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Himachal Pradesh High Court · body

2016 DIGILAW 1328 (HP)

Hari Nand v. Rama Nand

2016-07-11

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. 1. The instant appeal stands directed against the impugned judgment and decree of the learned District Judge (Forests), Shimla, whereby he affirmed the rendition of the learned Civil Judge (Jr. Division), Theog. The defendants standing aggrieved by the concurrently recorded renditions against them of both the learned Courts below concert through the instant appeal constituted hereat to reverse the judgments and decrees of both the Courts below. 2. The facts necessary for rendering a decision on the instant appeal are that one Jawal was the owner in possession of the land comprised in Khasra No. 16, 18, 19, 20, 21, 22, 162, 282/201 and 283/201 measuring 26 bigha and 13 biswas situated in Chak Majholi, Pargana Newal, Tehsil Theog, District Shimla. The deceased Jawal had executed a will of the suit land in favour of S/Sh. Nanku and Totu and Hari Nand on 29.09.1995 Ext.PW-2/A. This will was got registered on 9.5.1997. Nanku, now deceased also executed a valid Will on 5.6.1995 in favour of plaintiff No.6 with his free consent and without any pressure from anybody. The plaintiff No. 6 as such become owner in possession qua the share of Nanku in the suit land. Further averred that the ld. Assistant Collector 2nd Grade has wrongly and illegally attested the mutation with respect to the suit land on 26.3.1998 in favour of defendants No. 2 to 4 on the basis of illegal and invalid will dated 15.10.93 Ext.DA. The defendants No. 2 to 4 on the basis of illegal and invalid will are now threatening to interfere with their possession in the suit land. 3. The suit of the plaintiffs was resisted by defendants 1 to 4 on the ground that Jawal never executed will dated 29.9.1995 qua the suit land during his life time as he was not in a position to execute any document due to his serious illness. He on 15.10.1993 executed a legal and valid will in favour of the defendants No. 2 to 4 while in good state of mind and body. It was executed freely and after due consultation. It is alleged that the last will as alleged by the plaintiffs is false and forged document. The A.C. 2nd Grade as such rightly attested mutation No. 247 dated 26.3.1998 in favour of the defendants No. 2 to 4. It was executed freely and after due consultation. It is alleged that the last will as alleged by the plaintiffs is false and forged document. The A.C. 2nd Grade as such rightly attested mutation No. 247 dated 26.3.1998 in favour of the defendants No. 2 to 4. With these submissions defendants have prayed for dismissal of the suit with costs. 4. In the replication filed on behalf of the plaintiff the averments as contained in the plaint were reiterated and those of the written statement contrary to the plaint were refuted. 5. On the pleadings of the parties, the trial Court struck following issues inter-se the parties in contest:- 1. Whether Jawal had executed a Will dated 29.9.1995, registered on 9.5.1997 in favour of the plaintiffs and defendant No.1, if so, its effect, OPP. 2. If issue No.1 is proved in the affirmative, whether the mutation No.247 dated 26.3.1998 is liable to be set-aside, alleged? OPP. 3. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction, as prayed for? OPP. 4. Whether the Jawal executed a Will dated 15.10.1993 to defendants NO. 2 to 4, as alleged? OPD. 5. Relief. 6. On an appraisal of the evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiffs besides the learned First Appellate Court dismissed the appeal preferred there from before it by the defendants. 7. Now the defendants have instituted the instant Regular Second Appeal before this Court, assailing the findings recorded by the learned first Appellate Court in its impugned judgment and decree. When the appeal came up for admission on 6.11.2007, this Court admitted the appeal on the hereinafter extracted substantial questions of law:- 1. Whether both the Courts below have acted illegally and the inference and conclusions as drawn are contrary to the material on record? 2. Whether the learned District Judge has drawn a wrong inference that earlier Will Exhibit DA which was executed on 15.10.1993 and got registered before the Sub Registrar, Theog, on 16.10.1993 has not been proved by the present appellants though as per the claim of the respondents subsequent Will Ext. PW-2/A contain mention of the earlier Will? 3. Whether Ext.DA earlier will of late Sh. Jawal stands proved and the same being valid, therefore, parties are bound by the same? 4. Whether Ext. PW-2/A contain mention of the earlier Will? 3. Whether Ext.DA earlier will of late Sh. Jawal stands proved and the same being valid, therefore, parties are bound by the same? 4. Whether Ext. PW-2/A has not been prepared in conformity with the provisions of Section 63 of the Indian Succession Act? 5. Whether the appellant No. 1 have been held to be joint owner in possession of the suit land on the basis of Ext.PW-2/A, therefore, decree for injunction could not be passed against him? 6. Whether mutation No.247 having been attested by the competent authority in accordance with law and the fact that the same was not challenged by filing appeal, therefore, the parties are bound by the same? 7. Whether the validity of Will Ext.DA as executed in favour of the appellants having not been challenged, therefore, the same could not be held in valid. 8. Whether subsequent Will Exhibit PW-2/A has not been prepared at the instance of late Shri Jawal and the same is surrounded by suspicious circumstances, therefore, the same is not legal and valid? 9. Whether Ext. PW-2/A having been prepared with the active participation of the beneficiaries and the fact that the deceased was not having sound and disposing mind, therefore, Ext.PW-2/A is not a legal and valid document? Substantial questions of law No. 1 to 9. 8. The plaintiffs foisted a right qua the suit land, on the anvil of a testamentary disposition of deceased testator Jawal comprised in Ext.PW-2/A. With plaintiffs standing nominated by the deceased testator in Ext.PW-2/A to be his beneficiaries/legatees there under, they sequelly stood statutorily enjoined to prove the prime factum qua the valid and due execution of Ext.PW-2/A, by adducing evidence in display of the apposite provisions encapsulated in Section 63 of the Indian Succession Act (hereinafter referred to as “the Act”) standing satiated, provisions whereof stand extracted hereinafter: 63. Execution of unprivileged wills.-Every testator, not being soldier employed in an expedition or engaged in actual warfare, 1*[or an airman so employed or engaged,] or a mariner at sea, shall execute his will according to the following rules:-- (a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the erson signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. (c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or as received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. A reading of the afore extracted relevant provisions manifest of the propounder of the Will standing foisted with a solemn statutory duty to prove the factum of its valid due execution by the deceased testator, proof whereof qua its standing validly and duly executed by the deceased testator would spur, on any of the attesting witnesses thereto with conclusivity deposing qua the deceased testator making his thumb impression thereon in his presence or his appending his signatures thereon in his presence where after the attesting witness in the presence of the deceased testator embossing his thumb impression or appending his signatures thereon. In satiation of the aforesaid statutory parameters, for thereupon Will Ext.PW-2/A being construable to be proven to be validly and duly executed by the deceased testator, it is not incumbent upon its propounder to adduce both the marginal witnesses thereto into the witness box, contrarily the deposition of any marginal witness thereto in proof of its valid and due execution is sufficient. Consequently, the propounder of the Will made an attesting witness thereto namely Kansiya to step into the witness box for proving the valid and due execution of the apposite Will by deceased testator Jawal whereat he unequivocally deposed of the deceased testator in his presence thumb marking it, thumb impression whereof of the deceased testator on Ext.PW-2/A stands deposed by him to exist in Red circle, where after he deposes of his thereafter in the presence of the deceased testator his appending his signatures thereon besides in his presence another marginal witness appending his signatures thereon. He has deposed of his signatures existing on Ext.PW-2/A in red circle. Also he has deposed of the signatures of the other marginal witness thereto as stood appended thereon by him existing on Ext.PW-2/A in red circle. The aforesaid testimony of Kansiya, an attesting witness to Ext.PW- 2/A is palpably reflective of hence the plaintiffs while anvilling their claim to the suit property by placing reliance upon Ext.PW-2/A succeeding in proving its valid and due execution by the deceased testator Jawal thereupon hence theirs staking a claim to the suit property on anchorage thereof cannot stand to be discountenanced. 9. Be that as it may, since the defendants staked assertion of title to the suit property on the anvil of Ext.DA, a testamentary disposition of the deceased testator executed by him prior to his executing registered Will Ext.PW-2/A, it was incumbent upon the defendants, its propounders, to likewise adduce cogent evidence in display of Ext.DA standing proven to be validly and duly executed by the deceased testator Jawal, proof whereof stood constituted in any of the attesting witness thereto testifying the factum of the deceased testator embossing in their respective presence his thumb impressions on Ext.DA where after both the attesting witnesses in the presence of the deceased testator endorsing their respective signatures thereon. However, the defendants while propounding Ext. DA had led both the attesting witnesses thereto into the witness box. Both DW-1 and DW-2 though deposed qua the Ext.DA holding their signatures yet they omitted to make any communications in their respective testimonies qua preceding theirs appending their respective signatures thereon, the deceased testator in their respective presence embossing his thumb impression thereon. DA had led both the attesting witnesses thereto into the witness box. Both DW-1 and DW-2 though deposed qua the Ext.DA holding their signatures yet they omitted to make any communications in their respective testimonies qua preceding theirs appending their respective signatures thereon, the deceased testator in their respective presence embossing his thumb impression thereon. Consequently, the depositions of both DW-1 and DW-2, the marginal witnesses to Ext.DA, propounded by the defendants to assert a claim to the suit property manifestly do not satiate the statutory parameter of each prior to theirs appending their respective signatures on Ext.DA seeing the deceased testator embossing his thumb impression thereon, whereas the statutory mandate constituted in Section 63 of the Act enjoined upon both DW-1 and DW-2 to testify in proof qua valid and due execution of Ext.DA by making an unequivocal deposition of both prior to theirs appending their respective signatures thereon theirs seeing the deceased testator embossing his thumb impressions thereon. In aftermath, with their respective depositions being off the legal tangent qua satiation of the indispensable statutory obligation prescribed by the relevant provisions of the Act standing begotten on satiation whereof alone Ext.DA would be amenable to its standing construed to be cogently proven to be validly and duly executed by the deceased testator Jawal, contrarily when the apposite conclusive proof is amiss hereat qua the indispensable statutory ingredients aforesaid for Ext.DA standing construed to be validly and duly executed by the deceased testator, in sequel the findings recorded by the learned Courts below in dispelling the legal efficacy of Ext.DA do not merit any interference. 10. The learned counsel for the defendants/appellants herein places reliance upon an affidavit sworn by the Sub Registrar concerned who had accepted Ext.DA for registration as an endeavour for proving the factum of its valid and due execution by deceased Jawal. 10. The learned counsel for the defendants/appellants herein places reliance upon an affidavit sworn by the Sub Registrar concerned who had accepted Ext.DA for registration as an endeavour for proving the factum of its valid and due execution by deceased Jawal. The reliance as placed upon the affidavit sworn by the Sub Registrar concerned who accepted Ext.DA for registration, in affidavit whereof their exists a recital qua on the contents of Ext.DA standing read over and explained by him to Shri Jawal where after the deceased testator Jawal purveyed to him his apposite echoings qua the recitals embodied therein holding truth whereupon he proceeded to accept it for registration, cannot perse render Ext.DA to acquire any aura of solemnity dehors non-satiation for lack of adduction of cogent proof of the statutory mandate encapsulated in the relevant Section of the Act. The reason for this Court holding qua legal worth if any, the affidavit sworn by the Sub Registrar concerned holds yet gaining no creditworthiness stands founded upon though his belying the suggestion put to him by the learned counsel for the plaintiffs on the latter holding him to cross-examination of none of the marginal witnesses recording their presence before him at the time he accepted Ext.DA for registration yet with Ext.DA not holding the signatures of any of the attesting witnesses thereto renders the affidavit sworn by the Sub Registrar concerned to hold no vigour in displacing the testimonies of the marginal witnesses thereto, who in their respective depositions, for reasons recorded hereinabove omitted to make any articulation therein qua Ext.DA standing within the ambit of Section 63 of the Act proven to be validly and duly executed by the deceased testator. Even otherwise placing reliance upon the affidavit sworn by the Sub Registrar concerned would sequel a legal casualty of the statutory vigour of the mandate of Section 63 of the Act standing diminished. For obviating the aforesaid legal casualty, any reliance upon the affidavit sworn by the Sub Registrar concerned would be legally in-sagacious. Even though the deceased testator stood at the stage of the Sub Registrar concerned accepting Ext. For obviating the aforesaid legal casualty, any reliance upon the affidavit sworn by the Sub Registrar concerned would be legally in-sagacious. Even though the deceased testator stood at the stage of the Sub Registrar concerned accepting Ext. DA for registration stood identified thereat by Gulab Singh also thereupon the factum of Ext.DA hence purportedly holding the signatures of the deceased testator would not suffice to castaway the applicability of Section 63 of the Act nor would the deposition of Gulab Singh render dispensable the adduction by the propounders of the Will of the legally enjoined evidence within the apposite mandate of Section 63 of the Act for hence Ext. DA standing construed to be proven by them to be validly and duly executed by the deceased testator especially when it embodies therein the statutory mechanism encompassed in satiation of the parameters enshrined therein satiation whereof would spur on adduction of conclusive evidence by its propounders embedded in the testimony of an attesting witness thereto echoing therein qua the deceased testator making his thumb impression or appending his signatures thereon in his presence where after in the presence of the deceased testator his doing likewise whereupon hence the statutory parameters enshrined therein standing satiated an aura of validity would stand imputed to Ext. DA whereas for the reasons aforesaid with the both marginal witnesses not deposing qua the prime factum probandum aforesaid, the mere factum of Ext. DA holding the purported thumb impression of the deceased testator besides his thumb impressions existing on the relevant endorsements occurring thereon would yet not prove the factum of its valid and due execution by the defendants its propounders. In accepting the factum of Ext. DA holding the purported thumb impression of the deceased testator besides his thumb impressions existing on the relevant endorsements occurring thereon would yet not prove the factum of its valid and due execution by the defendants its propounders. In accepting the factum of Ext. DA holding thereon the thumb impressions of the deceased testator without proof as enjoined by the apposite statutory provisions standing adduced by its propounders qua the deceased testator embossing in the presence of the marginal witnesses his thumb impression thereon who thereafter respectively in his presence signatured it, would sequel the casualty of it being militative of the apposite mandate of Section 63 of the Act, provision whereof holding prescriptions therein qua the mechanism contemplated therein, when alone hold a sacrosanct statutory pedestal for proving the valid and due execution of a testamentary disposition also the mechanism occurring therein standing statutorily conceived to be solitarily resorted to by its propounders as a corollary when the apposite testimonies of the marginal witnesses to Ext. DA hold statutory sinew qua satiation of the statutory parameters encapsulated in Section 63 of the Act standing begotten for hence imputing validity to Ext. DA dehors proof if any of Ext. DA standing registered by the Sub Registrar concerned prominently when the testimonies of the marginal witnesses to Ext. DA for reasons aforestated do not prove the factum of its valid and due execution within the statutory domain of Section 63 of the Act besides when at the time contemporaneous to Ext. DA standing presented and accepted for registration by the Sub Registrar concerned both the marginal witnesses thereto for reasons aforesaid were not present thereat. In aftermath with the solemnity of the sacrosanct principle enshrined in Section 63 of the Act being un-amenable to suffer any dilution, any imputation of credence qua Ext.DA or any recording of an inference by this Court qua it standing proven to be validly and duly executed merely on the anvil of its standing accepted for registration by the Sub Registrar concerned on its standing purportedly presented there before by the deceased testator would defile its sanctity. Also the identifier of the deceased testator at the time Ext.DA stood accepted for registration by the Sub Registrar concerned though stepped into the witness box as DW-3 whereat he has proven the factum of Ext.DA holding the signatures of the deceased testator arousable from the factum of the deceased Jawal presenting it for registration before the Sub Registrar concerned, is a feeble untenable attempt on the part of the counsel for the defendants/ appellants herein to dilute the mandate of Section 63 of the Act. Since Section 63 of the Act alone enjoys statutory approbation besides enjoins its propounders to prove the statutory parameters encapsulated therein by adducing relevant conclusive evidence whereas the relevant enshrined parameters therein for reasons stated hereinabove standing un-satiated renders the deposition of DW-3 to hold no sanctity in displacement of the apposite mandate engrafted therein, mandate whereof with specificity delineates the statutory mechanism for proving the valid and due execution of the relevant testamentary disposition. Also with DW-1 in his cross-examination denying the suggestion put to him by the learned counsel for the defendants while holding him to cross-examination impinging upon the factum of the deceased testator embossing his thumb impression thereon in the presence of Gulab Singh, the identifier of the deceased testator before the Sub Registrar concerned at the time it stood presented thereat for registration sprouts an inference of Gulab Singh being unavailable at the relevant time when the deceased testator Jawal embossed his thumb impression on Ext.DA besides gives leeway to an inference of even if Ext.DA holds the purported thumb impressions of the deceased testator of theirs standing embossed thereon subsequently in the presence of only the Sub Registrar concerned whereas contrarily when they were enjoined to be embossed thereon in the presence of the attesting witnesses thereto who contrarily respectively display in their respective testimonies of the deceased testator not embossing them in their respective presence, rendering hence the presence of the thumb impressions of the deceased testator on Ext.DA to hold no efficacy in proving the factum of its standing statutorily proven to be validly and duly executed by him. Since Ext.PW-2/A succeeded the execution of Ext.DA nonetheless with a recital occurring in Ext.PW-2/A of the deceased testator cancelling his previous testamentary disposition comprised in Ext.DA also with Ext.PW-2/A for reasons stated hereinabove standing efficaciously proven in consonance with the mandate of Section 63 of the Succession Act to be validly and duly executed, this Court holds qua the findings recorded by both the Courts below not meriting any interference. 11. The result of the above discussion is that the appeal preferred by the defendants/ appellants herein is dismissed and the substantial questions of law are answered against them. The judgments and decrees rendered by the both the Courts below are maintained and affirmed. Decree sheet be prepared accordingly. The parties are left to bear their own costs. All pending applications also stand disposed of accordingly. Records be sent back forthwith.