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2015 DIGILAW 748 (HP)

Milkhi Ram v. Des Raj

2015-06-23

RAJIV SHARMA

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JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal has been instituted against judgment and decree dated 22.3.2014 rendered by learned Additional District Judge (II) Kangra at Dharamshala, Himachal Pradesh Circuit Court at Dehra, in RBT Civil Appeal No. 10- G/13/10. 2. "Key facts" necessary for the adjudication of the present appeal are that appellant-plaintiff (hereinafter referred to as 'plaintiff' for convenience sake) filed a suit against the respondent defendant (hereinafter referred to as 'defendant' for convenience sake) that after the death of Jaishi Ram son of Shri Nagu, he was exclusive owner-in-possession of the land, as per details given in the plaint, as per Jamabandi for the year 2001-02. Plaintiff is the nearest agnate of Shri Jaishi Ram and Jaishi Ram did not execute any Will in favour of the defendant. Jaishi Ram died on 18.10.2004. Jaishi Ram was served by him. Jaishi Ram was a simple and illiterate person and he did not have any independent mind to decide. He was duped by many villagers to grab his property. Defendant has got entered mutation on the basis of fabricated document Will Ext. DW-6/A dated 12.6.2003. According to plaintiff, Will was full of doubt and shrouded by suspicious circumstances. The alleged Will was not a genuine Will. Suit was contested by the defendant. It was denied that plaintiff is the nearest agnate and is the only person to succeed the property of Jaishi Ram. It is denied that the plaintiff, after the death of Jaishi Ram, has become owner-in-possession of the suit land and that Jaishi Ram was a relative of the defendant. He was issueless. His wife had also predeceased him. Nobody looked after Jaishi Ram. Out of love and affection, he executed a Will on 12.6.2003 in favour of the defendant. Will was executed by the deceased out of free volition and he was in his full senses. Replication was filed by the plaintiff. Issues were framed by the learned Civil Judge (Senior Division) on 17.1.2007. The civil suit was dismissed on 31.10.2009. Plaintiff preferred appeal before the learned Additional District Judge (II) Kangra at Dharamshala, who dismissed the same on 22.3.2014. Hence, this appeal. 3. The appeal was admitted on 17.12.2014 on the following substantial questions of law: "1. Issues were framed by the learned Civil Judge (Senior Division) on 17.1.2007. The civil suit was dismissed on 31.10.2009. Plaintiff preferred appeal before the learned Additional District Judge (II) Kangra at Dharamshala, who dismissed the same on 22.3.2014. Hence, this appeal. 3. The appeal was admitted on 17.12.2014 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 as also pleadings of the parties and drawing of wrong inferences from the facts proved on record, particularly, the will dated 12.06.2003 Ext. DW-6/A stated to have been executed by Shri Jaisi Ram was shrouded with suspicious circumstances which had not been explained besides the same the genuineness of which was not proved? 2. Whether the evidence on record, particularly, will Ext. DW-6/A the statements of DW-7, DW-9 Sushil Kumar, DW-6 Jagdish and DW-8 Bhagwan Singh have been misread and misconstrued and failed to satisfy the ingredients of Sections 63 and 68 of the Succession Act which has vitiated the findings?" 4. Mr. K.D. Sood, learned Senior Advocate has vehemently argued, on the basis of substantial question of law framed, that Will Ext. DW-6/A was shrouded with suspicious circumstances. He also contended that learned Courts below have mis-read and misconstrued the statements of DW-6 Jagdish Chand, DW-7 Des Raj, DW-8 Bhagwan Singh and DW-9 Sushil Kumar. Ingredients of Sections 63 and 68 of the Succession Act were not fully complied with. 5. Mr. Bhuvnesh Sharma, Advocate has supported the judgments and decrees passed by learned Courts below. 6. I have heard the learned counsel for the parties and also gone through the record carefully. 7. Since both the substantial questions of law are interlinked, as such are taken up together to avoid repetition of discussion of evidence. 8. DW-1 Kuldeep Chand testified that Des Raj was nominee of Jaishi Ram and entry to this effect is DW-1/A. 9. DW-2 Mukesh Kumar testified that Jaishi Ram had deposited money in their Society and amount of Jaishi Ram after his death was given to Des Raj. 10. DW-3 Rameshwar Dutt has led his evidence by filing affidavit. According to him, last rites of Jaishi Ram were performed by Des Raj. 11. DW-4 Tirlok Chand testified that Jaishi Ram was issue less and his wife had predeceased him. 10. DW-3 Rameshwar Dutt has led his evidence by filing affidavit. According to him, last rites of Jaishi Ram were performed by Des Raj. 11. DW-4 Tirlok Chand testified that Jaishi Ram was issue less and his wife had predeceased him. Jaishi Ram, during his lifetime, was looked after by Des Raj and last rites of Jaishi Ram were performed by him. Milkhi never served Jaishi Ram during his lifetime. In his cross-examination, he denied that Jaishi Ram was unmarried and was an innocent person and had no independent mind. 12. DW-5 Bimla Devi has also led her evidence by filing affidavit. According to her, all the ceremonies of Jaishi Ram were performed by Des Raj. 13. Des Raj is the propounder of the Will Ext. DW-6/A. According to him, Jaishi Ram was issueless and there was no other member in the family of Jaishi Ram. Jaishi Ram was residing with him. He served and looked after him. Jaishi Ram, during his life time, executed last and valid Will in his favour. Jaishi Ram was in a sound state of mind at the time of executing the Will. He used to cultivate the land of Jaishi Ram. He became owner of the disputed land. Jaishi Ram was not having good relations with Milkhi Ram. 14. DW-6 Jagdish Chand scribed the Will Ext. DW-6/A. He has scribed the Will at the instance of Jaishi Ram. Contents of the Will were explained to Jaishi Ram. He, after admitting the contents of the same to be correct, affixed his thumb impression in the presence of DW-7 Des Raj, marginal witnesses DW-8 Bhagwan Singh, DW-9 Sushil Kumar and Piar Singh. They have also put their signatures at the instance of Jaishi Ram. Jaishi Ram at the time of execution of the Will, was in a good disposing state of mind. He fully knew the consequences of his acts. Will was registered at Sr. No. 162. Jaishi Ram put his thumb impression on the Will. He denied the suggestion that Jaishi Ram was 100 years old. 15. DW-8 Bhagwan Singh has testified that he was a marginal witness and Will Ext. DW-6/A had been scribed by Jaishi Ram in his presence by the document writer. Jagdish Chand, the document writer had read over and explained the contents of the Will to Jaishi Ram. He denied the suggestion that Jaishi Ram was 100 years old. 15. DW-8 Bhagwan Singh has testified that he was a marginal witness and Will Ext. DW-6/A had been scribed by Jaishi Ram in his presence by the document writer. Jagdish Chand, the document writer had read over and explained the contents of the Will to Jaishi Ram. Jaishi Ram after admitting the contents of the same to be correct had affixed his thumb impression in his presence. He along with Sushil put his signatures on the Will at the instance of Jaishi Ram. Jaishi Ram was in a sound disposing state of mind. 16. DW-9 Sushil Kumar is another attesting witness. He also testified that Jagdish, the Document Writer has scribed the Will at the instance of Jaishi Ram. Jagdish Chand scribed the Will and read over and explained the contents of the Will to Jaishi Ram. He, after admitting the same to be correct, affixed his thumb impression on the Will in the presence of marginal witnesses. He along with Bhagwan Singh had also put his signatures on the Will. 17. Plaintiff has appeared as PW-2. According to him, Jaishi Ram was a simple and illiterate person. He was unmarried. He was about 100 years old at the time of his death. Jaishi Ram was a simple person and by taking advantage of same, wrong and false Will was got executed by Rania in favour of his son on 15.12.1986. Thereafter, Rania got another Will dated 3.9.1989 executed from Jaishi Ram. Thereafter, Jaishi Ram was ousted from the house by Rania. Jaishi Ram was residing alone in his house and he along with his family members started looking after him. Kishori Lal also got one will executed in favour of his sons from Jaishi Ram. He denied that the last ceremonies of Jaish Ram were performed by Des Raj. He denied that he had a dispute with Jaishi Ram and on 28.2.1995, a demarcation was conducted and case was decided by the Court on 9.4.1997. 18. According to PW-1, as per record, Jaishi Ram executed Wills Ext. P1, and P2, and P3 (power of attorney). 19. Mr. K.D. Sood, leaned Senior Advocate has vehemently argued that the marginal witnesses were not of same village. It is not necessary that the marginal witnesses should be from the same village as that of the testator. 18. According to PW-1, as per record, Jaishi Ram executed Wills Ext. P1, and P2, and P3 (power of attorney). 19. Mr. K.D. Sood, leaned Senior Advocate has vehemently argued that the marginal witnesses were not of same village. It is not necessary that the marginal witnesses should be from the same village as that of the testator. Court is only concerned with the last Will executed by Jaishi Ram Ext. DW-6/A. It was scribed by DW-8 Jagdish Chand. Contents of the Will were read over to Jaishi Ram. Jaishi Ram, after understanding the same and admitting them to be correct, had affixed his thumb impression and thereafter, DW-8 Bhagwan Singh and DW-9 Sushil Kumar have put their signatures. The marginal witnesses have put their signatures in the presence of Jaishi Ram. These marginal witnesses have also seen Jaishi Ram put his thumb impression on the Will Ext. DW-6/A. Will has been executed strictly as per provisions of law. Merely the old age of the testator would not make the Will suspicious. Will in question has rightly been held valid and genuine by the learned Courts below. The substantial questions of law are answered accordingly. 20. In view of the discussion and analysis made herein above , there is no merit in the appeal and the same is dismissed. Pending applications, if any, also stand disposed of. No costs.