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2015 DIGILAW 477 (HP)

Parmeshwari Devi v. Kamlesh Devi

2015-05-07

RAJIV SHARMA

body2015
Judgment Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree dated 31.10.2003 rendered by the Addl. District Judge, Una in Civil Appeal (RBT) No. 123/2000/97. 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 against the respondents-defendants (hereinafter referred to as the “defendants” for convenience sake) for declaration to the effect that plaintiff was owner in possession of the land measuring 15 kanals 10 marlas out of the land measuring 61 kanals 17 marlas as detailed in the head note of the plaint on the basis of “will” executed by Darshan Lal on 5.4.1984 and the defendants have no right, title and interest of any kind in the suit land and the alleged mutation dated 25.6.1988 in favour of the defendants was wrong, incorrect and contrary to law. Consequential relief was also sought restraining the defendants to interfere with the possession of the plaintiff over the suit land and also restraining them from taking possession of the suit land. Darshan Lal (deceased) was married to defendant No.1 Kamlesh Devi on 22.6.1983. Defendant No.1 used to live with her parents. On 4.4.1984 due to some heated arguments between deceased Darshan Lal and defendant No.1, Darshan Lal consumed poison. The parents of Darshan Lal tried their best to save his life. However, Darshan Lal died on 5.4.1984. He executed valid “will” regarding his estate in favour of the plaintiff. Thereafter, defendant No.1 gave birth to defendant No.2, namely, Parmila Devi. 3. The suit was contested by the defendants by filing written statement. According to them, Darshan Lal had differences with his parents also. He was not admitted in civil hospital. Darshan Lal became unconscious and remained as such till his death. 4. Plaintiff filed replication to the written statement. Issues were framed by the Sub Judge, Una on 9.11.1989. He decreed the suit on 31.1.1997. Defendants preferred an appeal before the Additional District Judge, Una. He allowed the same on 31.10.2003. Hence, the present Regular Second Appeal. It was admitted on the following substantial questions of law: 1. 4. Plaintiff filed replication to the written statement. Issues were framed by the Sub Judge, Una on 9.11.1989. He decreed the suit on 31.1.1997. Defendants preferred an appeal before the Additional District Judge, Una. He allowed the same on 31.10.2003. Hence, the present Regular Second Appeal. It was admitted on the following substantial questions of law: 1. When the defendant-respondent did not challenge the “will” on any specific ground except that the executant died after consuming poison, could the lower appellate court on its own assume suspicious circumstances enumerated in the impugned judgment and decree and proceed to determine the same in holding the “will” Ex.P-1 to be a sham document, shrouded by suspicious circumstances? 2. Whether the lower appellate court has acted in excess of its jurisdiction in not taking into consideration the pronouncements of this Hon’ble Court as well as the apex court to be considered while determining the due execution and the validity of the will, Ex.P-1? Are not the findings of the lower appellate court illegal, erroneous and perverse being a result of misreading the material evidence and wrong appreciation of the correct law? 3. Whether the impugned judgment and decree passed by the lower appellate court is a result of misreading of oral and documentary evidence and rendering illegal, erroneous and perverse findings by assuming and presuming the facts extraneous to record? 5. Mr. Bhupender Gupta, learned Senior Advocate, for the appellant, on the basis of the substantial questions of law framed, has vehemently argued that the first appellate court has come to a wrong conclusion that the “will” dated 5.4.1984 was shrouded with mystery. According to him, “will” was valid. He has lastly contended that the first appellate court has misread and mis-appreciated the oral as well as documentary evidence. 6. Mr. N.K. Thakur, learned Senior Advocate, has supported the judgment and decree passed by the first appellate court. 7. I have heard the learned counsel for the parties and have gone through the records carefully. 8. Since all substantial questions of law are interlinked, they are being discussed together to avoid repetition of discussion of evidence. 9. Plaintiff Parmeshwari has appeared as PW-1. She has deposed that her son used to quarrel with his wife. Kamlesh Devi used to live in village Basal and she used to tell her son that she would not reside in Pandoga and would reside in Basal. 9. Plaintiff Parmeshwari has appeared as PW-1. She has deposed that her son used to quarrel with his wife. Kamlesh Devi used to live in village Basal and she used to tell her son that she would not reside in Pandoga and would reside in Basal. Six years ago, in the evening, her son was irrigating the land. She and her husband were also undertaking agriculture pursuits. Husband and wife picked up a quarrel and her son told Kamlesh Devi that if she does not want to stay with him, he would commit suicide. He went to his house and consumed poison and told the parents that he has ended the controversy once for all. He told that his property should go to his mother. He was taken to hospital Panjawar. He was treated by the doctor and brought back 3-4 A.M. in the morning and her son told her that his chances of survival were bleak and he wanted to execute the “will”. The entire family was on the spot. She has admitted in her cross-examination that there is a regular bus service after 15 minutes between Pandoga and Una. She has also admitted that her husband and her son had told her that Doctor at Panjawar told that he could not treat Darshan Lal since he has taken a very strong poison. They were sad. There was no use of taking him to the hospital. She has also admitted that when Darshan Lal was brought from Panjawar, all of them sat with him and he died. She has also admitted that Darshan Lal wanted to construct his own house at Pandoga. Darshan Lal used to threaten them that if they won’t permit him to construct house at Pandoga, he would reside at Basal. She has also admitted that there used to be quarrel between them and Darshan Lal. She initially stated that Darshan Lal has written the “will” and then stated it was scribed. 10. PW-2 Ranbir Singh has scribed the “will”. He has deposed that Darshan Lal wanted to execute the “will”. He was in sound state of mind. He was normal. Marginal witnesses Thakar Dass and Devi Dass were also present. He identified “will” Ex.P-1. She initially stated that Darshan Lal has written the “will” and then stated it was scribed. 10. PW-2 Ranbir Singh has scribed the “will”. He has deposed that Darshan Lal wanted to execute the “will”. He was in sound state of mind. He was normal. Marginal witnesses Thakar Dass and Devi Dass were also present. He identified “will” Ex.P-1. He has read the contents of “will” to Darshan Lal and he after admitting the contents of the same to be correct signed the same followed by marginal witnesses Thakar Dass and Devi Dass. In his cross-examination, he has admitted that his house was situated at a distance of 2 KMs from the house of Darshan Lal. 11. PW-3 Thakar Dass is the marginal witness. He went to the house of Darshan Lal at 5-6 A.M. Darshan Lal was sitting on the cot. Darshan Lal told Kartar Chand that there were very bleak chances of his survival and they should get the “will” executed. The “will” was scribed by Ranbir Singh. In his cross-examination, he has admitted that he left the house at 6.00 A.M. He has also admitted in his cross-examination that when he reached at 5.00 A.M., Darshan Lal was telling that his chances of survival were bleak. He has denied the suggestion that Darshan Lal could not speak, volunteered that his voice was feeble. He has also admitted that there were about 7 houses at a distance of 100 meters. 12. PW-4 Devi Dass is another marginal witness. In his cross-examination, he has deposed that when the “will” was scribed, the sun was rising. Darshan Lal was sitting on the cot. He left for his house within one hour. 13. PW-5 Kartar Chand is the father of Darshan Lal. He has deposed that his son was irrigating the land. He heard that his son and Kamlesh were quarreling. They took him to Dr. Verma at Panjawar. Darshan Lal was administered glucose and he recovered. He was not in a position to state that why Darshan Lal was not taken to Government Hospital. Post-mortem was not got conducted. 14. PW-6 Mohan Lal has deposed that Darshan Lal had consumed poison. They came with the patient in the morning at 3.00 A.M. from Panjawar on 5.4.1984. He has also admitted that Darshan Lal died on 5.4.1984 at 3.45 A.M. 15. Defendant No.1 Kamlesh Devi has appeared as DW-1. Post-mortem was not got conducted. 14. PW-6 Mohan Lal has deposed that Darshan Lal had consumed poison. They came with the patient in the morning at 3.00 A.M. from Panjawar on 5.4.1984. He has also admitted that Darshan Lal died on 5.4.1984 at 3.45 A.M. 15. Defendant No.1 Kamlesh Devi has appeared as DW-1. In her examination-in-chief, she has testified that Darshan Lal died within 2-3 hours after consuming poison. He became unconscious after consuming poison. Her husband was taken to Panjawar. She remained at home. 16. Darshan Lal had consumed poison in the evening of 4.4.1984. He was brought back at 3.00/4.00 A.M. on 5.4.1984, as per the statement of PW-1 Parmeshwari Devi. PW-1 Parmeshwari Devi has admitted in her cross-examination that doctor had refused to treat Darshan Lal since according to him, he had consumed strong poison. She has also admitted that Darshan Lal wanted to construct a house at Pandoga and used to threaten that if he was not permitted to construct a house at Pandoga, he would settle at Basal. PW-2 Ranbir Singh has scribed the “will” Ex.P-1. His residence was at a distance of 2 KMs from the house of Darshan Lal. PW-3 Thakar Dass is the marginal witness. He went to the house of Darshan Lal at 5-6 A.M. He signed the “will” as a marginal witness and left the house at 6.00 A.M. However, PW-4 Devi Dass has deposed that when the “will” was scribed, the sun was rising. The first appellate court has taken judicial notice that in the month of April, sun rises after 6.00 A.M. PW-6 Mohan Lal has categorically admitted in his cross-examination that Darshan Lal died in the morning of 5.4.1984 at 3.45 A.M. Darshan Lal had consumed aluminium phosphide (Celphos). Learned first appellate court has referred to Modi Medical Jurisprudence and Toxicology Twenty Second Edition and according to it, the fatal period after consuming aluminium phosphide (celphos) is about 24 hours. Darshan Lal had consumed poison in the evening and his health was bound to deteriorate instead of improving. PW-1 has stated, as noticed hereinabove, that doctor told that Darshan Lal could not survive since he has taken very strong poison. In case Darshan Lal has died at 3.45 A.M., there was no possibility of execution of “will” Ex.P-1. There is also variance when the “will” was scribed and signed by the marginal witnesses. PW-1 has stated, as noticed hereinabove, that doctor told that Darshan Lal could not survive since he has taken very strong poison. In case Darshan Lal has died at 3.45 A.M., there was no possibility of execution of “will” Ex.P-1. There is also variance when the “will” was scribed and signed by the marginal witnesses. It was for the propounder to dispel the suspicious circumstances qua the “will”. Plaintiff has failed to remove the suspicious circumstances. The mutation No.5084 was attested on 25.6.1988. The copy of mutation is Ex.P-5. There is a reference of the statement made by PW-3 Thakar Dass, the marginal witness of will Ex.P-1 in the mutation Ex.P-5. According to him, the “will” was scribed by Darshan Lal at the instance of Kartar Chand. It further casts doubt about the validity of the “will”. There was a regular bus service after 15 minutes between Pandoga and Una and despite that Darshan Lal was not taken to hospital. The reason assigned by the plaintiff was that doctor at Panjawar had told her that chances of survival were bleak. In fact, he was brought back at 3.00/3.30 A.M. and he died at 3.45 A.M. The deceased after consuming strong poison could not be in a sound disposing mind to execute the “will”. PW-3 Thakar Dass, in his cross-examination, has admitted that the voice of Darshan Lal was feeble. PW-3 Thakar Dass and PW-4 Devi Dass did not belong to the same village and no marginal witnesses were associated from the neighbourhood at the time of execution of “will” though there were 7-8 houses at a distance of 100 meters. The propounder and her husband have actively participated at the time of execution of the “will”. It further casts doubt about the validity of the “will”. 17. Learned first appellate court has correctly appreciated the oral as well as documentary evidence led by the parties and there is no need to interfere with the well reasoned judgment and decree passed by the first appellate court. All the substantial questions of law are answered accordingly. 18. No other point was urged. 19. 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.