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2015 DIGILAW 609 (HP)

Dhameshwar v. Gish Pati

2015-05-28

RAJIV SHARMA

body2015
Rajiv Sharma, J. 1. This Regular Second Appeal is directed against the judgment and decree, dated 01.06.2002, passed by the learned Additional District Judge, Mandi in Civil Appeal No. 43 of 1999. 2. Key facts necessary for the adjudication of this Regular Second Appeal are that the appellant-plaintiff (hereinafter referred to as ‘the plaintiff’ for the sake of convenience), has filed a suit against the respondent-defendant, namely, Gish Pati and proforma respondents defendants (hereinafter referred to as ‘the defendants’ for the sake of convenience) for declaration and for permanent prohibitory injunction as a consequential relief. According to the plaintiff, Smt. Drumati Devi had not executed the Will, dated 15.06.1985, Ex. DW2/A in favour of defendant, Sh. Gish Pati. Drumati Devi was 78 years of age in the year 1985. The defendant No. 1 in collusion with the subordinate revenue staff and behind the back of the plaintiff and proforma defendants, got the mutation attested in his favour with regard to the share of late Smt. Drumati Devi. He came to know about this in the month of January, 1994. The Will is unregistered. Smt. Drumati Devi was an old, illiterate and simple lady. She had never expressed her will or desire to disentitle the plaintiff and other proforma defendants from her share in the suit property. The execution of the Will was result of undue influence, misrepresentation and coercion. The Will, dated 15.06.1985, was null and void. He also sought the decree of permanent prohibitory injunction against the defendant No. 1. The details of the suit land have been given in paragraphs No. 1(a) & 1(b) of the plaint. 3. The suit was contested by the defendant No. 1. According to him, Smt. Draumati Devi was fully capable and sensible lady. She in lieu of the services rendered by him, executed a Will in his favour. Thereafter, on the basis of the Will, dated 15.06.1985, the mutation was also attested. The revenue entries were in accordance with the law. 4. Replication was filed by the plaintiff. The issues were framed by the learned Sub Judge, Ist Class, Court No. 3, Mandi, H.P. on 09.09.1994 and 24.02.1999. The Sub Judge, Ist Class, Court No. 3, Mandi, H.P. decreed the suit on 31.03.1999. The revenue entries were in accordance with the law. 4. Replication was filed by the plaintiff. The issues were framed by the learned Sub Judge, Ist Class, Court No. 3, Mandi, H.P. on 09.09.1994 and 24.02.1999. The Sub Judge, Ist Class, Court No. 3, Mandi, H.P. decreed the suit on 31.03.1999. The defendant No. 1, Gish Pati filed an appeal against the judgment and decree, dated 31.03.1999, before the learned Additional District Judge, Mandi, H.P. He allowed the appeal on 01.06.2002. Hence, this Regular Second Appeal. 5. This Regular Second Appeal was admitted on the following substantial questions of law on 24.07.2002: “1. Whether upon proper construction and interpretation of the document Ex.DW2/A, the un-registered Will, the presumption of validly executed Will in favour of the beneficiary/propounder could be raised? 2. Whether the learned courts below have misread and misconstrued the oral and documentary evidence especially the statements of PW1 Shyam Lal alias Ghanshyam, PW2 Satya Devi, DW 2 Het Ram, Ex. DW2/A Unregistered Will, Ex. PA Special Power of Attorney? 3. Whether the question as to whether the Will was set up by the propounder to be the last will of testator has to be attested in law of the conditions imposed under Sections 67 and 68 of the Indian Evidence Act as also Section 59 and 63 of the Indian Succession Act, specially when challenge is laid as to the genuineness and validity of the document? 4. Whether the Court can deny an opportunity to the plaintiff for appearing as his own witness in rebuttal after the discharge of onus of the particular issue by the defendant with respect to the will and whether it is proper for the court after denying the opportunity to dismiss the application under the provision of Section 41 rule 27 CPC seeking to lead evidence in rebuttal to the onus so discharged by the defendant? 5. Whether provision of Section 57 of the Indian Evidence Act stood satisfied in the facts of the case when rational of the Will the testatamentary capacity and mental faculty of the testator could be established and whether the Will could be held to be genuine or not? 6. Mr. Sanjeev Kuthiala, learned counsel for the appellant has vehemently argued that Ex. DW2/A was an unregistered Will. He then contended that the learned first Appellate Court has mis-read and mis-construed the oral as well as documentary evidence. 6. Mr. Sanjeev Kuthiala, learned counsel for the appellant has vehemently argued that Ex. DW2/A was an unregistered Will. He then contended that the learned first Appellate Court has mis-read and mis-construed the oral as well as documentary evidence. According to him, there is non-compliance with the mandatory conditions under Sections 67 and 68 of the Indian Evidence Act and Sections 59 and 63 of the Indian Succession Act. He further contended that the application preferred by his client under Order 41 Rule 27 has been wrongly decided. According to him, Smt. Drumati Devi was more than 78 years old at the time of execution of alleged Will, dated 15.06.1985. 7. Ms. Devyani Sharma, learned counsel for the respondent No. 1 has supported the judgment and decree, dated 01.06.2002, passed by the learned Additional District Judge, Mandi, H.P. 8. I have heard the learned counsel for the parties and gone through the pleadings and the records, carefully. 9. Since all the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid the repetition of discussion of evidence. 10. The Will, dated 15.06.1985, Ex. DW2/A was scribed by Dile Ram. Himan and Het Ram have appeared as marginal witnesses. The plaintiff has not appeared as a witness. One Shri Ghanshyam has appeared as PW-1. The Special Power of Attorney was executed in favour of Shri Sham Lal, son of of Shri Sardaru Ram and not in favour of PW-1, Ghanshyam. The plaint was signed by the plaintiff. 11. PW-1, Ghanshyam has produced Special Power of Attorney, Ex.PA. According to him, the age of Drumati Devi was 80 years. She was an old, illiterate and simple lady. She was looked after by both the sons, i.e., the plaintiff and defendant No. 1. The Will is fake and fictitious. In his cross-examination, he has deposed that Dhameshwar used to live towards Kaza side. He has executed Special Power of Attorney Ex.-PA in his favour. Draumati died in 1984-85. He has come to his village after 1 ½ -2 years after the death of his mother. 12. PW-2, Satya Devi, is the wife of Dhameshwar. She testified that her mother-in-law had never executed any Will. Her husband used to work in Kaza. They came to know about the Will after eight years of the death of Draumati Devi. 13. He has come to his village after 1 ½ -2 years after the death of his mother. 12. PW-2, Satya Devi, is the wife of Dhameshwar. She testified that her mother-in-law had never executed any Will. Her husband used to work in Kaza. They came to know about the Will after eight years of the death of Draumati Devi. 13. Defendant No. 1, Gish Pati Ram, has appeared as DW-1. According to him, his mother died on 25.08.1985. Dhameshwar has not visited the house after the death of his mother. He came after two months. He used to live in Kaza. He further stated that he used to lookafter his mother. He performed her last rites. The Will was executed in his favour. The mutation was attested in 1986. The Will was got executed by Drumati Devi at home. Het Ram and Himan were present at that time. In his cross-examination, he deposed that the Will was scribed by Dile Ram, who belongs to his village. His mother used to live with him. 14. DW-2 Het Ram has proved Will Ex. DW2/A. He signed the same as a marginal witness. The Will was scribed by Dile Ram. The contents of the same were read over and explained to her. Thereafter, she put her thumb impression on the same. Himan, the marginal was present on the spot. Draumati was in her senses at the time of execution of the Will. In his cross-examination, he has deposed that the Will was scribed in his presence. Himan has come to call him. DW-3, Damoder hastestified that the defendant No. 1 used to look after his mother. 15. What emerges after analysis of the statements of the witnesses, is that the Will is dated 15.06.1985. It was scribed by Dile Ram. The contents of the Will were read over and explained to Draumati Devi. She has put her thumb impression on the same. Thereafter, the marginal witnesses, Himan and Het Ram have signed the same. The defendant No. 1 used to look after his mother. The plaintiff was out of village. The last rites were performed by defendant No. 1. Draumati was in her senses at the time of execution of the Will. 16. The Court has already noticed that the plaintiff has not appeared as a witness. He has executed his Special Power of Attorney in favour of Sh. Sham Lal. The plaintiff was out of village. The last rites were performed by defendant No. 1. Draumati was in her senses at the time of execution of the Will. 16. The Court has already noticed that the plaintiff has not appeared as a witness. He has executed his Special Power of Attorney in favour of Sh. Sham Lal. But, one Shri Ghanshyam has appeared as PW-1 claiming himself to be as the Special Power of Attorney of the plaintiff. The plaintiff has also filed an application under Order 41 Rule 27 and Order 41 Rule 33 of the Code of Civil Procedure in order to establish that Shyam Lal, son of Sh. Sardaru Ram, R/o Bhalwani was also known as Shyam Lal alias Ghanshyam Lal, S/o Sardaru Ram, R/o Village Bhalwani. This is an afterthought. The application has been filed merely to fill up the legal lacuna. The affidavit cannot be read as evidence. Even if it is assumed that Shyam Lal, S/o Sh. Sardaru Ram is also known as Shyam Lal alias Ghanshyam Lal, the application should have been filed at the earliest, rather, the plaintiff has also moved an application under Order 41 Rule 27, CPC before the learned First Appellate Court, which stood already rejected. 17. Mr. Sanjeev Kuthiala, learned counsel for the plaintiff has drawn the attention of the Court to Ex.DW2/A. According to him, there is a column of date, but there is no date mentioned. However, the date 15.06.1985 is mentioned below the signatures of DW-2 Het Ram. He then contended that the marginal witnesses have used different ink. But, merely the fact that the marginal witnesses have used different ink, will not make the Will suspicious. He then contended that column No. 2 of the right side of the Will is blank. It would not make any difference. Even, in the Will Ex. DW2/A, below this column, Himan has put his signatures with Het Ram as marginal witnesses and the addresses of both the marginal witnesses have been given specifically on the left side of the Will. The Will was executed on 15.06.1985. The mutation was attested in 1986 and Civil Suit has been filed in 1994. It is not believable that the brother, i.e., the plaintiff was not aware of the entries made in the revenue record pursuant to Will, dated 15.06.1985. The Will was executed on 15.06.1985. The mutation was attested in 1986 and Civil Suit has been filed in 1994. It is not believable that the brother, i.e., the plaintiff was not aware of the entries made in the revenue record pursuant to Will, dated 15.06.1985. The first Appellate Court has correctly appreciated the oral as well as documentary evidence. The non registration of the Will will not make it suspicious. The Will has been executed strictly as per the provisions of the Indian Evidence Act and the Indian Succession Act. The substantial questions of law are answered accordingly. 18. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed. CMP No. 5439 of 2015 19. In view of the discussions made hereinabove, there is no merit in this application and the same is dismissed.