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2016 DIGILAW 1418 (HP)

Bishan Dass v. Sardari Lal

2016-07-18

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. The instant Regular Second Appeal stands directed by the defendants/appellants against the impugned rendition of the learned Additional District Judge, Una whereby he dismissed the appeal of the defendants/appellants herein and affirmed the findings rendered by the learned Sub Judge 1st Class (1), Amb, District Una, H.P., whereby the latter Court decreed the suit of the plaintiff. The defendants/appellants herein stand aggrieved by the judgment and decree of the learned Additional District Judge, Una. Theirs standing aggrieved, they have therefrom preferred the instant appeal before this Court for seeking from this Court a verdict for reversing the findings recorded therein. 2. It has been averred in the plaint by the plaintiff that the defendants have not right, title or interest qua the estate left by late Sh. Chhajju Ram husband of the original plaintiff Smt. Bhambo Devi and in particular with respect to the land as detailed in the plaint, hereinafter referred to as the suit land. It is also averred that the defendants got attested mutation No.66 of 14.8.1992 in their favour on the anvil of the alleged Will of Chhajju Ram of 6.11.1974 which is alleged to be illegal on the ground of its being result of fraud and undue influence hence prayed that it is liable to be set aside being in operative qua the rights of the plaintiff. The plaintiff claims that she is owner in possession of the suit land and the estate left by her husband. Consequently, the plaintiff has prayed for declaring the alleged Will null and void and further to restrain the defendants from causing interference in the suit land in the manner or in case the defendants succeeds in taking forcible possession of the suit land or part thereof, a decree for possession be also passed. 3. The defendants contested the suit and filed written statement, wherein they have taken preliminary objections qua maintainability, cause of action, limitation and estoppel. On merits, it has been pleaded that Sh. Chhajju Ram during his life time had executed a valid Will in their favour and he died on 5.2.1992. The Will was stated to have been executed out of his free volition as the defendants have been taking care of Chhaju Ram during his life time. On merits, it has been pleaded that Sh. Chhajju Ram during his life time had executed a valid Will in their favour and he died on 5.2.1992. The Will was stated to have been executed out of his free volition as the defendants have been taking care of Chhaju Ram during his life time. The Will which was stated to have been executed in the year 1975 thus is claimed by the defendants to have been executed by the testator in a sound disposing mind and thus after his death on the strength of the Will defendants have succeeded to the estate of said late Sh. Chhajju Ram. In respect of the attestation of the mutation, it is submitted that the said document was also attested in the presence of the general public and therefore, the plaintiff has no right whatsoever in the estate left behind by Chhajju Ram and prayed that the suit be dismissed. 4. The original plaintiff filed replication to the written statement of the defendants/appellants, wherein, they denied the contents of the written statement and reaffirmed and re-asserted the averments, made in the plaint. 5. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:- 1. Whether the plaintiff is owner in possession of the suit property including abadi denoted by the letters ABCDEF in site plan, as alleged? OPP 2. Whether the Will in favour of defendants qua the estate of Chhajju is a result of fraud and undue influence and whether the mutation sanctioned on its basis in favour of defendants qua estate of Chajju is wrong, illegal and void, as alleged? OPP 3. Whether the plaintiff is entitled to the relief of injunction, as prayed for? OPP 4. Whether the plaintiff is entitled to the relief of possession in alternative, as alleged? OPP 5. Whether suit is within time? OPP 6. Whether suit is not maintainable in the present form? OPD 7. Whether the act and conduct of plaintiff is bar to the suit? OPD 8. Whether deceased Chhajju Ram executed valid will in favour of defendants qua his estate on 16.11.1974 in sound state of mind and whether defendants are owners in possession of suit property on the basis of Will? OPD 9. Relief. 6. OPD 7. Whether the act and conduct of plaintiff is bar to the suit? OPD 8. Whether deceased Chhajju Ram executed valid will in favour of defendants qua his estate on 16.11.1974 in sound state of mind and whether defendants are owners in possession of suit property on the basis of Will? OPD 9. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiff. In an appeal, preferred therefrom before the learned first Appellate Court by the appellants/defendants, the first Appellate Court dismissed their appeal and affirmed the findings recorded by the learned trial Court. 7. Now the defendants/appellants herein 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 13.11.2003, this Court, admitted the appeal instituted by the defendants/appellants against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. Whether the suspicious circumstances relied upon by the two Courts below in declaring the impugned will Ex.DW2/A as invalid are suspicious circumstances surrounding the execution of the said Will and, if so, whether the suspicious circumstances have been satisfactorily explained? Substantial question of Law No.1: 8. On demise of Chhajju Ram his estate opened for succession. On the anvil of a testamentary disposition of deceased testator Chhajju Ram mutation of inheritance qua his estate stood attested on 14.8.1992 in favour of the defendants by the Revenue Officer concerned. The learned counsel appearing for the appellant has contended with vehemence before this Court of with the plaintiff not stepping into the witness box for proving the averments constituted therein embodying the factum of the testamentary disposition of deceased Chhajju Ram comprised in Ex.DW2/A standing shrouded with suspicious circumstances, it was unwarranted for both the learned Courts below to proceed to underscore in their respective decisions, the prevalence of suspicious circumstances surrounding the execution of Ex.DW2/A. He contends of hence the suspicious circumstances, if any, surrounding the execution of Ex.DW2/A as stood marshaled ipso facto at the mere ipse dixit of both the learned Courts below for theirs thereupon concomitantly concluding of with its propounders failing to dispel the aura of suspicion gathering around the execution of Ex.DW2/A, not holding any vigour. However, the aforesaid submission addressed before this Court by the learned counsel appearing for the appellants ought at the out set suffer the fate of its standing axed as even in the absence of the plaintiff not stepping into the witness box to prove the apposite averments encompassing the purported suspicious circumstances surrounding the execution of Ex.DW2/A, the judicial conscience of Courts of law when stood beset with, on available material adduced therebefore in purported display of falsity ingraining Ex.DW2/A, an obstacle, to pronounce upon its valid and due execution by the deceased testator, it was incumbent upon its propounders to dispel the aura of suspicion surrounding Ex.DW2/A. 9. Be that as it may, even if the plaintiff had not stepped into the witness box to prove the averments embodying the purported suspicious circumstances surrounding the execution of Ex.DW2/A, for hence belittling the factum of its valid and due execution by the deceased testator yet the apposite suspicious circumstances as stood constituted in the purported falsities ingraining the recitals occurring in Ex.DW2/A, falsities whereof upsurged on both the learned Courts below alluding to the evidence adduced therebefore, any allusion thereto by them, is a legally justifiable concert on their part to satisfy their judicial conscience qua the factum of its valid and due execution by the deceased testator yet apart therefrom this Court is compatibly enjoined with a solemn obligation to ascertain by gauging from the apt material, whether suspicious circumstances, if any, which stood culled out by both the learned Courts below from the evidence available therebefore, ingraining the execution of Ex.DW2/A for hence theirs nullifying the execution of Ex.DW2/A holding sway with this Court. 10. At the outset, it is imperative to allude to the factum of Ex.DW2/A standing executed on 6.11.1974 and on its on the very same day standing presented for besides its standing accepted for registration by the Registering Officer concerned. 10. At the outset, it is imperative to allude to the factum of Ex.DW2/A standing executed on 6.11.1974 and on its on the very same day standing presented for besides its standing accepted for registration by the Registering Officer concerned. The apposite statutory para meter enjoining substantiation by adduction of cogent evidence for a “Will” being construable to be validly and duly executed is of the deceased testator standing proven by any of the attesting witnesses thereto to either thumb mark it or append his signatures thereon in the presence of marginal witnesses thereto, besides of emphatic evidence standing adduced in pronouncement of the marginal witnesses thereto after theirs seeing the deceased testator append his thumb impressions or his signatures thereon, theirs proceeding to in his presence append thereon their respective signatures or their respective thumb impressions. It is not necessary for each of the attesting witnesses to a testamentary disposition, to step into the witness box, in proof of the deceased testator embossing his thumb impressions thereon in their respective presence or his appending his signatures on the relevant testamentary disposition in their respective presence nor also both the marginal witnesses to a testamentary disposition are enjoined to step into the witness box to lend further proof qua the factum of theirs respectively in the presence of the deceased testator embossing their respective thumb impression or theirs appending their respective signatures thereon. Contrarily, under law, the deposition of any of the marginal witnesses to a testamentary disposition commands legal sway in proof of the valid and due execution of a testamentary disposition preeminently when he in his deposition makes striking underscorings therein in satiation of the statutory ingredients referred to hereinabove. Contrarily, under law, the deposition of any of the marginal witnesses to a testamentary disposition commands legal sway in proof of the valid and due execution of a testamentary disposition preeminently when he in his deposition makes striking underscorings therein in satiation of the statutory ingredients referred to hereinabove. Even though, one of the marginal witnesses to Ex.DW2/A, namely, Hari Ram stepped into the witness box whereat he with unequivocal vigour bespoke of the deceased testator Chhajju Ram embossing in his presence his thumb impression thereon besides, in the presence of another marginal witness thereto, namely, Jagdish Ram whereafter both, he and Jagdish Ram in the presence of deceased Chhajju Ram appended their respective signatures thereon, whereafter he testifies of the deceased testator accompanied by both the marginal witnesses aforesaid to Ex.DW2/A, proceeded to the office of the Sub Registrar concerned whereat it stood presented for registration by the deceased testator before him, who on making the requisite inquiry from the deceased testator Chhajju Ram qua his voluntariness in executing Ex.DW2/A besides on his explaining to him the contents of Ex.DW2/A, contents whereof stood acquiesced by deceased testator Chhajju Ram, whereafter the latter in the presence of the Sub Registrar embossed his thumb impression on Ex.DW2/A, embossing thereon by deceased testator Chhajju Ram of the thumb impression stood succeeded by both Hari Ram and Jagdish Ram, marginal witnesses thereto appending their respective signatures thereon in the presence of the Sub Registrar concerned besides in the presence of deceased testator, testification whereof of DW-2 does constitute a formidable evidence for wresting an invincible conclusion of the apposite statutory para meter enshrined in Section 63 of the Succession Act, provisions whereof stand extracted hereinafter, standing proven for hence sequeling an inference of Ex.DW2/A standing proven to be duly and validly executed. Provisions of Section 63 of the Succession Act read as under:- “63. Execution of unprivileged Wills :- Every testator, not being a 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. Provisions of Section 63 of the Succession Act read as under:- “63. Execution of unprivileged Wills :- Every testator, not being a 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 person 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 has 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.” Nonetheless, the learned first Appellate Court dispelled the efficacy of Ex.DW2/A on the score of (a) DW Hari Ram not belonging to the same Panchayat whereat the deceased testator held his residence; (b) Jagdish Ram despite surviving at the time contemporaneous to the recording of the deposition of DW Hari Ram, his not stepping into the witness box. Both the aforesaid reasons ascribed by the learned first Appellate Court to dis-impute sanctity to Ex.DW2/A hold no clout unless evidence stood adduced by the plaintiff connotative of DW Hari Ram not holding any intimacy or acquaintance with the deceased testator. However, the aforesaid evidence is amiss. Both the aforesaid reasons ascribed by the learned first Appellate Court to dis-impute sanctity to Ex.DW2/A hold no clout unless evidence stood adduced by the plaintiff connotative of DW Hari Ram not holding any intimacy or acquaintance with the deceased testator. However, the aforesaid evidence is amiss. Contrarily, with DW Hari Ram in his deposition making ad nauseam echoings of his holding a close acquaintance with the deceased testator, echoings whereof acquire tenacity arousable from no evidence in rebuttal thereto standing adduced, whereupon hence an inference stand ignited of the deceased testator construing DW2 Hari Ram to be his confidante hence when the association of a marginal witnesses by the deceased testator qua his testamentary disposition hinges upon trust reposed by the deceased testator in them dehors the factum of theirs residing elsewhere than within the domain of the Panchayat wherein the deceased testator held his estate, as a corollary, when DW2 Hari Ram enjoyed the confidence and trust of the deceased testator, the mere factum of DW-2 Hari Ram not belonging to the same Panchayat whereat the deceased testator held his residence was a meritless ground for the Courts below for dispelling the efficacy of his testimony preeminently when he has with vividty underlined therein qua satiation of the statutory para meters enshrined in Section 63 of the Succession Act standing begotten whereupon hence a conclusion of Ex.DW2/A standing clinchingly proven to be validly and duly executed is drawable. Since, law does not enjoin upon a propounder of a testamentary disposition to lead in evidence both the marginal witnesses thereto, it was insagacious for the learned first Appellate Court to discount the legal efficacy of Ex.DW2/A upon a legally emaciated count of the other marginal witness thereto not stepping into the witness box to prove the factum of its valid and due execution. 11. 11. Be that as it may, both the marginal witnesses to Ex.DW2/A provenly accompanied the deceased testator to the office of Sub Registrar concerned whereat deceased testator Chhajju Ram presented for registration before the Sub Registrar concerned his testamentary disposition comprised in Ex.DW2/A, prior whereto of the Registering Officer concerned accepting it for registration provenly made an inquiry from the deceased testator qua his comprehensibility of the recitals occurring in Ex.DW2/A besides qua its standing voluntarily executed by him, on successful completion whereof provenly deceased Chhajju Ram in the presence of the Registering Officer concerned embossed his thumb impression thereon whereafter both, Hari Ram and Jagdish Ram, the marginal witnesses to Ex.DW2/A in presence of both, the deceased testator and in the presence of the Registering Officer concerned appended their respective signatures thereon, proven facts aforesaid when magnifyingly articulate the factum of the deceased testator voluntarily making Ex.DW2/A besides, with each of the marginal witnesses thereto inconsonance with the apt statutory mode both succeeding its execution by the deceased testator also in the presence of the Registering Officer concerned appending their respective signatures thereon whereupon a firm capitalization to an inference of Ex.DW2/A standing proven to be validly and duly executed by deceased testator Chhajju Ram, is drawable, in sequel, when clinching proof qua its standing duly and validly executed by the deceased testator stands evinced, it was inapt for both the learned Courts below to overwhelm its efficacy on the score of cuttings existing on the reverse of Ex.DW2/A, cuttings whereof remaining uninitialed by the Registering Officer concerned, stood construed by them to render Ex. DW2/A to be not an instrument executed by deceased testator Chhhajju Ram rather by one Lachhmi Nand whereupon hence an aura of illegality stood fastened by them qua the valid and due execution of Ex.DW2/A, whereas, given the factum of the front of Ex.DW2/A provenly containing the thumb impression of the deceased testator besides of each of the marginal witnesses thereto, also when its reverse held likewise, any inference drawn by the learned Court below on the mere occurrence therein by inadvertence of the name of one Lachhmi Nand, of the latter hence being its executor, if also stands countenanced by this Court would render nugatory the proven recitals existing on the front of Ex.DW2/A besides, the proven signatures thereon of the deceased testator and of the marginal witnesses also would lead to a unwarranted sequel of this Court discounting the proven signatures of the aforesaid existing on its reverse. Apart therefrom, this Court derives an alike conclusion vis-a-vis the conclusion drawn by the learned courts below qua the facet aforesaid it would for reiteration blunt the effect of clinching evidence analysed hereinabove as exists hereat in proof of its valid and due execution. 12. Recitals occurs in Ex.DW 2/A of deceased testator Chhajju Ram standing goaded by services rendered to him by the legatees of Ex.DW2/A to hence bequeath his estate in their favour. However, both the learned Courts below on the anvill of DW-1 Ram Singh being aged eight years at the time contemporaneous to the execution of Ex.DW2/A besides his brother Bishan Dass serving in the army also of DW-1 omitting to unravel with specificity in his testimony qua the nature of services rendered by him to deceased testator Chhajju Ram, concluded therefrom of the motivating factor aforesaid for the legator of Ex.DW2/A to execute it when remained unsubstantiated, it hence ingraining Ex.DW2/A with an element of falsity whereupon both the learned Courts below disimputed sanctity qua its standing proven to be validly and duly executed. However, the aforesaid ground as meted by both the learned Courts below to disimpute sanctity qua the aforesaid recitals occurring in Ex.DW2/A appears to stand engendered by theirs making short shrift of the latter part of his testimony wherein he unravels of the plaintiff and the deceased testator uptill the demise of the latter residing in his dwelling whereat also his father resides with him. Embodiments aforesaid in his testimony when remained unrepulsed during the course of his standing held to cross-examination by the learned counsel for the plaintiff, fillips an inference of from the date of execution of Ex.DW2/A till the demise of deceased testator Chhajju Ram, both the latter and his wife residing in the homestead of DW-1 whereat he along with his father reside also therupon a concomitant inference stands derived of the Courts below holding a stricto senso view of the incapacity of DW1 besides his brother arising from the respective minority of DW-1 besides of his brother serving in the army, to hence serve the deceased testator, rendering the aforesaid motivating factor to hence stand ingrained with a falsity whereas they undermined the effect of the evident fact of deceased testator Chhajju Ram living in the house of DW-1 whereat his father resided with him, factum whereof would awaken an inference of vicarious services standing rendered to the deceased testator by the respective legatees of Ex. DW2/A through their father. Even otherwise, the learned Courts below appear to overlook the proven factum of the deceased testator along with his wife residing in the house of DW1 upto his demise, prolonged stay whereof of the deceased testator thereat ipso facto is connotative of his standing pleased with the services rendered by the legatees even through their father, dehors the incapacity, if any, of the legatees of Ex. DW2/A at the time contemporaneous to its execution by deceased testator Chhajju Ram, to purvey him their personal services nor it was apt for both the learned Courts below to insist upon strict proof of rendition of personal services by the legatees of Ex.DW2/A upon the deceased testator at the time contemporaneous to its execution when otherwise Ex.DW2/A stands proven to be validly and duly executed by him, predominantly when any insistence thereof would erode the effect of the desire of the deceased testator to bequeath his estate in their respective favour also would curtail the aspiration of the deceased testator manifested in his proven testamentary disposition besides would overwhelm the fact of Ex.DW2/A standing unrevoked by the deceased testator since its execution in the year 1974 upto his demise, factum whereof disrobes the falsity, if any, of the recital embodied therein of rendition of services by the beneficiaries of Ex.DW2/A towards deceased testator Chhajju Ram motivating him to execute it in their favour. The conclusion drawn by both the learned Courts below qua with no clinching evidence/proof standing adduced qua the rendition of personal services by the legatees of Ex.DW2/A towards deceased testator Chhajju Ram hence rendering Ex.DW2/A to stand shrouded with suspicious circumstances rendering hence its not standing proven to be validly and duly executed, appears to germinate from theirs omitting to hold a wholesome analysis of the testimony of DW-1 besides theirs overlooking evidence aforesaid alluded to hereinabove wherefrom an inference contrary to the one as stand drawn by the learned courts below, stands drawn by this Court. Further both the learned Courts below palpably appear to draw an obviable pedantic interpretation qua the recitals in Ex.DW2/A qua rendition of personal services by the legatees towards the deceased testator ingratiating the latter, any interpretation whereof, would frustrate the workability of evidence as stand adduced in satiation of the apposite para meter enshrined in Section 63 of the Succession Act whereupon this Court has construed it to be proven to be duly and validly executed by the deceased testator. Consequently, the aforesaid ground does not constitute any suspicious circumstances nor also it stood enjoined upon its propounders to dispel it. 13. The learned counsel appearing for the respondent has contended with vigour of with DW-1 in his cross-examination making a communication therein of apart from the income rearable from the estate of the deceased testator, Bhambo Devi not holding any other source of income for maintaining herself, renders the recitals in Ex.DW2/A of the deceased testator disinheriting her on hers holding ornaments besides sufficient cash to maintain herself, to stand ingrained with falsity, whereupon no sanctity is imputable to Ex.DW2/A. However, the solitary acquiescence by DW-1 qua the facet aforesaid would not erode Ex.DW2/A of its solemnity, especially when there exists a manifestation in Ex. P-1 of the mortgaged estate of the deceased testator standing redeemed by the plaintiff on hers paying in the year 1992, mortgage money to the State of Himachal Pradesh. The factum of hers redeeming the mortgaged estate of deceased Chhajju Ram by hers defraying the mortgage money to the State of Himachal Pradesh is a sufficient personification of hers holding financial resources other than the income reared or rearable from the landed estate of the deceased testator. The factum of hers redeeming the mortgaged estate of deceased Chhajju Ram by hers defraying the mortgage money to the State of Himachal Pradesh is a sufficient personification of hers holding financial resources other than the income reared or rearable from the landed estate of the deceased testator. As a corollary recitals in Ex.DW2/A of hers holding ornaments besides sufficient cash for her survival, movable assets whereof constrained deceased testator Chhajju Ram to disinherit her, hold veracity. Consequently with veracity percolating the facet aforesaid constituted in Ex.DW2/A for the deceased testator hence standing goaded to disinherit the plaintiff obviously renders the bequest constituted in Ex.DW2/A to not acquiring any aura of suspicion. 14. Lastly, the learned counsel appearing for the respondent has contended of with the propounders/beneficiaries of Ex.DW2/A holding no direct lineage vis-a-vis the deceased testator as apparent from revelations occurring in the memo of parties of the apposite suit of the deceased testator standing fathered by Baisakhi whereas the defendants standing fathered by Natha Ram, ancestors whereof of both hence not holding any affinity in lineage, rendering hence the relevant bequest comprised in Ex.DW2/A to be unnatural. However, with DW-1 deposing of the deceased testator holding a relationship with him and his brother as their uncle (Taya), factum whereof remains uneroded, does fillip a conclusion of even if, there was no direct affinity in lineage of the propounders vis-a-vis the executor of Ex.DW2/A yet it appears of there being an indirect lineage vis-a-vis both the executor and the legatees of Ex.DW2/A. Also the proven factum of the deceased testator living in the house of DW-1 since the execution of Ex.DW2/A uptill his demise holds sway with this Court to conclude of the legatees of Ex.DW-2/A holding a family relationship with the deceased testator, dehors the factum of their respective ancestors not holding any direct affinity in lineage. 15. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court as also by the learned trial Court are not based upon a proper and mature appreciation of evidence on record. Accordingly, the substantial question of law stands answered in favour of the defendants/appellants and against the plaintiff/respondent. Consequently, the instant appeal is allowed and the judgments and decrees rendered by both the learned Courts below are set aside. In sequel, the suit of the plaintiff is dismissed. No order as to the costs. Accordingly, the substantial question of law stands answered in favour of the defendants/appellants and against the plaintiff/respondent. Consequently, the instant appeal is allowed and the judgments and decrees rendered by both the learned Courts below are set aside. In sequel, the suit of the plaintiff is dismissed. No order as to the costs. All pending applications also stand disposed of. Records be sent back forthwith.