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2017 DIGILAW 149 (HP)

Chet Ram v. Dola Ram

2017-03-08

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. The instant appeal stands directed by the defendants whereby they assailed the judgment and decree recorded by the learned First Appellate Court whereby it reversed the verdict recorded by the learned trial Court whereby the latter had dismissed the suit of the plaintiff. 2. The facts necessary for rendering a decision on the instant appeal are that Sarnu was the owner in possession of the land comprised in Khasra No. 1809, 1812, 1815, 1817, 1627, two houses and a water mill. The said Sarnu died intestate and his estate was succeeded by the plaintiff and defendants 1 to 4 by way of succession, but the defendants forged a bogus will allegedly executed by Sarnu excluding the plaintiff. The defendants were asked to admit the claim of the plaintiff in the suit property but of no avail, hence the suit. 3. The defendants have resisted and contested the suit. The defendants No. 1,2, 3 and 5 in their joint written statement have taken preliminary objections vis-a-vis cause of action. In reply on merits they have alleged that the Will propounded by the defendants is genuine, validly executed by Sarnu and the plaintiff being not the son of Sarnu has no locus standi to file the suit. It is replied by them that the plaintiff is Pichhlag son, as his mother Naru was married to one Naru and son of Rattu. It is alleged that after the death of Naru, the mother of the plaintiff married Sarnu. It is also alleged that the plaintiff is also known as Dhebu. Defendant No.4 has admitted the suit of the plaintiff and has set up the claim on basis of intestate succession of the suit property. 4. On the pleadings of the parties, the trial Court struck following issues inter-se the parties at contest:- 1. Whether the plaintiff is son of the deceased Sh. Sarnu? OPP. 2. Whether the deceased Sarnu executed a Will dated 7.12.1996 in favour of the defendants, as alleged? OPD. 3. Whether the plaintiff has no cause of action? OPD. 4. Whether the suit is not maintainable? OPD. 5. Whether the plaintiff has not come with clean hands? OPD. 6. Relief. 5. Sarnu? OPP. 2. Whether the deceased Sarnu executed a Will dated 7.12.1996 in favour of the defendants, as alleged? OPD. 3. Whether the plaintiff has no cause of action? OPD. 4. Whether the suit is not maintainable? OPD. 5. Whether the plaintiff has not come with clean hands? OPD. 6. Relief. 5. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiff whereas the learned First Appellate Court allowed the appeal preferred therefrom before it by the plaintiff. 6. Now the defendants/appellants herein has instituted before this Court the instant Regular Second Appeal wherein they assail the findings recorded by the learned first Appellate Court in its impugned judgment and decree. When the appeal came up for admission on 16.04.2004, this Court admitted the appeal on the hereinafter extracted substantial questions of law:- "1. Whether the lower appellate Court wrongly proceeded to reverse the findings of the trial Court on issue No. 1 by holding the plaintiff respondent to be son of Shri Sarnu when there was no evidence led by the plaintiff-respondent in consonance with the provisions of Section 60 of the Evidence Act and there was overwhelming evidence available on the record led by the defendants-appellants in consonance with such provisions of Evidence Act? Are not the lower Appellate Court on this count illegal erroneous and perverse which ignore the material evidence and raise the presumption under law with respect to such document/facts which would be held to be inadmissible to prove the relationship between the parties. 2. Whether the lower Appellate Court has acted with material illegality and irregularity in ignoring the well established principles of law and various pronouncements of this Hon'ble Court and the Hon'ble Supreme Court of India in reversing the findings of the Trial Court on issue No.2 by holding the Will be shrouded by suspicious circumstances? Has not the lower Appellate Court acted in a highly perverse manner in taking into consideration such circumstances which were of trivial nature to hold that the Will was shrouded by suspicious circumstances? Substantial questions of law. 7. Has not the lower Appellate Court acted in a highly perverse manner in taking into consideration such circumstances which were of trivial nature to hold that the Will was shrouded by suspicious circumstances? Substantial questions of law. 7. Through a testamentary disposition embodied in Ext.DW-7/A, the deceased testator, one Sarnu bequeathed his estate upon the legatees disclosed therein wherein with the plaintiff standing not constituted as a legatee constrained him to assail the testamentary disposition embodied in Ext.DW-7/A. Since the disinheritance of the plaintiff by the deceased testator stood espoused by the defendants to arise from the factum of his standing not born from the loins of one Naru on hers cohabitating with Sarnu rather his standing begotten from the loins of the previous husband of Naru also known as Naru, thereupon the disinheritance of the plaintiff by the deceased testator under his testamentary disposition comprised in Ext.DW-7/A, stood concomitantly espoused to render it tenable. On the aforesaid contentious factum an apposite issue stood struck by the learned trial Court whereupon, it, on consideration of the apposite evidence adduced by the plaintiff also on consideration of the apposite evidence in rebuttal thereto adduced by the defendants, concluded qua the plaintiff standing begotten from the loins of Naru on his cohabiting with his mother also known as Naru, latter whereof on demise of Naru evidently contracted a marriage with the father of the defendants, during subsistence whereof the defendants stood begotten from the loins of Sarnu and from the womb of Naru. The learned trial Court hence concluded qua the plaintiff holding no locus standi to challenge Ext.DW-7/A. The learned First Appellate Court, in an appeal standing carried therebefore by the aggrieved plaintiff, proceeded to reverse the findings pronounced by the learned trial Court qua the contentious issue qua the plaintiff standing begotten from the loins of Sarnu and from the womb of Naru, his natural mother. Moreover, the learned First Appellate Court for reasons expostulated therein overruled the findings recorded by the learned trial Court qua dehors its returning finding vis-a-vis the defendants upon issue No.1, the testamentary disposition of deceased testator Sarnu held in Ext.DW-7/A standing in consonance with the statutory parameters engrafted in Section 63 of the Indian Succession Act hence proven to be validly and duly executed. The learned first Appellate Court while pronouncing qua the plaintiff standing born from the loins of Sarnu and from the womb of Naru, on the latter on demise of her previous husband evidently contracting a marriage with Sarnu depended upon Ext.DW-7/A where within reflections are held qua the plaintiff standing fathered by Sarnu, the deceased testator. Apparently birth certificates embodied in Ext.P-6,7,8,9,10 and Ext.P.11 issued at the time contemporaneous to the subsistence of a lawful wedlock inter se Naru with Sarnu, the deceased testator, though reflect qua a male child fathered by the deceased testator standing born on 13.04.1948. Nonetheless with non-reflection of the name of the plaintiff in the apposite column thereof, cannot, as untenably inferred by the learned first Appellate Court, mobilize any inference qua it pertaining to the name and identity of the plaintiff. Consequently, any reliance thereupon by the learned First Appellate Court, to conclude qua the plaintiff standing fathered by the deceased testator Sarnu was wholly unwarranted. The learned First Appellate Court had also relied upon Ext.P-7 to P-11, birth certificates of other issues of Naru and Sarnu besides also on mutation Ext.P- 19, entries in Jamabdi Ext.P-12, voters list Ext.P-20 and copy of the family register Ext.P-22 and Ext.PW-3 holding reflections therein qua the plaintiff standing fathered by Sarnu, the deceased testator. Even though the aforesaid documentary evidence enjoys a presumption of truth arising from it comprising public records prepared during the discharge of official duties by a public officer nonetheless the presumption aforesaid enjoyed by it, is rebutable also is dislodgable. The learned First Appellate Court had imputed sacrosanct solemnity to the apposite reflections held there-within, imputation of sanctity thereon by it visibly arose from its remaining grossly unmindful qua the reflections occurring therein wanting in legal efficacy especially given the factum of presumption of truth carried by the relevant entries held therein, standing repudiated, by sale deed Ext.DW-5/A wherein the plaintiff stands reflected to be Dhebu besides stands reflected to stand fathered by Naru. A witness to sale deed Ext.DW-5/A had with utmost aplomb disclosed in his testimony qua the plaintiff also holding as alias of Dhebu, factum whereof also stands enunciated in Ext.DW-5/A, yet his testimony stood discarded by the learned First Appellate Court rather it pronounced qua it not leveraging any inference qua the plaintiff holding any alias of Debu nor it filliping any conclusion qua as disclosed in Ext.DW-5/A, his standing fathered by Naru, whereas it constituted the best documentary evidence, to rebut also to evidently countervail the presumption of truth carried by the apposite entries held in the relevant public record, amplifyingly the plaintiff for rebutting the testimony of DW Alam Chand wherein the portrayals stand embodied qua the plaintiff also holding an alias of Debu, factum whereof also stands depicted in Ext.DW-5/A, hence standing enjoined to adduce evidence comprised in his producing Dhebu for delinking Dhebu enunciated in Ext.DW-5/A vis.a.vis his identity besides parentage also stood enjoined to in case Dhebu had died at the time when the relevant issue stood put to trial, to produce a certificate holding unveilings qua Dhebu no longer surviving. However, the aforesaid evidence for rebutting the evidence of DW Alam Chand remained unadduced by the plaintiff. Therefore, the testimony of DW-8 in linking the paternity of the plaintiff marked as Dhebu in Ext.DW-5/A vis-a-vis Naru, remained undislodged. As a corollary, with the relevant disclosures occurring therein qua the facet aforesaid standing undisplaced, rendered the reflections carried therein to enjoy an aura of enhanced critical sanctity also when it constituted the best documentary evidence to marshal a firm conclusion qua the plaintiff standing fathered by one Naru, the apposite reflections held in Ext.DW-5/A also concomitantly dispelled the presumption of truth held by the apposite reflections carried in the afore referred exhibits, where-within reflections contrary thereto find occurrence, reflections whereof hence stood fastened grossly untenable reliance by the learned Appellate Court for concluding qua the plaintiff standing fathered by Sarnu hence his enjoying the capacity to challenge the testamentary disposition of the deceased testator embodied in Ext.DW-7/A. 8. Dehors the lack of locus in the plaintiff to assail the contentious testamentary disposition of Sarnu embodied in Ext.DW-7/A, the learned trial Court, on an incisive discerning of the testimony of DW-7 besides of a marginal witnesses thereto concluded therefrom qua hence Ext.DW-7/A, standing, in consonance with the enshrined parameters encapsulated in Section 63 of the Indian Succession Act, hence proven to be validly and duly executed. However, the learned first Appellate Court depended upon the factum of DW-7, the scribe of the Will, articulating in his testification, qua the deceased testator at the time of his scribing Ext.DW-7/A disclosing to him qua the plaintiff also standing fathered by him also it depended on his testifying qua at the time of his scribing Ext.DW-7/A at the instance of the deceased testator Sarnu, the legatees thereunder dissuading him to bequeath his estate vis-a-vis. the plaintiff, for its concluding therefrom qua the aforesaid testifications rendered by DW-7 comprising suspicious circumstances surrounding the execution of the contentious Will, suspicious circumstances whereof remaining inexplicated by the plaintiff hence it standing constrained to invalidate Ext.DW-7/A. However, the bed rock of the aforesaid reason anvilled upon the factum aforesaid, as stands assigned by the learned First Appellate Court for invalidating Ext.DW-7/A, is per se not convincing arising from the factum aforesaid qua there occurring invincible evidence qua the plaintiff standing not fathered by the deceased testator thereupon even if no explanation qua the aforesaid purported suspicious circumstance purportedly surrounding the execution of Ext.DW-7/A stood unpurveyed by defendant No.1 thereupon no conclusion is garnerable qua Ext.DW-7/A losing its sanctity. 9. Be that as it may, dehors the above, clinching evidence in consonance with the provisions of Section 63 of the Indian Succession Act encapsulated in the testimony of DW-7 stands enunciated in the testification of a marginal witness to Ext.DW-7/A, marginal witness whereto deposed as DW-8. DW-8 in his testimony, has unequivocally deposed qua after deceased testator Sarnu thumb marking Ext.DW-7/A in his presence his thereafter thereat in the presence of the deceased testator putting his signatures thereon. Even though, the arrival of the marginal witnesses at the relevant location of scribing of Ext.DW- 7/A, occurred on its scribing standing completed nonetheless at the apposite stage of the deceased testator embossing his thumb impressions thereon, their exists convincing evidence qua DW-8 recording his presence thereat. Even though, the arrival of the marginal witnesses at the relevant location of scribing of Ext.DW- 7/A, occurred on its scribing standing completed nonetheless at the apposite stage of the deceased testator embossing his thumb impressions thereon, their exists convincing evidence qua DW-8 recording his presence thereat. Also with his testification unequivocally disclosing qua the deceased testator embossing his thumb impressions thereon in his presence whereupon hence with the requisite enshrined statutory parameter qua a marginal witness standing enjoined to testify qua the deceased testator embossing on the relevant testamentary disposition his thumb impressions in his presence hence standing fully satiated. Also DW-8 testified qua his thereafter in the presence of the deceased testator signaturing it whereupon the further statutory ingredient qua a marginal witness to a testamentary disposition standing enjoined to convincingly bespeak qua the factum of his signaturing it, after completion of its execution in his presence by the deceased testator also achieving omnibus accomplishment. Consequently, with the apt evidence adduced by a marginal witness to Ext.DW-7/A satiating all the statutory parameters thereupon an apt inference stands drawn qua his holding the requisite animus attestandi. Furthermore the factum of the deceased testator holding the requisite compos mentis ab testamentaria also his volitionally executing the relevant testamentary disposition embodied in Ext.DW-7/A stands accentuately proven, proof whereof stems from the factum of after proven completion of its pre registration execution in consonance with the enshrined parameters engrafted in Section 63 of the Indian Succession Act, it, thereafter standing carried to the office of Sub Registrar concerned whereat also it stood thumb marked by the deceased testator also thereat it stood signatured by the marginal witnesses thereto. A formidable inference of its standing volitionally executed by the deceased testator also spurs from the factum of it holding thereon an endorsement bearing the seal and signatures of the Sub Registrar concerned, endorsement whereof marks the factum of the deceased testator embossing his thumb impressions thereon in the presence of the Sub Registrar concerned besides the occurrence of the apposite endorsement ensuing, on Ext.DW-7/A standing readover and explained to him by the Sub Registrar concerned, endorsement whereof enjoys a critical degree of sanctity, sanctity whereof when remains uneroded by adduction of potent evidence, constrains a conclusion qua the testamentary disposition of the deceased testator standing proven to be validly and duly executed dehors suspicious circumstances if any of a trivial besides a nebulous worth purportedly gripping it. 10. Consequently, the appeal preferred by the defendants/appellants herein is allowed. The judgment and decree rendered by the learned first Appellate Court is set-aside and the judgment and decree rendered by the learned trial Court is maintained and affirmed. Consequently, the suit of the plaintiff is dismissed. Substantial questions of law stand answered in favour of defendants/appellants herein and against the plaintiff/respondent herein. Decree sheet be prepared accordingly. The parties are left to bear their own costs. All pending applications also stand disposed of accordingly. Records be sent back forthwith. No costs.