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2015 DIGILAW 474 (HP)

Subhash Kumar v. Mandra Devi (deceased)

2015-05-07

TARLOK SINGH CHAUHAN

body2015
Tarlok Singh Chauhan, J. 1. The defendant is the appellant, who has lost in both the Courts below. 2. The predecessor-in-interest of the respondents, Mandra Devi, had filed a suit for declaration to the effect that she is owner in respect of estate of her husband namely Ramesh Chand which is fully detailed in the head note of the plaint. Ramesh Chand, husband of the plaintiff, died on 30.07.1983 and the plaintiff being the only legal heir is entitled to succeed the estate of her husband. It was alleged that the defendant is very head strong person and being influential in the locality managed to procure some forged document alleged to be the Will having been executed by deceased Ramesh Chand in his favour during his life. The alleged Will is invalid, inoperative and ineffective and has no bearing on the right, title or interest of the plaintiff over the suit land. It was further alleged that on the basis of the alleged Will the defendant has started extending threats to interfere over the suit land. 3. The suit was contested by the defendant by filing written statement wherein he raised preliminary objections that the plaintiff was neither widow of deceased Ramesh Chand nor his legal heir and thus had no concern with the suit property. On merits, it was admitted that Ramesh Chand son of Biru was owner of the suit land, but it was specifically denied that he was married to plaintiff. Ramesh Chand, infact, was unmarried and was living with the defendant. Since the plaintiff was neither the widow of Ramesh Chand nor his legal heir, therefore, the plaintiff was not entitled to the suit property. It was admitted by the defendant that Ramesh Chand died on 30.07.1983 and during his lifetime he bequeathed his entire property including the suit land in favour of the defendant vide registered sale deed dated 25.07.1983. Lastly, it was alleged that the defendant is in possession of the suit property on the basis of the aforesaid Will. 4. Plaintiff filed replication whereby she reiterated and reaffirmed the averments made in the plaint and denied the averments made by the defendant in the written statement. 5. On the pleadings of the parties, the following issues were framed by the learned trial Court on 04.02.1985:- 1. Whether the plaintiff is the widow of deceased Ramesh Chand. If so, its effect? OPP 2. 5. On the pleadings of the parties, the following issues were framed by the learned trial Court on 04.02.1985:- 1. Whether the plaintiff is the widow of deceased Ramesh Chand. If so, its effect? OPP 2. Whether the deceased Ramesh Chand executed a valid Will in favour of the defendant as alleged? OPD 3. Whether the plaintiff has cause of action? OPP. 4. Relief. 6. After recording the evidence and evaluating the same, the learned trial Court on 31.03.1994 decreed the suit filed by the plaintiff with costs. The appeal preferred against the judgment and decree by the appellant was dismissed. Aggrieved by the judgments and decrees passed by the learned Courts below, the appellant has filed the present appeal and this Court was pleased to admit the same on the following substantial question of law: - “Whether the learned Courts below have misread and misconstrued the oral and documentary evidence on record especially the statements of PW-2 Mandra Devi, PW-5 Surat Ram, PW-6 Ujjagar Singh, DW-1 Subhash Kumar, DW-3 Om Parkash, DW-4 Balak Ram (both marginal witnesses), Ex.D1 extract of family register, Ex.DX extract of pass book, Ex.DA extract of voter list and Ex.DW-2/A Registered Will dated 25-7-1997 (it should be 25.07.1983)?” 7. I have heard the learned counsel for the parties and have gone through the records of the case. 8. Shri Sanjeev Kuthiala, learned counsel for the appellant has strenuously argued that the Will Ex.DW-2/A has been duly executed in accordance with the requirements of law. He further contended that once the appellant had proved the due execution of the Will, then the onus shifted on the plaintiff/respondent to prove by cogent and reliable evidence that the Will is shrouded with suspicious circumstances. He further contended that merely because there is no recital in the Will regarding disinheritance of the plaintiff, who was not even the wife of the deceased Ramesh Chand and the mother of Ramesh Chand namely Durgi Devi admittedly who was alive at that time would not in any manner prove that the Will in question was a fake document. After-all, the entire purpose of executing the Will was to disinherit the natural heirs. The learned counsel for the appellant would further contend that the learned Courts below have failed to take into consideration the oral and documentary evidence available on record and thereby reached a wrong conclusion. 9. After-all, the entire purpose of executing the Will was to disinherit the natural heirs. The learned counsel for the appellant would further contend that the learned Courts below have failed to take into consideration the oral and documentary evidence available on record and thereby reached a wrong conclusion. 9. The learned counsel for the appellant has drawn the attention of this Court to various judgments wherein it has been held that debarring natural successors should not raise any suspicion. Reliance has been placed upon the judgment of this Court in Shakuntala Devi versus Savitri Devi and others AIR 1997 HP 43 , wherein it was held that merely because certain natural heirs had been excluded would not be a suspicious circumstance because the whole idea behind making a Will is to interfere in normal line of succession. The relevant paras read thus:- “25. The Hon’ble Supreme Court in Smt. Sushila Devi v. Pandit Krishna Kumar Missir, AIR 1971 SC 2236 , has held that prima facie, the circumstance that no bequest was made to the natural heir(s) by the testator would make the will appear unnatural, but if the execution of the Will is satisfactorily proved, the fact that the testator had not bequeathed any property to one of his children cannot make the Will invalid.” 26. Again, in Rabindra Nath Mukherjee v. Panchanan Benerjee (dead) by LRs., (1995) 4 SCC 459 : ( AIR 1995 SC 1684 ), it has been held by the Hon’ble Apex Court that deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of will is to interfere with the normal line of succession. So natural heirs would be debarred in every case of will; of course, it may be that in some cases they are fully debarred and in others only partially. The Hon’ble Apex Court in the said case, where the will was executed by the testator in favour of the sons of a half-blood brother by excluding the descendants of a full blood sister, held the Will to be valid and that disinheritance of the descendants of a full blood sister could not have been taken as a suspicious circumstances.” 10. It would be seen that this Court in Shakuntala Devi’s case (supra) has only followed what the Hon’ble Supreme Court had held in Sushila Devi and Rabindra Nath Mukherjee’s cases. It would be seen that this Court in Shakuntala Devi’s case (supra) has only followed what the Hon’ble Supreme Court had held in Sushila Devi and Rabindra Nath Mukherjee’s cases. To similar effect is the judgment of the Hon’ble Supreme Court in Pentakota Satyanarayana and others versus Pentakota Seetharatnam and others AIR 2005 SC 4362 and judgment of the Hon’ble Supreme Court in Savithri and others versus Karthyayani Amma and others (2007) 11 SCC 621 , wherein again it has been held that mere exclusion of natural heirs would not in itself be a suspicious circumstance. 11. The learned counsel for the appellant has though relied upon the judgment of Hon’ble Supreme Court in Bharpur Singh and others versus Shamsher Singh (2009) 3 SCC 687 , but the ratio thereof as would be discussed later goes against the appellant. 12. The learned counsel for the appellant further relied upon a judgment of learned single Judge of Punjab and Haryana High Court in Gurpal Singh versus Darshan Singh 1998 (1) S.L.J. 174, wherein it was held that registered Will raises a presumption of the Will having been executed in a sound disposing mind, especially, when there is no evidence to show that at the time of execution of the Will the testator was suffering from any mental ailment or other disability or was incapable of making disposition. 13. On the other hand, Shri Neeraj Gupta, learned counsel for the respondent No.1(b) has vehemently argued that registration of a Will in itself does not raise any presumption of the genuineness of the Will and has relied upon the following observations from judgment rendered by this Court in Baru Ram and others versus Smt.Kishani Devi 1992 (1) Sim. L.C. 115. “5. Sh. K.D.Sood, learned Counsel for Sh. Baru Ram and others, has urged that since the will was registered, presumption of its correctness and genuineness arises in the facts and circumstances of the present case. This argument deserves to be rejected outrightly in view of the law laid down in Gopal Das and another v. Sri Thakurji and others, AIR 1943 Privy Council 83, that even after the endorsement of Registrar made under section 60(2) of the Registration Act is proved, it remains to be shown that the person admitting execution before the Registrar was Balandu. The registration of the will does not create any presumption of its genuineness, which is to be proved independently and statement of the Registrar is only a piece of evidence which is to be assessed to Judge how far it proves that the execution of will is in accordance with section 63 of Indian Succession Act. It is to be kept in mind that the Registrar cannot be statutory attesting witness. ( Please refer to Karri Nookaraju v. Putra Ventataro and others, AIR 1974 And Pra 13; In the Goods of Late Shri C.Rai, Barrister-at-law, 1980 RLR 346, Punjab and Haryana High Court; Labh Singh and others v.Piara Singh (deceased) by L.Rs )and another, AIR 1984 P & H 270 and Dharam Singh v.A.S.O. and another, 1990 (Supp) SCC 684.” 14. He has further argued that once the two Courts below have concurrently on a question of fact regarding the execution of the Will held against the appellant, then these findings cannot be challenged and interfered with in the present second appeal. In support of his submission, he has relied upon a judgment of this Court in Babu Ram versus Shrimati Roshan Devi 1997(2) Current Law Journal (H.P.) 251 wherein it was held as under:- “10. The learned counsel for the defendant at the very outset has raised a preliminary objection that the concurrent findings of the two courts below on a question of fact regarding the execution of a Will cannot be challenged and interfered with in the present Second Appeal. 11. In Ladli Parshad Jaiswal v. The Karnal Distillery Co. 1, Ltd. Karnal & Ors., AIR 1963 SC 1279 , it was held that whether a particular transaction was vitiated, on the ground of undue influence, is primarily a decision on the question of fact and that the High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact howsoever gross or in executable the error may seem to be. 12. In Ramanuja Naidu v. V. Kanniah Naidu & Anr., JT 1996(3) SC 164, the question of genuineness of a sale –deed was involved. The trial Court and the first appellate court had upheld the genuineness of the sale -deed. The High Court in second appeal had set aside the concurrent findings of the two courts below as to the genuineness of the sale-deed. The trial Court and the first appellate court had upheld the genuineness of the sale -deed. The High Court in second appeal had set aside the concurrent findings of the two courts below as to the genuineness of the sale-deed. On further appeal before the Apex court, it was held: ".....The concurrent findings of the courts below that Ex.B-2, sale deed in favour of the first defendant is earlier in point of time and was genuine and valid is a finding of fact. Such a finding was not open to any challenge in Second Appeal. The learned single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code of Civil Procedure in the way he did. No question of law arose for consideration before the learned single Judge. The sole question that arose for consideration was, whether Ex.B-2, sale deed, in favour of the first defendant dated 5.5.1967, which is admittedly earlier in point of time to Ex.A-1 dated 5.6.1967, in favour of the plaintiff is genuine and valid ..." 13. The Apex court further held that in interfering with the concurrent findings of fact of the lower courts, the High Court acted in excess of the jurisdiction vested in it, under Section 100, Code of Civil Procedure. The High Court totally erred in its approach to the entire question, and in reappraising and reappreciating the entire evidence, and in considering the probabilities of the case, to hold that the judgments of the courts below were perverse and that the plaintiff was not entitled to the declaration of title to suit property and recovery of possession.” 15. To similar effect is the judgment of this Court in Balbir Singh versus Smt.Kaushalaya Devi (now deceased) through her L.R. Bakshi Ram 2000(1) Current Law Journal (H.P.) 240. 16. It is more than settled that the onus to prove the Will lies upon the propounder. The learned Courts below have concurrently found that at the time of execution of the Will Ex.DW-2/A, not only Mandra Devi wife of Ramesh Chand, but even his mother Durgi Devi was very much alive. If that be so, atleast a reference qua them ordinarily and in normal course would have been made in the Will. The learned Courts below have concurrently found that at the time of execution of the Will Ex.DW-2/A, not only Mandra Devi wife of Ramesh Chand, but even his mother Durgi Devi was very much alive. If that be so, atleast a reference qua them ordinarily and in normal course would have been made in the Will. This assumes greater importance because there is nothing on the record to suggest that the deceased Ramesh Chand prior to his death was not having cordial relations with his mother or wife. Therefore, in such circumstances, the learned Courts below have rightly concluded that it is highly improbable that an ordinary man at the time of execution of the Will in favour of a person, who is not even related to him, would not make reference regarding his legal heirs, particularly, his wife and mother. 17. Undoubtedly, mere deprivation of the natural heirs in itself may not raise any suspicion but then this contention has to be appreciated in the peculiar facts and circumstances of each case. Why would anyone execute a Will in favour of a person, who is not even related to him, when his mother and wife with whom he is sharing cordial relations are alive and living with him? This fact is further required to be viewed with suspicion when the appellant has failed to lead clear, cogent and convincing evidence that he had served Ramesh Chand during his lifetime. The appellant was further required to prove that there were special reasons why Ramesh Chand leaving aside his aged mother and wife executed a Will in his favour. 18. The appellant has tried to prove that he was looking after deceased Ramesh Chand during his lifetime and had got him admitted at T.B. Hospital, Tanda and spent money on his treatment, but he has failed to prove any record in support of his claim. Shri Balwant Singh from Tanda Hospital was though examined as DW-5, who in his statement has stated that the name of the attendant, who was accompanying the patient from 12.05.1980 to 27.05.1980 is mentioned in the record Ex.DW5/A. But, then a perusal of this document shows that it does not indicate that some attendant or atleast the appellant was infact accompanying Ramesh Chand at that time. 19. The learned counsel for the appellant would further argue that Mandra Devi was not the wife of Ramesh Chand. 19. The learned counsel for the appellant would further argue that Mandra Devi was not the wife of Ramesh Chand. He has further contended that in the family register Ex.D1 pertaining to the year 1983 to 1990 relating to the family of Ramesh Chand, the plaintiff Mandra Devi has been shown as daughter of Balandu Ram aged about 24 years. This extract of family register pertains to the village of the plaintiff prior to her marriage. The learned counsel for the appellant has thereafter drawn the attention of this Court to Ex.DX wherein Mandra Devi has been shown to be the wife of one Harmesh Chand and would contend that it has not been proved on record as to whether Harmesh was also known by the name of Ramesh Chand. He would further argue that in the voter list Ex.DA, Mandra Devi has been shown to be the wife of one Sadhu Ram at Serial No.546. 20. However, the learned counsel for the respondents, on the other hand, would argue that as per the statement of Bal Krishan, Election Kanungo, in the voter list at Serial No.833, Ramesh Chand son of Biru is shown to be married and the name of his wife has been reflected as Sundri. Since Ramesh Chand was not having any wife except the plaintiff, hence, this entry pertains to the plaintiff only. Regarding marriage between the plaintiff and deceased Ramesh Chand, he further made reference to the statement of PW-2 Mandra Devi herself, who stated that she had been married to Ramesh Chand and this marriage had been witnessed by the respectable of the village. 21. The learned counsel for the respondents also invited my attention to the statement of PW-3 Jeet Singh, who has stated that plaintiff was married to Ramesh Chand, son of Biru and he had also participated in the marriage which was solemnized about 26-27 years ago. Jeet Singh further deposed that the marriage was solemnized in accordance with the customary rites. This statement is corroborated and supported by PW-4 Surat Ram, who is uncle of the plaintiff. This witness has deposed that marriage was solemnized in accordance with the customary rites. PW-5 Ujjagar Singh is from the family of deceased Ramesh Chand and father of Ramesh Chand namely Biru was grandfather of this witness. This statement is corroborated and supported by PW-4 Surat Ram, who is uncle of the plaintiff. This witness has deposed that marriage was solemnized in accordance with the customary rites. PW-5 Ujjagar Singh is from the family of deceased Ramesh Chand and father of Ramesh Chand namely Biru was grandfather of this witness. He has deposed that Ramesh Chand was his uncle and had solemnized marriage with the plaintiff at Indora and since then Mandra Devi and Ramesh Chand had been living together as husband and wife. 22. At this stage, it may be noticed that the learned lower appellate Court has rightly invoked the provisions of Section 50 of the Evidence Act to conclude that the plaintiff was married to deceased Ramesh Chand. Section 50 of the Evidence Act reads as follows:- “50. Opinion on relationship, when relevant.- When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as the existence of such relationship, or any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact: Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of 1869) or in prosecution under sections 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860).” 23. Now, once the plaintiff alongwith other respectable persons from her as well as her husband’s relations have stepped into the witness box and stated regarding the marriage of the plaintiff and Ramesh Chand and they have further stated that they had participated in the marriage or had seen solemnization of marriage was a relevant factor and could, therefore, be taken into consideration. Statements of Jeet Singh PW-3, who belongs to the village of Ramesh Chand, PW-4 Surat Ram, who is uncle of the plaintiff, PW-5 Ujjagar Singh, who is the nephew of Ramesh Chand, are very relevant. As discussed above, these witnesses have clearly stated that marriage between Ramesh Chand and the plaintiff was solemnized in accordance with customary rites. 24. The learned Courts below have concurrently found Mandra Devi to be the wife of deceased Ramesh Chand and such finding being a finding of fact is not open to challenge. As discussed above, these witnesses have clearly stated that marriage between Ramesh Chand and the plaintiff was solemnized in accordance with customary rites. 24. The learned Courts below have concurrently found Mandra Devi to be the wife of deceased Ramesh Chand and such finding being a finding of fact is not open to challenge. Moreover, the appellant has no locus-standi to challenge her status, particularly, when he has failed to prove on record the so-called Will and also the fact that he had served Ramesh Chand during his lifetime. Suffice it to say that the learned Courts below have correctly appreciated the statements of Bal Krishan, Election Kanungo, PW-2 Mandra Devi, PW-3 Jeet Singh and PW-4 Surat Ram and PW-5 Ujjagar Singh and after evaluating their statements have come to the firm conclusion that Mandra Devi was the wife of deceased Ramesh Chand. 25. The appellant has vehemently argued that the deceased had executed a registered Will in his favour and, therefore, greater weight as to the presumption of its genuineness should be attached to the same. In Bharpur Singh’s case (supra), it was categorically held by the Hon’ble Supreme Court that it may be true that the Will was registered one, but the same by itself would not mean that the statutory requirements of proving the Will need not be complied with. In terms of Section 63(c), Succession Act, 1925 and Section 68, Evidence Act, 1872, the propounder of the Will must prove its execution by examining one or more attesting witnesses. It was further held that when the Will is surrounded with suspicious circumstances, it would not be treated as the last testamentary disposition of the testator, its proof ceases to be a simple lis between the plaintiff and the defendant and adversarial proceeding in the case becomes a matter of Court’s conscience and propounder of the Will has to remove all suspicious circumstances to satisfy that the Will was duly executed by the testator wherefor cogent and convincing explanation of suspicious circumstances shrouding the making of Will must be offered. 26. The concurrent findings recorded by both the Courts below are in the realm of appreciation. They are pure findings of fact and these findings are properly and reasonably arrived at. No perversity could be pointed out. Second appeal is limited to substantial question of law and cannot be converted into a third innings of fact. 26. The concurrent findings recorded by both the Courts below are in the realm of appreciation. They are pure findings of fact and these findings are properly and reasonably arrived at. No perversity could be pointed out. Second appeal is limited to substantial question of law and cannot be converted into a third innings of fact. The substantial question of law is accordingly answered against the appellant. 27. In view of aforesaid discussion, I find no merit in this appeal and accordingly the same is dismissed. Pending application, if any, also stands disposed of. The parties are left to bear their own costs.