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2016 DIGILAW 511 (HP)

Hem Raj v. Meera Devi

2016-04-19

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. Since common questions of law and facts are involved in both these appeals, the same were taken up together for hearing and are being disposed of by a common judgment. 2. These two appeals are directed against the judgments rendered by the learned Additional District Judge, Mandi in Civil Appeal No. 87/2002 dated 28.9.2004 and Civil Appeal No. 99/2002 decided on 28.9.2004. 3. ?Key facts? necessary for the adjudication of these appeals are that the appellant in RSA No. 529 of 2004, namely, Hem Raj filed a Civil Suit against the respondents-defendants, namely, Veena, Meera Devi, Sohanu and Lali for declaration and possession and consequential relief. According to the plaintiff, he was grand son of Thakru. He was minor and attained the age of majority on 4.5.1996. The suit was instituted on 22.1.1997. According to him, deceased Thakru had 3537 shares out of 6092 shares in the land comprised in Khewat Khatauni No. 314 min/399 min, Khasra Nos. 13 and 15/2 measuring 15-4-12 bighas. Similarly, deceased Thakru had 586 shares in land comprised in khewat/khatauni No.315/400, Khasra No.18 measuring 7-8-11 bighas situated in Mauja Behna/210 Om Illaqua Balh, Tehsil Sadar, District Mandi, H.P. The suit land was mutated in the name of defendant Nos.1, 3 and 4 as per the cause title of the suit land vide mutation Nos. 753 and 253 respectively. According to the plaintiff, deceased Thakru had executed a genuine and valid will in his favour on 18.12.1991 in the presence of witnesses. However, he had no knowledge of the Will since it was kept by Sidhu Ram, Vice President of Gram Panchayat. When defendant No.1 sold land out of the suit land in favour of defendant No.2, namely, Meera Devi then plaintiff came to know about the Will in his favour in the month of November, 1996. The Will was handed over to him. It was scribed by Baghirath. On the basis of Will, plaintiff became owner in possession of the suit land and the mutation of inheritance attested in favour of defendant Nos. 1, 3 and 4 was sought to be declared null and void. It is further stated that on the basis of wrong mutation, defendant No.1 has sold her entire share in favour of defendant No.2 without delivering the possession of the same. 1, 3 and 4 was sought to be declared null and void. It is further stated that on the basis of wrong mutation, defendant No.1 has sold her entire share in favour of defendant No.2 without delivering the possession of the same. The sale deed dated 18.12.1996 bearing No.1443 was also sought to be declared null and void. 4. The suit was contested by defendants. According to the written statement filed by defendant Nos. 1 and 2, after the death of Thakru, mutation was rightly attested. Mutation No. 823 pertained to partition and not regarding inheritance. Thakru had not executed any Will in favour of the plaintiff. Defendant No.1 was in joint possession of the suit land qua her share alongwith defendant Nos. 3 and 4 and being owner, she has rightly sold her share for consideration in favour of defendant No.2 Meera Devi. Defendant No.2 was bona fide purchaser. Defendant Nos. 3 and 4 in their written statement have admitted that they were not aware about the Will. 5. Learned Sub Judge 1st Class, Court No.1, Mandi framed issues on 4.3.1999. He partly decreed the suit to the effect that the sale deed executed by defendant No.1 in favour of defendant No.2 was held to be illegal, null and void. Suit of the plaintiff was dismissed to the effect that he has failed to prove that he was joint owner in possession of the suit land by virtue of Will. Defendant No.2 Meera Devi instituted Civil Appeal No. 87 of 2002 against the judgment and decree dated 27.5.2002. Learned Additional District Judge, Mandi allowed the same on 28.9.2004. Plaintiff also filed Civil Appeal No. 99 of 2002 against the judgment and decree dated 27.5.2002 before the Additional District Judge, Mandi. He allowed the same and the findings returned by the Sub Judge 1st Class on issue Nos.1 and III were set aside. Hence, the plaintiff has instituted an appeal bearing RSA No. 529/2004 against the judgment and decree dated 28.9.2004 rendered by the Additional District Judge, Mandi in Civil Appeal No. 87 of 2002. It was admitted on the following substantial questions of law on 2.12.2004: 1. Whether the judgment and decree of the reversal assed by the first appellate court reversing the findings of the trial court on issue No.2 is dehors the evidence on record and against the law and facts? 2. It was admitted on the following substantial questions of law on 2.12.2004: 1. Whether the judgment and decree of the reversal assed by the first appellate court reversing the findings of the trial court on issue No.2 is dehors the evidence on record and against the law and facts? 2. Whether the first appellate court erred in holding that Meera Devi, respondent No.1 was a bonafide purchaser of the land sold to her by Smt. Veena Devi and the finding is against the pleadings and settled position of law? 6. Similarly, Meera Devi also filed an appeal bearing RSA No. 597/2005 against the judgment and decree dated 28.9.2004 rendered by the Additional District Judge, Mandi in Civil Appeal No. 99 of 2002. It was admitted on the following substantial questions of law on 26.3.2007: 1. Whether the Ld. 1st Appellate Court misconstrued and misinterpreted the evidence to the effect that the Will in question as well as other documents have not been proved in accordance with law especially when the second attesting witness has not been examined? 2. Whether the Ld. Court below has ignored the effect in law of the late production of the Will and the manner in which the same has been proved? 3. Whether the Ld. Court below has erred in not appreciating that the appellant was a bona fide purchaser as envisaged by section 41 of the Transfer of Property Act? 4. Whether the Ld. Court below has erred in disregarding the contradiction in the statements of the plaintiff's witnesses? 7. Mr. Neeraj Gupta, learned counsel appearing for appellant in RSA No. 529 of 2004, on the basis of the substantial questions of law framed, has vehemently argued that reversal of findings of the trial court on issue No.2 by the Additional District Judge in Civil Appeal No. 87 of 2002 was dehors the evidence. He has also contended that the first appellate court erred in holding that Meera Devi was a bona fide purchaser of the land sold to her by Veena Devi. 8. Mr. Vinay Kuthiala, learned Senior Advocate has vehemently argued that the Will dated 18.12.1991 was shrouded in mystery. It has not been proved in accordance with law. 9. I have heard the learned counsel for the parties and have gone through the records carefully. 10. 8. Mr. Vinay Kuthiala, learned Senior Advocate has vehemently argued that the Will dated 18.12.1991 was shrouded in mystery. It has not been proved in accordance with law. 9. I have heard the learned counsel for the parties and have gone through the records carefully. 10. The Court is of the considered view that the Additional District Judge ought to have clubbed Civil Appeal No. 87 of 2002 and 99 of 2002 since same substantial questions of law were involved. 11. Since all the substantial questions of law in both the appeals are interlinked and interconnected, the same are taken up together for determination to avoid repetition of discussion of evidence. 12. The Will Ex.PW-2/A is dated 18.12.1991. Case of the plaintiff is that he came to know about the execution of Will only when the land was sold by Veena in favour of Meera Devi in the month of November, 1996. His grand father had handed over the Will to PW-2 Sidhu Ram. He handed over the Will to him at his house. It is in these circumstances, prayer was made that the Will was valid and genuine. The inheritance made in favour of defendant Nos. 1, 3 and 4 was wrong and null and void. The land could not be sold by Veena to Meera Devi. The sale deed is dated 18.12.1996 bearing No. 1443. 13. PW-1 Hem Raj has testified that he was grand son of Thakru. At the time of death of his grand father, he was minor. Thakru had only one son Sohnu and daughter Veena. His grand father died in the year 1992. His property was inherited by his son Sohnu and daughter Veena. The mutation was not challenged by them. He did not know about the mutation. He came to know about the Will in the month of December, 1996 when Veena sold the suit land in favour of Meera Devi that Thakru had executed Will in his favour. The possession was never handed over to defendant. He has proved Will mark X, mutation Ex.PA & PB, Jamabandis Ex.PC & PD, sale deed mark Y, death certificate mark Z and Pariwar register mark Z-1. In his cross-examination, he has categorically admitted that the Pradhan had brought the Will to his house. His mother, father and grand mother were present. He came to his house in the month of November, 1996 in the evening. In his cross-examination, he has categorically admitted that the Pradhan had brought the Will to his house. His mother, father and grand mother were present. He came to his house in the month of November, 1996 in the evening. 14. PW-2 Sidhu Ram has testified that Thakru came to him in the month of December, 1991. He told him that he wanted to execute a Will in the name of his grand son. They reached Mandi. The Will was scribed by Bhagirath. The contents of the Will were read over to Thakru. Thereafter, he alongwith Nanki signed the same. He proved Will Ex.PW-2/A. It was earlier marked as mark X. Thakru died in the year 1992. He forgot to handover the Will. He went to Patwarkhana in the year 1996 and then he came to know that the land has been sold by Thakru's daughter to the wife of Kishan. Thereafter, he told the plaintiff about the Will. He handed over the Will to him. Thakru at the time of execution of Will was in his senses. He was not sick. In his cross-examination, he has deposed that he sent the information about the execution of Will through Mast Ram, Ramesh and Sukh Ram. Thereafter, plaintiff and his son came to his house and he handed over the Will to him in the morning. 15. PW-3 Bhagirath has deposed that he has scribed the Will. He made the entry in the register on 18.12.1991 bearing No. 1950. Thakru had put his signatures on Ex.PW-2/A. He identified his signatures on the Will. He had scribed the Will at the instance of Thakru. In his cross-examination, he has categorically admitted that the Will neither bears the name of identifier nor his signatures. 16. DW-1 Veena has testified that she inherited the property of Thakru. The land was in joint ownership. She has sold her share to Meera Devi for consideration of Rs. 45,000/-. Thakru had never told her about any Will. He had not executed any Will. She used to look after Thakru. 17. DW-2 Sohan Lal has deposed that Sidhu Ram through Mast Ram had told him about the Will. Thereafter, he had visited the house of Sidhu Ram to get the Will. 18. DW-3 Meera Devi has deposed that she has purchased the land on 18.12.1996 for a sum of Rs. 45,000/-. She used to look after Thakru. 17. DW-2 Sohan Lal has deposed that Sidhu Ram through Mast Ram had told him about the Will. Thereafter, he had visited the house of Sidhu Ram to get the Will. 18. DW-3 Meera Devi has deposed that she has purchased the land on 18.12.1996 for a sum of Rs. 45,000/-. The land was in the ownership of Veena and now she was owner of the same. 19. The alleged Will was executed on 18.12.1991. Thakru died in the year 1992. There was no occasion for Thakru to leave the Will with PW-2 Sidhu Ram. PW-1 Hem Raj has testified that PW-2 Sidhu Ram had come to his house and delivered the Will to him. He came to know about the Will only when Veena executed sale deed in favour of defendant No.2. However, PW-2 Sidhu Ram in his cross-examination has categorically admitted that he apprised the plaintiff about the Will through Mast Ram, Ramesh and Sukh Ram and thereafter plaintiff came to his house. According to PW-2 Sidhu Ram, names of the witnesses and their addresses were typed. However, as per the Will Ex.PW-2/A, the address of one of the witnesses Nanki Devi is hand written and there is a seal of Up-Pradhan, Gram Pradhan, Bhadyal. The version of PW-2 Sidhu Ram that he forgot to handover the Will to the plaintiff cannot be believed. Thus, the first appellate court has come to a wrong conclusion in Civil Appeal No. 99 of 2002 that the Will was legally and validly executed. The plaintiff has not proved the due execution of the Will Ex.PW-2/A. 20. Defendant Veena had inherited the property from her father alongwith her brother. The mutation was duly attested in their favour. The same is on record. Therefore, the land was sold by defendant No.1 to defendant No.2 Meera Devi for consideration of Rs. 45,000/-. The sale deed is dated 18.12.1996. The mutation was attested in favour of Veena before this date. Thus, Meera Devi is bona fide purchaser of the suit land and the findings given by the learned Additional District Judge to this effect vide judgment dated 28.9.2004 in Civil Appeal No. 87 of 2002 are upheld. Meera Devi had no knowledge of the alleged Will dated 18.12.1991 at the time of execution of sale deed on 18.12.1996. The Will has not been produced for five years. Meera Devi had no knowledge of the alleged Will dated 18.12.1991 at the time of execution of sale deed on 18.12.1996. The Will has not been produced for five years. The findings given by the learned Additional District Judge, Mandi in Civil Appeal No. 99 of 2002 are set aside. 21. Their Lordships of the Hon'ble Supreme Court in Anil Kak versus Kumari Sharda Raje and others, (2008) 7 SCC 695 have held that mere proving of signatures of executors and the attesting witnesses is not sufficient. Their Lordships have further held that unlike an ordinary document it must fulfill the conditions imposed by section 63 (c) of Succession Act and section 68 of Evidence Act. 22. Their Lordships of the Hon'ble Supreme Court in Mahesh Kumar (dead) by LRs. vs Vinod Kumar and others, (2012) 4 SCC 387 have held that onus is on propounder to dispel suspicious circumstances. 23. Their Lordships of the Hon'ble Supreme Court in Dhannulal and others vs. Ganeshram and another, (2015) 12 SCC 301 have held that execution of a document does not mean mechanical act of signing document or getting it signed, but an intelligent appreciation of contents of document and signing it in token of acceptance of those contents. Proof of a will stands in a higher degree in comparison to other documents. Their Lordships have held as under: ?[18] It is evident from the findings recorded by the High Court in the paragraph referred to hereinabove that the Will suffers from serious suspicious circumstances. The execution of a document does not mean mechanical act of signing the document or getting it signed, but an intelligent appreciation of the contents of the document and signing it in token of acceptance of those contents.? 24. The substantial questions of law are answered accordingly. 25. Accordingly, in view of the analysis and discussion made hereinabove, the RSA No. 597 of 2005 is allowed and RSA No. 529 of 2004 is dismissed. Meera Devi is held to be bona fide purchaser of the suit land and the Will dated 18.12.1991 is declared not to be valid and genuine. Pending application (s), if any, also stands disposed of. No costs.