW-5 Matu Ram has deposed that he knew both the sons of Ram Swaroop. Last rites of Ram Swaroop’s wife were performed by both the sons. Last rites of Ram Swaroop were also performed by both the sons. 11. PW-6 Mano Devi has proved the Pariwar register Ex.PW-6/A. PW-7 Man Singh has deposed that Ram Swaroop was his grand father. Last rites were performed by him and his uncle Ronki Ram. 12. Neither plaintiff while appearing as PW-1 nor PW-7 Man Singh has deposed that the “will” Ex. PA dated 21.5.1990 was the last and final “will” of Ram Swaroop. PW-4 Mohammad Iqbal though has scribed the “will”, but has testified that he did not know Ram Swaroop personally. He could also not state why earlier “will” dated 15.11.1977 Ex.P-1 was cancelled by Ram Swaroop. PW-3 Prem Chand has shown his ignorance whether the “will” dated 15.11.1997 was executed by Ram Swaroop because the testator was not happy with his deceased son Walaiti Ram. He could also not state why earlier “will” dated 15.11.1977 Ex.P-1 was cancelled by Ram Swaroop. PW-3 Prem Chand has shown his ignorance whether the “will” dated 15.11.1997 was executed by Ram Swaroop because the testator was not happy with his deceased son Walaiti Ram. In Ex.P-1, it is specifically stated that second son of testator Ram Swaroop was not rendering any kind of services to him and he was not under the control of testator, therefore, the “will” was executed by Ram Swaroop in favour of Ronki Ram. He has also admitted that defendant Ronki Ram was in cultivatory possession of the suit land. Even plaintiff has admitted that the possession of the suit property was with Ronki Ram. Walaiti Ram was serving in the police department. He remained outside the village. Thus, it was Ronki Ram, who was looking after his father Ram Swaroop. 13. PW-1 Laboo has deposed that they had gone to Trilokpur for attestation of mutation on 26.11.1995 and came to know that the mutation was already attested in favour of Ronki Ram and thereafter they came back to their house. Ram Swaroop had earlier executed “will” in favour of Ronki Ram on 15.11.1977 Ex.D-1. Thus, there was no occasion for him to cancel the earlier “will” at the time of executing alleged second “will” dated 21.5.1990. It is reiterated that neither PW-1 Laboo nor PW-7 Man Singh has deposed that the will dated 21.5.1990 was the last and final “will”. Statements of PW-3 Prem Chand and PW-4 Mohammad Iqbal do not inspire confidence. 14. The “Will” Ex.D-2 dated 23.5.1990 was dictated by DW-2 N.S. Thakur, Advocate and was written by DW-3 Fiaz Ali. DW-3 Fiaz Ali has signed the “will” as marginal witness. The other marginal witness was Jagdish Chand. DW-1 Ronki Ram has deposed that his brother used to live with his family outside the village. He was residing with his father and used to look after him. His father had executed “will” in his favour vide Ex.D-1. His elder brother Walaiti Ram knew about the “will”. Neither Walaiti Ram nor his family members have looked after Ram Swaroop. In his cross-examination DW-1 Ronki Ram has deposed that the suit land was in his possession. DW-2 N.S. Thakur has deposed that Ex.D-2 was dictated by him at the instance of Ram Swaroop. It was written by DW-3 Fiaz Ali. Neither Walaiti Ram nor his family members have looked after Ram Swaroop. In his cross-examination DW-1 Ronki Ram has deposed that the suit land was in his possession. DW-2 N.S. Thakur has deposed that Ex.D-2 was dictated by him at the instance of Ram Swaroop. It was written by DW-3 Fiaz Ali. He has not written the same since his thumb was injured. The same was witnessed by Jagdish Chand. The “will” was read over to Ram Swaroop, Jagdish Chand and Fiaz Ali. Thereafter, they have put their signatures. DW-3 Fiaz Ali has deposed that he has written Ex.D-2. It was dictated by DW-2 N.S. Thakur. He knew Ram Swaroop personally. 15. Defendant has proved the execution of “Will” Ex.D-2 on the basis of statements of DW-2 N.S. Thakur and DW-3 Fiaz Ali, marginal witness. Provisions of sections 107 and 109 of the Indian Succession Act will not be applicable in this case since the “Will” dated 23.5.1990 was executed in favour of defendant No.1 only. Plaintiffs have failed to prove the execution of “will” dated 21.5.1990. The original “will” was not produced. Only copy of this will was produced. Merely that Ex. PA was registered would not make it valid. 16. Plaintiffs were required to prove that the “will” was validly executed. Plaintiffs have not made out any case for leading secondary evidence under section 65 of the Indian Evidence Act. The mutation of inheritance No. 680 dated 27.11.1998 was attested in favour of defendant No.1 on the basis of “will” dated 23.5.1990 vide Ex. PE. The plaintiff has not moved any application when the case was listed for evidence of defendants. 17. Since the “will” dated 23.5.1990 was only in favour of defendant No.1, the law cited by Mr. Sanjeev Kuthiala is not applicable to the facts and circumstances of this case. 18. 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. 19. The substantial questions of law are answered accordingly. 20. 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.