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2015 DIGILAW 31 (HP)

Gurdas Ram v. Satpal (Died) through LRs

2015-01-07

RAJIV SHARMA

body2015
Judgment Rajiv Sharma, J. This appeal is directed against the judgment and decree dated 7.3.2009 rendered by the Additional District Judge, Una in Civil Appeal No. 55 of 2006. 2. “Key facts” necessary for the adjudication of this appeal are that predecessor-in-interest of respondent-plaintiff, namely, Satpal and Saran Singh (hereinafter referred to as the “plaintiffs” for convenience sake) instituted a suit against the appellants-defendants (hereinafter referred to as the “defendants” for convenience sake), namely, Gurdas Ram, Gurdev Chand and Shakuntla Devi for declaration. According to the plaintiffs, the suit land as detailed in the head note of plaint was owned and possessed by them alongwith defendant No.1 Gurdas Ram to the extent of following shares: Plaintiffs : 3/4th share Defendant No.1 : 1/4th share Plaintiff also sought consequential relief of permanent injunction restraining defendants No.2 and 3, namely, Gurdev Chand and Shakuntla Devi from cutting and removing any tree, taking forcible possession, raising any construction alienating and transferring the suit land. Plaintiffs also sought to restrain defendant No.1 from taking forcible exclusive possession, cutting and removing the trees, raising any construction etc. The suit land was earlier owned and possessed by Khushi Ram, grand-father of plaintiffs and father of defendants. Khushi Ram during his life time has executed a “will” on 16.7.1986 vide Ex.PW-1/A of his entire movable and immovable property in favour of plaintiffs to the extent of 3/4th share and defendant No.1 to the extent of 1/4th share. Khushi Ram died on 9.12.1986. Defendants in connivance with each other got procured a false entry in the revenue record qua the suit land as owners in possession at the back of plaintiffs. Defendants were threatening to take forcible possession by ousting the plaintiffs from 3/4th share by raising construction cutting and removing the trees. 3. The suit was contested by defendants No.1 and 3, namely, Gurdas Ram and Shakuntla. It is not disputed by them that the suit land earlier was owned and possessed by Khushi Ram, grand-father of the plaintiffs and father of defendants. The “will” dated 16.7.1986 has been revoked by deceased Khushi Ram by “will” Ex.DW-1/A. 4. Replication was filed by the plaintiffs. The trial court framed issues on 27.11.1996 and 27.6.2003. The Civil Judge (Junior Division), Court No.II, Amb decreed the suit on 24.5.2006. Defendant No.1 Gurdas Ram filed an appeal against the judgment and decree dated 24.5.2006 before the Additional District Judge, Una. Replication was filed by the plaintiffs. The trial court framed issues on 27.11.1996 and 27.6.2003. The Civil Judge (Junior Division), Court No.II, Amb decreed the suit on 24.5.2006. Defendant No.1 Gurdas Ram filed an appeal against the judgment and decree dated 24.5.2006 before the Additional District Judge, Una. He dismissed the appeal on 7.3.2009. Hence, the present Regular Second Appeal. It was admitted on the following substantial questions of law: “1. Whether the findings of the court below are perverse, based on misreading of oral and documentary evidence and drawing of wrong inferences from the facts proved on record? 2. Whether there were any suspicious circumstances attached to the execution of the will Ex.DW-1/A especially when its due execution was proved. The same being the last will had to prevail over the will Ex.PW-1/A? 3. Whether the alleged suspicious circumstances attached to the execution of the will Ex.DW-1/A were duly explained and wrong inferences have been drawn from the facts proved on record in rejecting the said will which has vitiated the findings.” 5. Mr. K.D. Sood, learned Senior Advocate, on the basis of substantial questions of law framed, has vehemently argued that the courts below have not correctly appreciated Ex.PW-1/A dated 16.7.1986 and Ex.DW-1/A dated 7.12.1986. According to him, the “will” Ex.DW-1/A dated 7.12.1986 has been duly proved. 6. Mr. N.K. Thakur, learned Senior Counsel 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 interlinked and interconnected, the same are taken up together for determination to avoid repetition of discussion of evidence. 9. The earlier “will” is Ex.PW-1/A dated 16.7.1986. PW-1 Naresh Kumar has scribed the “will” at the instance of Khushi Ram. According to “will”, Khushi Ram had bequeathed 3/4th share in favour of Sarwan and Satpal and 1/4th share in favour of Gurdas. According to him, Khushi Ram was in full senses at the time of execution of “will”. The “will” was read over to Khushi Ram in the presence of witnesses Khushi Ram, Pradhan and Charan Dass, who were present at the time of writing the “will”. Khushi Ram put his thumb impression over the “will” after admitting the same to be correct. Thereafter, witnesses also put their signatures in the presence of testator. The “will” was read over to Khushi Ram in the presence of witnesses Khushi Ram, Pradhan and Charan Dass, who were present at the time of writing the “will”. Khushi Ram put his thumb impression over the “will” after admitting the same to be correct. Thereafter, witnesses also put their signatures in the presence of testator. The “will” was registered at Sr. No.293 dated 16.7.1986. 10. PW-2 Parveen Kumar was the Registration Clerk. He has proved “will” Ex.PW-1/A from the original record. According to him, reference regarding “will” was made in the record in Vahi No.3, Zild No.43 dated 16.7.1986 at pages 15 and 16. 11. PW-3 is plaintiff Satpal. PW-4 Khushi Ram has deposed that the parties are known to him. On 16.7.1986, Khushi Ram got a “will” scribed Ex.PW-1/A through Deed Writer Naresh Kumar. Khushi Ram was in his senses at the time of execution of “will”. It was scribed in his presence and in the presence of Charan Dass. Whatever was dictated by Khushi Ram, the same was scribed in the “will”. The contents of “will” were read over to Khushi Ram in his presence and in presence of Charan Dass. Khushi Ram put his thumb impression after admitting the same to be correct. Thereafter, he put his signatures on the “will” at the instance of testator Khushi Ram. Charan Dass also put his signatures at the instance of Khushi Ram. Thereafter, Khushi Ram presented the “will” before the Tehsildar for registration. The Tehsildar read over the “will” to testator Khushi Ram in his presence and in presence of Charan Dass. Khushi Ram put his thumb impression over the “will” after admitting the same to be correct. Thereafter, he alongwith Charan Dass put their signatures at the instance of Khushi Ram. There was no pressure on testator for the execution of “will”. 12. The second “will” was executed on 7.12.1986 vide Ex.DW-1/A. “Will” dated 7.12.1986 is not registered. It was scribed by DW-2 Joginder. DW-3 Maya Ram was the attesting witness. According to him, Khushi Ram was suffering from fever for 2-3 months but he was alright on the day when the “will” was scribed. The “will” Ex.DW-1/A was scribed on 7.12.1986 and Khushi Ram has died on 9.12.1986. Defendants have not explained why the “will” Ex.DW-1/A was not registered. 13. DW-3 Maya Ram was the attesting witness. According to him, Khushi Ram was suffering from fever for 2-3 months but he was alright on the day when the “will” was scribed. The “will” Ex.DW-1/A was scribed on 7.12.1986 and Khushi Ram has died on 9.12.1986. Defendants have not explained why the “will” Ex.DW-1/A was not registered. 13. DW-2 Joginder has admitted in his cross-examination that there was litigation between Khushi Ram, testator and Maya Ram and Hoshiar Singh, Lambardar. The fact of matter is that Maya Ram and Hoshiar Singh are the attesting witnesses of “will” dated 7.12.1986. In these circumstances, it cannot be believed that the “will” could be attested by the persons Maya Ram and Hoshiar Singh, who were in litigation with the testator. Similarly, DW-2 Joginder did not remember whether Maya Ram, attesting witness, put his signatures or appended his thumb impression over the “will” Ex.DW-1/A. Whereas in affidavit filed in examination-in-chief, he has deposed that Maya Ram has put his thumb impression over the “will” in his presence. According to DW- 1 Gurdas Ram, the will Ex.DW-1/A was scribed on a non-judicial paper bearing numbers. It is evident from Ex.DW-1/A that it is not scribed on non-judicial paper and there were no numbers on it. Defendant No.3 Shakuntla Devi is the daughter and she has not been bequeathed any property in the “will”. According to “will” Ex.PW-1/A, the plaintiffs have been given 3/4th share and defendant No.1 has been given 1/4th share. The “will” Ex.DW-1/A dated 7.12.1986 is shrouded with suspicious circumstances. 14. Mr. K.D. Sood, learned Senior Advocate has vehemently argued that plaintiffs Satpal and Sarwan were minor at the time of execution of the “will”. Thus, they have not served the testator. Even if the services are rendered by the family, “will” can be executed by the testator in favour of any member of the family. The testator has died in the house of Gurdev Singh, father of plaintiffs. The “will” Ex.PW-1/A has been duly proved by the plaintiffs. It has been scribed by PW-1 Naresh Kumar. PW-4 Khushi Ram was the marginal witness of the “will”. Khushi Ram was in his senses at the time of execution of “will” dated 16.7.1986. There is no evidence led by the defendants that earlier “will” Ex.PW-1/A dated 16.7.1986 was obtained by the plaintiffs by coercion or undue influence on Sh. Khushi Ram. 15. PW-4 Khushi Ram was the marginal witness of the “will”. Khushi Ram was in his senses at the time of execution of “will” dated 16.7.1986. There is no evidence led by the defendants that earlier “will” Ex.PW-1/A dated 16.7.1986 was obtained by the plaintiffs by coercion or undue influence on Sh. Khushi Ram. 15. Both the courts below have correctly appreciated “will” Ex.PW-1/A dated 16.7.1986. The defendants have failed to prove the “will” Ex.DW-1/A dated 7.12.1986 in accordance with law. It is shrouded with suspicious circumstances. Moreover, “will” Ex.PW-1/A dated 7.12.1986 is registered and duly proved as per law. All the substantial of questions of law are answered accordingly. 16. In view of the analysis and discussion made hereinabove, there is no merit in the appeal and the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.