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2016 DIGILAW 2669 (HP)

Arun Sharma v. Nain Parkash

2016-12-16

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. Under the impugned rendition recorded by the learned trial Court, the suit of the plaintiff whereby he had sought declaration qua mutation No. 9603 attested on 26.09.2003 besides mutation No. 5108 attested on 30.05.2003 qua the suit land being declared to be null and void stood dismissed. The plaintiff/appellant herein stands aggrieved by the impugned rendition recorded by the learned trial Court wherefrom he has instituted the instant appeal here before. 2. Briefly stated the facts of the case are that the suit property described in the plaint was owned and possessed by one Smt. Savitri wife of Shri Jagdish Parsad, who was the real sister of the father of the plaintiff Shri. Ghanshyam. Smt. Savitri being an issueless widow used to live with the plaintiff being her nephew and was being looked after and maintained by him and feeling pleased with the services rendered by the plaintiff to her, she of her own free will executed her last and final Will which was registered on 18.05.1997 bequeathing all her movable and immovable property to him. It is further pleaded that after the death of Smt. Savitri on 7.11.2002 all the property belonging to her was inherited by him on the basis of Will and the mutation No.9603 was entered and attested in his name. It is also mentioned that during the life time of Smt. Savitri land measuring 6-9-13 out of 18-0-0 bighas of land which is area of khasra No.6603 in phati Kharahal was acquired by the PWD and Smt. Savitri along with the plaintiff and other co-sharers filed a reference petition against the award passed by the Collector in the Court of District Judge, Kullu, which was registered as petition No.121 of 1998 titled as Nain Parkash and others versus Collector Land Acquisition and others. The District Judge enhanced the compensation vide order dated 18.9.2000 and the share of Smt. Savitri amounting to Rs.8,90,958 was deposited by the Government in the Court. The District Judge enhanced the compensation vide order dated 18.9.2000 and the share of Smt. Savitri amounting to Rs.8,90,958 was deposited by the Government in the Court. It has been further pleaded that defendants No.1 to 4 and 6 to 8 filed appeal before the Sub Divisional Collector, Kullu against mutation No.9603 in which it was claimed that the property of Smt. Savitri has been inherited by them on the basis of a Will dated 22.9.1999, which will according to the plaintiff was forged and fictitious and has been set up in connivance with the scribe and the marginal witnesses with the ulterior motive of grabbing the suit property and the Sub Divisional Collector, Kullu wrongly set aside mutation No.9603 and remanded the matter and thereafter he wrongly attested the mutation in favour of the defendants on the basis of bogus, fictitious and forged Will set up by them. It is pleaded that defendants No.1 to 8 in connivance with defendants No. 9, 11 to 14 and 18 and revenue officials got mutation No.5108 of phtati Dhalpur attested and sanctioned in their name behind their back, hence, this mutation is also illegal, void and inoperative. It has been further pleaded that the property is in the possession of the plaintiff as owner being the sole heir of Smt. Savitri on the basis of the Will executed by her on 18.5.1997. Hence the suit. 3. The suit of the plaintiff was contested by defendants No.1 to 9, 11 to 14 and 18 by filing a joint written statement. Separate written statements were filed by defendant No.10 and defendants No.15, 16 and 17. 4. In the written statement instituted by defendants No.1 to 9, 11 to 14 and 18 preliminary objections have been taken inter alia locus standi, estoppel, valuation for the purpose of court fee and jurisdiction, plaintiff has not come to the Court with clean hands and that the plaintiff is not in exclusive possession of the suit property and the contesting defendants are in joint possession except the land measuring 0-7-0 bigha comprised in khasra No. 635 min which is in exclusive ownership and possession of defendant No.5 Smt. Indra. Hence, the suit for declaration alone is not maintainable. On merits, it is submitted that Smt. Savitri had four brothers namely Sukh Sagar, Duni Chand Jeevan Sharma and Ghansham,who all were the sons of Shri Param Dev. Hence, the suit for declaration alone is not maintainable. On merits, it is submitted that Smt. Savitri had four brothers namely Sukh Sagar, Duni Chand Jeevan Sharma and Ghansham,who all were the sons of Shri Param Dev. It is denied that Smt. Savitri used to reside only with the plaintiff, rather that she had love and affection for all her brothers and their families and used to reside at her in-laws place as well as with her parents and after the death of her parents with her brothers and their families. It is submitted that Smt. Savitri did not claim any share over the estate left by her parents and surrendered her share in favour of her four brothers equally and she had intended that the land inherited by her from her parents side should go to all the four brothers in equal share except the land measuring 0-7-0 bighas comprised in khasra No.635 min which she had already given to defendant No.5 about 25 years back. It is also submitted that the plaintiff being a nephew of Smt. Savitri and not an earning hand at the time of executing of Will dated 22.9.1999. Smt. Savitri bequeathed the land situated in phati and Kothi Kais, all bank and post office deposits exclusively in favour of the plaintiff in addition to the share of phati Kharahal Kothi Kais, Tehsil and District Kullu and keeping in view all these circumstances, she executed a Will with her free sound disposing mind on 22.9.1999 and got it registered. It is averred that after her death plaintiff as well as contesting defendants performed her last rites. The plaintiff and defendants No.1 to 8 inherited the estate left by her, which she had acquired from her parents to the extent of their respective shares, as per Will dated 22.9.1999 and the mutation to this effect was rightly attested and sanctioned in their favour. It is also submitted that no will was executed by Smt. Savitri on 12.5.1997. Further that the Will set up by the plaintiff is forged, fictitious and shrouded with suspicious circumstances as Smt. Savitri was having good relations with the families of her brothers and so there was no occasion for her to create any distinction or discrimination amongst the families of her aforesaid four brothers. Further that the Will set up by the plaintiff is forged, fictitious and shrouded with suspicious circumstances as Smt. Savitri was having good relations with the families of her brothers and so there was no occasion for her to create any distinction or discrimination amongst the families of her aforesaid four brothers. It is also submitted that the property which Smt. Savitri had inherited from her husband side has come to defendant No.10 being the legal heir from her husband's side and he is in possession of the same. It is expressly alleged that the claim of the plaintiff that he alone inherited the property of Smt. Savitri is wrong and the plaintiff got a mutation sanctioned in his favour by conniving with the revenue officials which was later reviewed in their favour on the basis of the Will dated 22.9.1999. Hence, the suit of the plaintiff is not maintainable and the same is liable to be dismissed with costs. 5. In the written statement filed by defendant No.10, preliminary objections have been taken that the plaintiff is not in possession of any part of the estate left by deceased Smt. Savitri in phati Dhalpur and hence the suit for declaration is not maintainable secondly that the value of the suit property is more than eighty lac rupees and therefore has not been properly valued for the purpose of Court fee and jurisdiction. Lastly that the plaintiff has no concern with the estate of deceased Savitri in phati Dhalpur as the same was inherited by the deceased from her husband late Shri Jagdish Parsad and after her death it has been inherited by defendant No.10, who is the real brother of Shri Jagdish Parsad, husband of Smt. Savitri. On merits, it is contended that Smt. Savitri had four brothers and after the death of her husband she was residing in the house of her late husband at Dhalpur and was being looked after by defendant No.10 and after the death of her deceased husband, she was not living with the plaintiff, nor he was rendering any services to her. It is also denied that any will was executed by her in favour of the plaintiff. It is also denied that any will was executed by her in favour of the plaintiff. It is also mentioned that the compensation awarded by the Court of District Judge Kullu has been deposited in the Court and since there was no will executed by Smt. Savitri, therefore, the plaintiff alone is not entitled to claim the amount of her share. Defendant No. 10 has also alleged that no will was executed by Smt. Savitri on 22.9.1999 ad the same is also forged and fictitious. However, that estate of deceased Savitri in phati Dhalpur had rightly been mutated in favour of defendant No.10 and the plaintiff is bound by the same. 6. Written statement was also filed by defendants No.15, 16 and 17 and they have admitted the claim of the plaintiff. 7. The plaintiff/appellant herein filed replications to the written statements of the defendants/respondents herein, wherein, he denied the contents of the written statements and re-affirmed and re-asserted the averments, made in the plaint. 8. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether deceased Savitri Devi has executed a valid Will dated 12.5.1997 in favour of plaintiff as alleged? OPP 2. In case issue No.1 proved in affirmative, whether the plaintiff is in possession of the suit property? OPP 3. Whether deceased Savitri Devi has executed a valid and effective Will dated 22.9.1999 in favour of defendants No.1 to 8 and plaintiff, which is the last and final Will of deceased Savitri Devi, as alleged. If so, its effect? OPD 1 to 8. 4. Whether defendant No.10 is entitled to inherit the suit land and property of deceased Savitri Devi in phati Dhalpur described in para 1(E) to 1(h) of the plaint? OPD-10. 5. In case issue No.3 is proved in affirmative, whether the defendants No.1 to 9 and 11 to 18 are entitled to get the amount of award deposited in reference No.121/98, as alleged? OPD 1 to 9 and 11 to 18. 6. Whether the plaintiff has locus standi to file the present suit? OPP. 7. Whether the plaintiff has cause of action to file the suit? OPP. 8. Whether the suit has been properly valued for the purpose of court fee and jurisdiction as alleged? OPP. 9. Whether the suit is not maintainable? OPD 10. 6. Whether the plaintiff has locus standi to file the present suit? OPP. 7. Whether the plaintiff has cause of action to file the suit? OPP. 8. Whether the suit has been properly valued for the purpose of court fee and jurisdiction as alleged? OPP. 9. Whether the suit is not maintainable? OPD 10. Whether the plaintiff is estopped from filing the suit, as alleged? OPD 11. Relief. 8. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiff/appellant herein. 10. Now the defendant/appellant has instituted the instant Regular First Appeal before this Court assailing the findings recorded in its impugned judgment and decree by the learned trial Court. 11. Deceased testator Savitri Devi died issueless. During her life time she executed on 12.05.1997 a Will qua the suit property vis-a-vis the plaintiff. The Will of deceased testator Savitri Devi executed on the date aforesaid stands embodied in Ex.PW3/A. It is a registered testamentary disposition of deceased Savitri Devi. The onus of proving the factum qua valid and due execution of Ex. PW3/A stood cast upon its propounder, the plaintiff. In discharge of the relevant onus, the plaintiff within the ambit of Section 63 of the Indian Succession Act, through a marginal witness thereto one Shri Chander Singh Thakur proved qua it standing scribed at the instance of deceased testator by Baldev Krishan in the presence of the aforesaid marginal witness thereto where after the aforesaid marginal witness thereto unequivocally testifies qua its contents standing reaodver and explained by its scribe to the deceased testator, contents whereof on standing comprehended by her besides standing admitted by her to be correct, she proceeded to in his presence also in the presence of its scribe append her signatures thereon thereafter he besides Ashok kumar in the presence of the deceased testator proceeded to append their respective signatures thereon. The aforesaid testification of a marginal witness to Ex.PW3/A falls in absolute concurrence with the mandatory requirement contemplated in Section 63 of the Indian Succession Act, rendering it to be construable to be proven to be validly and duly executed. The aforesaid testification of a marginal witness to Ex.PW3/A falls in absolute concurrence with the mandatory requirement contemplated in Section 63 of the Indian Succession Act, rendering it to be construable to be proven to be validly and duly executed. The inference aforesaid gets renewed strength from Shri Chander Singh Thakur, who while testifying as PW-3 making a communication therein qua after its pre-registration execution in consonance with the mandate of Section 63 of the Indian Succession Act occurring at Dhalpur Kullu, Ex.PW3/A standing on the same day carried for registration to the office of Sub Registrar Kullu whereat on its presentation before the Sub Registrar concerned, the latter thereat also completing the ritual of reading over its contents to the deceased testator, contents whereof on standing comprehended thereat by the deceased testator, she in his presence appended her signatures thereon where after the Sub Registrar concerned made a sealed signatured endorsement on Ex.PW3/A qua the factum aforesaid. The relevant sealed besides signatured endorsement occurring on Ex.PW3/A, endorsement whereof made by the Sub Registrar concerned holds a portrayal qua its embossing thereon standing preceded by its contents standing explained by him to the deceased testator where after she comprehended them besides accepted them to be true and correct, enjoys a presumption of truth. Though the aforesaid presumption is rebuttable, nonetheless, no cogent evidence stands adduced by the defendants qua the presumption of truth carried by the sealed besides signatured endorsement made on Ex.PW3/A by the Sub Registrar concerned unraveling the aforesaid factum, holding no tenacity. Consequently, this Court is enjoined to conclude qua Ex.PW3/A standing firmly proven to be validly and duly executed by the deceased testator. 12. Be that as it may, the deceased testator subsequent to hers executing Ex.PW3/A proceeded to on 22.9.1999 execute a testamentary disposition qua the property embodied therein vis-a-vis defendants No.1 to 8 and the plaintiff. Consequently, this Court is enjoined to conclude qua Ex.PW3/A standing firmly proven to be validly and duly executed by the deceased testator. 12. Be that as it may, the deceased testator subsequent to hers executing Ex.PW3/A proceeded to on 22.9.1999 execute a testamentary disposition qua the property embodied therein vis-a-vis defendants No.1 to 8 and the plaintiff. The onus of proving of trite factum of Ex.DW2/A satiating the statutory ingredients of its standing proven to be validly and duly executed comprised in the testimony of a marginal witness thereto emphatically proving qua the deceased testator in his presence appending her signatures thereon where after he in the presence of the deceased testator embossing his signatures thereon stands unfolded by DW-4 Umesh Sharma, a marginal witnesses to Ex.DW2/A, who testifies qua on 22.9.1999 one Mohinder Singh in his presence at the instance of the deceased testator scribing Ex.DW2/A where after the deceased testator in his presence besides in the presence of another marginal witness thereto one Jindu Ram after understanding its contents on theirs standing reaodver and explained to her by its scribe appended her signatures thereon, whereupon he testifies qua both he as well as the other marginal witness thereto in the presence of the deceased testator subscribing their respective signatures thereon. He proceeded to testify qua thereafter Ex.DW2/A standing carried to the office of Sub Registrar concerned for registration whereat also the Sub Registrar concerned readover its contents to the deceased testator, who on understanding them also on hers admitting its contents to be true and correct proceeded to in his presence append her signatures thereon, where after the Sub Registrar concerned recorded the apposite sealed signatured endorsement on Ex.DW2/A qua the facet aforesaid. The testification of DW-4 when is in tandem with the statutory mandatory requirement embodied in Section 63 of the Indian Succession Act also when the apposite sealed signatured endorsement of the Sub Registrar concerned occurring thereon holds a presumption of truth yet when for rebuttal thereof no cogent evidence standing adduced by the plaintiff thereupon Ex.DW2/A is to stand concluded to be proven to be validly and duly executed by the deceased testator. 13. Be that as it may, Ex. 13. Be that as it may, Ex. DW 2/A stood executed by the deceased testator subsequent to the execution of Ex.PW3/A, in sequel, whereof the subsequently executed valid testamentary disposition of the deceased testator comprised in EX.DW2/A whereby she bequeathed her property embodied therein vis-a-vis defendants No.1 to 8 and the plaintiff, ipso facto will prevail as also annuls her previous testamentary disposition comprised in Ex.PW3/A dehors no recital occurring in Ex.DW3/A manifestive of thereto the deceased testator canceling her previous testamentary disposition comprised in Ex.PW3/A. 14. The learned Senior Counsel appearing for the appellant herein/plaintiff has contended with vigour qua with evidently, the beneficiary besides one of the legatee of Ex.DW2/A pro-actively participating in the execution of Ex.DW2/A renders it to not acquire any legitimacy rather thereupon an aura of suspicion surrounds the execution of Ex.DW2/A. However, the aforesaid espousal made here at by the learned Senior Counsel for the appellant herein/plaintiff is to stand discountenanced significantly with imminent proof emanating qua the valid and due execution Ex.DW2/A. Imperatively also when Ex.DW2/A for reasons afore stated stands unflichingly proven to be validly and duly executed besides when Ex.DW2/A holds there within recitals qua the making by the Sub Registrar concerned of a sealed signatured endorsement as made thereon standing preceded by its contents standing reaodver and explained by him to the deceased testator, whereupon, the latter on understanding them also hers admitting them to be true and correct appended her signatures thereon in his presence, endorsement whereof when has remained unscathed of its efficacy by any cogent evidence standing adduced by the plaintiff/appellant herein for hence belying its vigour, it thereupon acquires an aura of probative worth. 15. Also the learned Senior Counsel appearing for the appellant has contended qua the non occurrence of any recital in Ex.DW2/A of land owned by the deceased testator in Phati Dhalpur holding a huge area of 4-12-0 bighas renders the execution of Ex.DW2/A to be a suspicious document. 15. Also the learned Senior Counsel appearing for the appellant has contended qua the non occurrence of any recital in Ex.DW2/A of land owned by the deceased testator in Phati Dhalpur holding a huge area of 4-12-0 bighas renders the execution of Ex.DW2/A to be a suspicious document. However, the non embodiment of any recital in Ex.DW 2/A qua land aforesaid occurring in Phati Dhalpur and it holding the aforesaid area would not per se render her testamentary disposition recorded vis-a-vis defendants No.1 to 8 and the plaintiff comprised in Ex.DW2/A to falter, conspicuously, when contrarily assumingly if the deceased testator given the proactive participation in its execution by one its beneficiaries may thereupon stand concluded to be under his dominion besides whereupon, she would hence proceed to alienate the aforesaid tract of land vis-a-vis him whereas hers omitting to alienate the aforesaid tract of land under Ex.DW2/A vis-a-vis its legatees casts an aura of solemnity vis-a-vis the execution of Ex.DW2/A vis-a-vis its beneficiaries also the effect, if any, of evident pro-active participation of one of its beneficiaries in its preparation gets wholly effaced. 16. Be that as it may, with deceased testator after the execution of Ex.DW2/A surviving beyond 2-3 years thereafter whereat also she evidently stood un-disempowered of her mental cognitive faculties, whereupon, she may well have taken to rescind Ex.DW2/A by hers subsequent thereto making a testamentary disposition conspicuously when she subsequent to the execution of Ex.PW3/A qua the plaintiff proceeded to execute Ex.DW2/A vis-a-vis defendants No.1 to 8 and the plaintiff, whereas hers omitting to execute a testamentary disposition for thereupon begetting an annulment of Ex.DW2/A begets a sequel qua Ex.DW2/A standing concluded to be the volitional equitable testamentary disposition of the deceased testator also its execution being free from any taint of duress or undue influence standing exerted upon her by any of its beneficiaries. 17. The above discussion unfolds the fact that the conclusions as arrived by the learned trial Court stand based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned trial Court has not excluded germane and apposite material from consideration. 18. In view of above discussion, there is no merit in the present appeal and it is dismissed. In sequel, the judgment and decree rendered by the learned trial Court below is affirmed and maintained. All pending applications also stand disposed of. While rendering the findings, the learned trial Court has not excluded germane and apposite material from consideration. 18. In view of above discussion, there is no merit in the present appeal and it is dismissed. In sequel, the judgment and decree rendered by the learned trial Court below is affirmed and maintained. All pending applications also stand disposed of. No order as to costs. Records be sent back forthwith.