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2016 DIGILAW 200 (HP)

Mohan Lal v. Ghedo

2016-03-04

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal has been instituted against judgment and decree dated 14.7.2006 rendered by learned District Judge (Forest), Shimla, HP in Civil Appeal No. 94-S/13 of 2005/04. 2. “Key facts" necessary for the adjudication of the present appeal are that the respondent No.1-plaintiff No.1, plaintiff No. 2, Smt. Sodha Devi, predecessor-in-interest of Krishna, Radha and Surinder, and plaintiff No. 3 Roshan Lal, (hereinafter referred to as 'plaintiff(s)' for convenience sake) filed a suit for decree of permanent prohibitory injunction restraining the appellants-defendants (hereinafter referred to as 'defendants' for convenience sake) from interfering in any manner, in the land detailed in the plaint. According to the plaintiffs, one Shri Shobia son of Molku was exclusive owner-in-possession of the suit land. He died issueless on 15.3.2001. Plaintiff No.1, Ghedo is the widow of deceased Shobia. He was in a good state of mind. He executed Will dated 12.3.2001. It was attested by Notary Public, Theog, Shri Purshotam Sharma. He, by way of said Will, bequeathed Khasra Nos. 593 and 595 measuring 2 Bigha 17 Biswa exclusively in favour of plaintiffs No. 2 i.e. Late Smt. Soda (deceased) now represented through LRs namely Krishna, Radha and Surender, and No. 3 Roshan Lal, and bequeathed half share of Khasra Nos. 594, 598, 599, 600, 627, 633, 703, 707, 729, 763, 771, 781/1. Plaintiffs are exclusive owners in possession of the land denoted by Khasra Nos. 601, 752, 799 and 801. Defendants have no right, title or interest over the suit land. 3. Suit was contested by the defendants. It is denied that Will dated 12.3.2001 was executed by Shri Shobia in his good state of mind and without any pressure. It was denied that plaintiffs are in possession of the suit land. It was averred that defendant No. 2, was in exclusive possession of the suit land. Shri Shobia was in his advance age and had no issue except his wife i.e. plaintiff No.1, who is also ailing. They were unable to cultivate their land and also to maintain themselves. They were being looked after by Shri Mohan and Sania. In the month of June, 2000, he with the consent of his wife, adopted defendant No. 2 Shri Mohan as his son by performing ‘giving in’ and ‘taking away’ ceremony with the consent of defendant No. 1, Shri Shobu, his wife and defendant No. 2. They were being looked after by Shri Mohan and Sania. In the month of June, 2000, he with the consent of his wife, adopted defendant No. 2 Shri Mohan as his son by performing ‘giving in’ and ‘taking away’ ceremony with the consent of defendant No. 1, Shri Shobu, his wife and defendant No. 2. Ceremonies were performed in the presence of Inder Singh and Jai Krishan, the then vice president of Gram Panchayat, Cheog. Adoption took place as per the local custom prevailing in the area and recognized by the residents as of right continuously and peacefully since times immemorial. Shobia has executed a Will dated 14.3.2001 in favour of defendant No. 2 to the extent of 8 Bigha and in favour of plaintiff No.1, to the extent of 2 Bigha. Defendant No.2 was residing with the deceased since his adoption and also performed his last rites and also visited Haridwar alongwith plaintiff No.1 and her brother. 4. Replication was filed by the plaintiffs. Issues were framed by the learned Civil Judge (Junior Division) on 1.5.2002. Learned Civil Judge (Junior Division), Theog decreed the suit vide judgment dated 28.9.2004. Defendants filed an appeal before the learned District Judge (Forests) Shimla. The learned District Judge (Forests) dismissed the same on 14.7.2006. Hence, this Regular Second Appeal. 5. The appeal was admitted on 26.7.2010, on the following substantial questions of law : “1. Whether will Ex.PA set up by the plaintiffs has not been shown to have been prepared in conformity with provisions of Section 63 of the Indian Evidence Act. 2. Whether will Ex. DA set up by the defendants has been duly proved and it being the last will of late Sh. Shobia suit was required to be dismissed” 6. Mr. G.D. Verma, learned Senior Advocate, on the basis of substantial questions of law framed, has vehemently argued that the Will Ext D-1 has been duly proved and it was the last Will of Late Shobia. 7. Mr. Neeraj Gupta, Advocate, has vehemently argued that the Will Ext. PA set up by the plaintiffs was in accordance with law. 8. I have heard the learned counsel for the parties and also gone through the record carefully. 9. Will Ext. PA is dated 12.3.2001. Ghedo wife of Shri Shobia, has appeared as PW-1. According to her, Will Ext. Mr. Neeraj Gupta, Advocate, has vehemently argued that the Will Ext. PA set up by the plaintiffs was in accordance with law. 8. I have heard the learned counsel for the parties and also gone through the record carefully. 9. Will Ext. PA is dated 12.3.2001. Ghedo wife of Shri Shobia, has appeared as PW-1. According to her, Will Ext. PA was executed by the deceased in favour of plaintiff No.2 i.e. Late Smt. Soda (deceased) now represented through LRs namely Krishna, Radha and Surender, and plaintiff No. 3, in his sound and disposing state of mind. She denied execution of any document in favour of defendant No. 2. 10. PW-2 Shiv Ram deposed that Ext. PA was got scribed from document writer by Shri Shobia in his and Surat Ram’s presence. He was in a sound and disposing state of mind. Contents of the document were read over to him. He, after admitting them to be true and correct, put his signatures over the same in his presence and they also signed the same in his presence. 11. PW-3 Purshotam Sharma deposed that the document was presented before him for attestation by Shobia, who was identified to him by Rati Ram. He read over the contents of the Will to Shobia, who acknowledged the same to be true and correct. He then attested the same. Attesting witnesses were also present. 12. PW-4 Rati Ram also supported the fact of identification of the deceased Shobia by him to PW-3 Shri Purshotam Sharma. Land was exclusively owned and possessed by Shri Shobia, who died on 15.3.2001. 13. DW-1 Mohan Lal has admitted the signatures of Shobia over Ext. PA. Defendants have placed on record Will Ext. D-1 dated 14.3.2001. According to defendant No. 2, he was adopted son of deceased Shobia. 14. DW-2 Geeta Ram has scribed Ext. D-1 and Inder Singh, Jai Krishan and Moti Ram are the attesting witnesses. According to them, Shobia at his house on 14.3.2001 executed Ext. D-1 in favour of defendant No. 2 and plaintiff No.1. He was in sound and disposing state of mind. Document being scribed was read over and explained to him and, he, after admitting the contents of the same to be true and correct, placed his signatures thereon. There is no reference in Ext. D-1 of the earlier Will Ext. PA dated 12.3.2001. Ext. He was in sound and disposing state of mind. Document being scribed was read over and explained to him and, he, after admitting the contents of the same to be true and correct, placed his signatures thereon. There is no reference in Ext. D-1 of the earlier Will Ext. PA dated 12.3.2001. Ext. D-1 was scribed on 14.3.2001 and Shobia died on 15.3.2001. 15. Learned trial Court has noticed variance in the signatures on Ext. D-1 and Ext. PA. Defendant No.2 has admitted signatures of deceased Shobia on Ext. PA. In case, defendant No. 2 was adopted by Shobia, there should have been reference of this fact in Ext. PA. It has come on record that plaintiff No.1 throughout her life lived with Shobia. Defendants have not led any tangible evidence that defendant No. 2 was living with Late Shobia. Learned Courts below have rightly come to the conclusion that the Will Ext. D-1 can not be held to be a valid and genuine document. Defendant No.2 has failed to prove his adoption as per the provisions of the Hindu Adoption and Maintenance Act, 1957. Adoption has taken place after the commencement of the Act i.e. in June, 2000. Age of the defendant at the time of his affidavit was 39 years. It is reiterated that Ext. PA has been proved in accordance with law. Defendants have failed to prove the fact that Will Ext. D-1 is surrounded by suspicious circumstances and the same have not been removed by the defendants. Defendant No.2 has played an active role in the execution of Ext. D-1. 16. Their Lordships of the Hon'ble Supreme Court in Jagdish Chand Sharma v. Narain Singh Saini reported in (2015) 8 SCC 615 , have held that the legislatively prescribed essentials of a valid execution and attestation of a will under Section 63 (c) of the Succession Act are mandatory in nature, so much so that any failure or deficiency in adherence thereto would be at the pain of invalidation of such document/instrument of disposition of property. The interplay of Section 63 (c) of the Succession Act as also Sections 68 and 71 of the Evidence Act and the underlying legislative objective would be of formidable relevance in evaluating the materials on record and recording the penultimate conclusions. Their lordships have held as under : 21. The interplay of Section 63 (c) of the Succession Act as also Sections 68 and 71 of the Evidence Act and the underlying legislative objective would be of formidable relevance in evaluating the materials on record and recording the penultimate conclusions. Their lordships have held as under : 21. As would be evident from the contents of Section 63 of the Act that to execute the Will as contemplated therein, the testator would have to sign or affix his mark to it or the same has to be signed by some other person in his presence and on his direction. Further the signature or mark of the testator or the signature of the person signing for him has to be so placed that it would appear that it was intended thereby to give effect to the writing as Will. The Section further mandates that the Will shall have to be attested by two or more witnesses each of whom has seen the testator sign or affix his mark to it or has seen some other persons sign it, in the presence and on the direction of the testator, or has received from the testator, personal acknowledgement of a signature or mark, or the signature of such other persons and that each of the witnesses has signed the Will in the presence of the testator. It is, however, clarified that it would not be necessary that more than one witness be present at the same time and that no particular form of attestation would be necessary. 22. It cannot be gainsaid that the above legislatively prescribed essentials of a valid execution and attestation of a Will under the Act are mandatory in nature, so much so, that any failure or deficiency in adherence thereto would be at the pain of invalidation of such document/instrument of disposition of property. 22.1 In the evidentiary context Section 68 of the Act 1872 enjoins that if a document is required by law to be attested, it would not be used as evidence unless one attesting witness, at least, if alive, and is subject to the process of Court and capable of giving evidence proves its execution. 22.1 In the evidentiary context Section 68 of the Act 1872 enjoins that if a document is required by law to be attested, it would not be used as evidence unless one attesting witness, at least, if alive, and is subject to the process of Court and capable of giving evidence proves its execution. The proviso attached to this Section relaxes this requirement in case of a document, not being a Will, but has been registered in accordance with the provisions of the Indian Registration Act 1908 unless its execution by the person by whom it purports to have been executed, is specifically denied.” 17. The learned Courts below have correctly appreciated the oral and documentary evidence. Substantial questions of law are answered accordingly. 18. In view of the discussion and analysis made hereinabove, there is no merit in the appeal and the same is dismissed. Pending application(s), if any, also stand disposed of. No costs.