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2016 DIGILAW 2002 (HP)

Mela Ram v. Satya Pal

2016-09-19

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. This appeal stands directed against the impugned judgment of the learned District Judge, Kinnaur Civil Division at Rampur Bushahr, Himachal Pradesh, whereby it partly decreed the suit of the plaintiff whereby he stood declared owner in possession of Khasra No. 738 and the superstructure thereon Khasra Number whereof is situated in Mauza Syarla Barshol (Teklech), Tehsil Rampur Bushahr, District Shimla. However, the remaining prayer of the plaintiff qua deceased testator not executing a valid and operative Will stood rejected. 2. The facts necessary for rendering a decision on the instant appeal are that the Mela Ram plaintiff has filed a suit for declaration and injunction. It was averred that the predecessor in interest of the parties of the suit late Shri Chiranji Lal died on 6.1.1989 and is survived by the plaintiff and defendants No. 1 to 5 who are all his sons. It was averred that the plaintiff settled at Taklech Chak, Syarla Barshol, District Shimla, Pargana and Tehsil Rampur Bushahr and purchased land there and started raising construction thereon without any assistance or help of any sort either from late Sh. Chiranji Lal or from any of the defendants. It was pleaded that the plaintiff alone is absolute owner of the suit land and had been enjoying the fruits i.e. income of the orchard at Theda Chikri as well as rent of the built up property. It has been further averred that some will was got executed by defendants No. 1 to 5 taking undue advantage of the revenue entries. It is further pleaded that on the basis of the alleged will mutation in respect of the properties mentioned in the suit cannot cast any shadow on the title of the plaintiff, hence, this suit. 3. The defendant filed written statement and thereby resisted and contested the suit of the plaintiff by taking preliminary objection qua maintainability, limitation, estoppel and suppression of material facts. On merits, the defendant termed the averments made in the plaint as wrong and incorrect and averred that the plaintiff is not in possession of the property in dispute. As the plaintiff was not having any source of income thus he started working with his father at village Taklech where he was helping the joint business with his father and living jointly with his father and brothers. It is further averred that no construction was raised by the plaintiff. As the plaintiff was not having any source of income thus he started working with his father at village Taklech where he was helping the joint business with his father and living jointly with his father and brothers. It is further averred that no construction was raised by the plaintiff. It has been pleaded that the father of the defendants had made an exhaustible will in order to avoid the litigation amongst the sons. It has been admitted that Chiranji Lal died after about a month of execution of the Will and was in a sound and disposing mind till his death. It is averred that the suit of the plaintiff is false, frivolous, misconceived, merits dismissal and same be dismissed. 4. On the pleadings of the parties, the following issues interse the parties at contest were struck:- 1. Whether the plaintiff is owner in possession of the building built on Khasra No. 737 and 738 in village Syarla Barshol and Taklech? OPP. 2. Whether the plaintiff is the exclusive owner of the land measuring 19 Bighas 14 biswas situated in village Theda-Chikri, Tehsil Rampur, District Shimla, OPP. 3. Whether mutation Nos. 49 and 11 dated 10.09.1990 are illegal, void and merely paper entries, if so, its effect? OPP. 4. Whether the plaintiff, alongwith the defendants is owner in possession in equal share of the property situated in village Dofda, Shah and Uchi, Tehsil Rampur, District Shimla, OPP. 5. Whether mutations in respect of the property situated in villages Dofda, Shah and Uchi are illegal, null, void and merely paper entries? OPP. 6. Whether the plaintiff alongwith the defendants is owner in possession, in equal share in respect of the property situated in village Rehi, Tehsil Amb, District Una, OPP. 7. Whether the plaint is defective for want of better particulars and is liable to be rejected? OPD. 8. Whether the suit is bad for misjoinder of casue of action as well as for multifariousness? OPD. 9. Whether the suit is not maintainable in the present form? OPD. 10. Whether the suit had not been property valued for the purposes of Court fee and jurisdiction? OPD. 11. Whether the plaintiff is estopped from filing the present suit owing to his acts and conduct, as alleged? OPD. 12. OPD. 9. Whether the suit is not maintainable in the present form? OPD. 10. Whether the suit had not been property valued for the purposes of Court fee and jurisdiction? OPD. 11. Whether the plaintiff is estopped from filing the present suit owing to his acts and conduct, as alleged? OPD. 12. Whether the defendants are estopped from contesting the title of the plaintiff in respect of the property situated in villages Syarla, Barshol, Taklech, Theda-Chikri, Tehsil Rampur, District Shimla, due to their acts and conduct, as alleged? OPP. 13. Whether the plaintiff has become owner by way of adverse possession of the property situated in villages Sayarla Barshol, Taklech and Theda Chikri Tehsil Rampur, District Shimla? OPP. 14. Whether Shri Chiranji Lal, father of the parties had executed a valid will, if so, its effect? OPD. 15. Relief. 5. The learned trial Court on an appraisal of evidence, adduced by the parties at contest partly decreed the suit of the plaintiff. Now the plaintiff has instituted therefrom the instant Regular First Appeal before this Court, whereby he assails the findings recorded in its impugned judgment and decree by the learned trial Court. 6. Chiranji Lal, deceased testator, executed a Will qua his estate, Will whereof stands comprised in Ext.DW-5/A. The learned counsel for the plaintiff/appellant has raised awakened arguments qua execution of the relevant testamentary disposition by the deceased testator Chiranji Lal standing surrounded by suspicious circumstances, whereupon he contends qua the depositions of attesting witnesses thereto who testified as DW-5 and DW-6 warranting their standing discarded. The suspicious circumstances surrounding the execution of the Ext.DW-5/A stands contended by him to stand galvanized by the factum of (a) Ext.DW-5/A in its concluding paragraph holding a communication qua the deceased testator signing it whereas his thumb impressions occurring thereon (b) the trite factum of the deceased testator devising equally amongst the legatees a house occurring in village Taklech, perse smacking of suspicion given the plaintiff owning it hence on demise of Chiranji Lal his standing exclusively entitled to it whereupon a concomitant deduction is spurred of the defendants casting influence upon the deceased testator in securing its devise in their favour whereupon hence the validity of the relevant testamentary disposition comprised in Ext.DW- 5/A gets eroded. Given the deceased testator standing aged 97 years at the time of his executing Ext.DW-5/A also with uncontroverted evidence making an evincing display of the deceased testator running a business establishment besides in course thereof as unveiled by PW-1 qua his applying for installation therein of a meter also as displayed by PW-8 of the deceased testator while holding proprietorship of a commercial establishment nominclatured as M/s Chiranji Lal Mela Ram his hence being an income-tax assessee, when evince therefrom an inference of the deceased testator being literate renders the occurrence of his thumb impressions on Ext.DW-5/A to arouse stark suspicion qua his at the relevant time standing possessed of an awakened volitional mental capacity whereupon hence its execution by him is bereft of vigour given obviously its execution not spurring from his pure, conscious besides awakened volition. Also he contends of with a disclosure in the cross-examination of DW-6, a marginal witness to Ext.DW-5/A, of the deceased testator signaturing a page in his presence does with redoubled vigour impute suspicion to the factum of occurrence of his thumb impressions on Ext.DW-5/A. At the outset the initial submission addressed by the learned counsel for the appellant qua with the deceased testator under Ext.DW-5/A devising equally amongst its legatees a house situated in village Taklech hence infusing suspicion qua his voluntarily making Ext.DW-5/A, suspicion whereof ingraining it stands aroused from the factum of his constructing it whereupon he contends of it thereupon being evidently inferable of the defendants casting influence qua its execution upon the deceased testator, is a submission impinging upon the valid and due execution of Ext.DW-5/A, factum whereof stood enjoined to be efficaciously proven by the defendants by theirs adducing vigorous evidence. The vigour of the evidence adduced by the defendants qua the facet aforesaid peremptorily warranted its satisfying the conscience of this Court. The concert of the defendants to rid of its vigour the aforesaid submission of the learned counsel for the plaintiff for denuding the tenacity of Ext.DW-5/A, has attained success as manifested by the echoings occurring in the testimonies of DW-2, DW-3, DW-7 and DW-8. DW-3 has unequivocally voiced in his testification qua his standing employed as a mason by the deceased testator for raising construction of his house at Village Taklech. Moreover, he has testified qua wages standing defrayed to him by the deceased testator. DW-3 has unequivocally voiced in his testification qua his standing employed as a mason by the deceased testator for raising construction of his house at Village Taklech. Moreover, he has testified qua wages standing defrayed to him by the deceased testator. The testimony of DW-2 when remains unshred of its vigour during the course of his standing subjected to a rigorous cross-examination by the learned counsel for the plaintiff, hence imbues it with formidable vigour for making an apt conclusion therefrom of the plaintiff not adducing cogent evidence displaying the factum of his raising a house in village Taklech. DW-7 corroborates DW-3 by testifying of the deceased testator constructing a house at village Taklech. The testimony of the aforesaid witnesses undermines the propagation of the plaintiff qua his raising a house at village Taklech also when no cogent evidence stands adduced by the plaintiff comprised in bills displaying his purchasing material for raising construction of a house at village Taklech, as a corollary, non adduction of the aforesaid evidentiary material does not empower him to canvass qua his raising a house at village Taklech nor can he contend qua his to the exclusion of the other legatees named in Ext.DW-5/A standing singularly entitled to from the deceased testator receive a bequest qua it nor he stands entitled to canvass qua in its standing equally devised amongst all the litigants, it perse pronouncing the factum of, qua the defendants in the execution of Ext.DW-5/A exerting influence upon the deceased testator. Obviously he cannot canvas of the aforesaid manner of deceased testator devising amongst the legatees named therein, a house existing in village Taklech constituting a suspicious circumstance for dis-imputing validity to Ext.DW-5/A. Ext.DW-5/A is a registered deed of conveyance. Obviously he cannot canvas of the aforesaid manner of deceased testator devising amongst the legatees named therein, a house existing in village Taklech constituting a suspicious circumstance for dis-imputing validity to Ext.DW-5/A. Ext.DW-5/A is a registered deed of conveyance. For a Will to attain a sacrosanct pedestal qua its standing construed to be proven to be validly and duly executed, its propounders were enjoined to adduce evidence comprised in the depositions of marginal witnesses thereto who unequivocally testify qua the deceased testator while standing possessed of enlivened cognitive faculties his proceeding to volitionally get it scribed also they were enjoined to bereft of equivocation, echo in their respective testifications qua in succession to the contents of the relevant testamentary disposition standing read over and explained to him besides his understanding them, his thereafter in their respective presence appending his signatures or his thumb impression thereon whereafter evidently in his presence both the marginal witnesses thereto appended thereon their respective signatures or thumb impressions. The propounder of Ext.DW-5/A qua satiation of the aforesaid indispensable statutory tenets standing begotten for hence validity standing imputed to Ext.DW-5/A depended upon the testimony of DW-5 and DW-6. Both the aforesaid DWs are marginal witnesses to Ext.DW-5/A. Both of them with mutual concurrence bereft of any intra se contradictions besides bereft of any equivocation rather with firmness testified qua the deceased testator after getting the Will scribed by its scribe preceding whereof he held confabulations with him whereafter on its contents standing readover and explained to the deceased testator contents whereof stood comprehended by him, the latter in their respective presence appending his thumb impressions thereon, in succession whereto, both with intra se harmony depose qua theirs also in the presence of the deceased testator respectively signaturing it, testifications whereof secures with aplomb an inference qua satiation of the statutory tenets embodied in Section 63 of the Indian Succession Act, standing begotten, wherefrom the apt sequel is of Ext.DW-5/A warranting its standing construed to be proven to be validly and duly executed. The provisions of Section 63 of the Indian Succession Act stand extracted hereinafter:- “63. The provisions of Section 63 of the Indian Succession Act 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 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 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. The effect of the aforesaid conclusion does subsume the effect of the espousal of the learned counsel for the appellant, of with the deceased being a businessman his being hence literate suspicion standing aroused qua the factum of his thumb marking Ext.DW-5/A also mutes the effect of his submission qua suspicion standing engendered from a perusal of the concluding portion of Ext.DW-5/A wherewithin a narration is held of the deceased testator signaturing it. In extenso though DW-6 in his cross-examination acquiesces to the factum of deceased testator in his presence signaturing a page whereas with Ext.DW-5/A standing thumb marked, does provide a plank to the counsel for the appellant to contend of with the deceased testator thumb marking Ext.DW-5/A arousing a pervasive suspicion qua its valid execution nonetheless with both DW-5 and DW-6 marginal witnesses thereto making vivid pronouncements in their respective testifications, pronouncements whereof are in tandem with the apt statutory tenets also beget satiation of the relevant statutory tenets whereupon an inference is erectable qua the relevant Will standing invincibly proven to be validly and duly executed besides when in their respective cross-examinations there is no imputation qua them by the counsel for the plaintiff who held them to cross-examination qua while theirs in their respective examination in chief testifying qua the valid and due execution of Ext.DW-5/A theirs colluding, conniving besides holding complicity with the defendants nor also when any assault stands mounted upon them qua their respective integrity or disinterestedness, foments an inference of with both marginal witnesses to Ext.DW-5/A testifying qua satiation standing begotten of the relevant tenets engrafted in Section 63 of the Indian Succession Act, of hence their relevant testifications warranting deference standing meted thereto. Furthermore, the effect of DW-6 acquiescing in his cross-examination of the deceased testator in his presence signaturing a page rather does erode the vigour of the contention of the learned counsel for the appellant of the deceased testator at the relevant time not possessing enlivened cognitive faculties nor also given his advanced stage his holding the relevant intelligibility to comprehend the contents of Ext.DW-5/A, contrarily it bespeaks of the deceased testator holding both the relevant level of comprehension to understand the contents of Ext.DW-5/A also echoes qua his executing Ext.DW-5/A while his thereat standing possessed of fully awakened cognitive faculties wherefrom the ensuing conclusion of it being amenable to a construction of it being not bereft of the sine qua none of it being his volitional disposition. 7. 7. Be that as it may, with the marginal witnesses to Ext.DW-5/A for reasons aforesaid lending trustworthy and dispassionate testifications qua satiation of the statutory tenets embodied in Section 63(a) standing begotten also when their respective testifications do not unveil qua theirs in rendering their depositions qua the relevant fact, of theirs holding leanings towards the defendants nor when their testifications unveil of theirs holding complicity with them, fosters from this Court a conclusion of Ext.DW-5/A standing unflinchingly proven to be validly and duly executed by the deceased testator bereft of any exertion upon him of any influence by the relevant legatees also the effect of unflinching testifications of marginal witnesses to Ext.DW-5/A qua the relevant trite factum of the deceased testator thumb in their respective presence thumb marking Ext.DW-5/A is of it not working any conclusion of its personifying his ill mental state. The relevant testifications of DW-4 and DW-5 qua the relevant fact of the deceased testator thumb marking it in their respective presence preceding whereto he on its contents standing readover to him, he comprehended them, may have suffered effacement on upsurging of evidence personifying the factum of his relevant thumb impressions which exist thereon not holding congruity vis-a-vis the identity of the deceased testator, conspicuously when throughout the cross-examination of the marginal witnesses no suggestion stand put to them by the counsel for the plaintiff qua Ext.DW-5/A not holding the thumb impressions of the deceased testator also when it was not incumbent upon the propounders of Ext.DW-5/A, to, apart from proving its valid and due execution by adducing the relevant statutory evidence of the marginal witnesses to Ext.DW-5/A wherein they pronounced qua hence its standing thumb marked by the deceased testator adduce further evidence qua his thumb marks existing thereon belonging to him significantly when asking for adduction by the defendants further evidence beyond the statutory evidence for thereupon begetting satiation of the tenets prescribed in Section 63 of the Indian Succession Act would derogate from the spirit of the mandate of the law cumulatively rather hence for omission of the counsel for the plaintiff to put the aforesaid suggestions to the relevant marginal witnesses of Ext.DW-5/A while holding them to cross-examination begets a conclusion of the plaintiff acquiescing to the factum of Ext.DW-5/A holding the thumb impressions of his deceased father. Moreover, the effect of the appellant not contesting the tenacity of the relevant thumb impressions borne thereon also his at no stage espousing of the thumb impressions of the deceased testator not existing elsewhere than in Ext.DW-5/A tantamounts to his acquiescing qua the deceased testator taken to both sign besides thumb mark documents. In sequel thereof the inference, is of his thumb marking Ext.DW-5/A not warranting arousal of any iota of skepticism, predominantly with the appellant also not concerting to obtain the opinion of the finger print expert qua the authenticity of the thumb impressions existing on Ext.DW- 5/A is ipso facto a magnified articulation qua his only raising a specious plea qua the relevant thumb impressions borne on Ext.DW-5/A not holding any virtue of authenticity. In addition with the relevant best evidence for pronouncing qua the valid and due execution of Ext.DW-5/A stood pronounced by marginal witnesses thereto, it was not incumbent upon the propounder to adduce documents holding the thumb impression of the deceased testator for facilitating the finger print expert to on comparing them with his thumb impressions borne on Ext.DW-5/A render an opinion qua their inter se congruity nor also any adverse inference is drawable vis-a-vis the propounders for any omission on their part to adduce other documents whereon the thumb impressions of the deceased testator exist. In making the aforesaid conclusion this Court seeks support from a judgment of the Hon’ble Apex Court reported in S. Sundaresh Pai and others vs. Sumangala T.Pai (Mrs.) and another ( 2002) 1 SCC 630. 8. Ext.DW-5/A was registered by the registering officer concerned. Its registration raises a presumption qua hence its valid execution. It was incumbent upon the appellant to erode the presumption qua its valid execution, by adducing the relevant best evidence wherefrom upsurgings occurred qua the marginal witnesses thereto also the registering officer concerned while making their respective endorsements thereon theirs holding complicity with the defendants. However, the aforesaid evidence is amiss. Consequently, the presumption qua the valid execution of Ext.DW-5/A spurring from its standing registered by the competent registering authority remains undisplaced rather it acquires conclusivity. Even in the relevant endorsements which occur on Ext.DW-5/A, the deceased testator has embossed his thumb impressions. However, the aforesaid evidence is amiss. Consequently, the presumption qua the valid execution of Ext.DW-5/A spurring from its standing registered by the competent registering authority remains undisplaced rather it acquires conclusivity. Even in the relevant endorsements which occur on Ext.DW-5/A, the deceased testator has embossed his thumb impressions. Ext.DW-5/A unveils the factum of embossing thereon by the deceased testator of his left thumb impressions standing both succeeded besides preceded by the Sub Registrar concerned also making compatible endorsements thereon manifestive qua his drawing satisfaction qua on the contents of Ext.DW-5/A standing read over and explained to him by him his comprehending them whereafter embossing thereon of thumb impressions by the deceased testator occurred, unflodments whereon occurring therein beget with amplifying vigour a marked conclusion of the deceased testator volitionally making Ext.DW-5/A. Also the appellant did not concert to get the thumb impressions borne on the relevant endorsements occurring in Ext.DW-5/A compared with the thumb impression of the deceased testator occurring in Ext.DW-5/A whereas his apposite concert would have unearthed the factum of the thumb impression of the deceased testator occurring on the relevant endorsement borne on Ext.DW-5/A holding no authenticity given theirs holding incongruence with the relevant thumb impression occurring on Ext.DW-5/A. The omission of the plaintiff to make the aforesaid concert is connotative of his acquiescing to the factum of the thumb impressions existing thereon standing owned by his deceased father. Furthermore, the aforesaid endeavour would have secured a conclusion of the Sub Registrar concerned besides one Amrit Lal the identifier of Ext.DW-5/A who also is a marginal witness thereto colluding with the defendants for securing for the benefit of the defendants its fictitious execution, contrarily with lack of concert by the plaintiff qua the aforesaid facet secures with invincible formidability an unflinching conclusion qua the valid and due execution of the relevant Will by the deceased testator. 9. Accordingly, I find no merit in the appeal, which is accordingly dismissed and the impugned judgment of the learned District Judge, Kinnaur at Rampur Bushahr, is upheld. Decree sheet be prepared accordingly. Pending application, if any, also stands disposed of.