Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 292 (HP)

Ramesh Chand v. Kishori Lal

2017-04-01

CHANDER BHUSAN BAROWALIA

body2017
JUDGMENT : Chander Bhusan Barowalia, J. The present Regular Second Appeal is maintained by the appellants against the judgment and decree passed by learned District Judge, Hamirpur, H.P, in Civil Appeal No.130 of 1995, dated 11.11.2002, whereby the learned District Judge, Hamirpur, H.P, had set aside the judgment and decree passed by learned Civil Judge (Junior Division)-I, Hamirpur, District Hamirpur, H.P, in Civil Suit No.149 of 1993, dated 13.9.1995. 2. Briefly stating facts giving rise to the present appeal are that appellants/defendants (hereinafter referred to as ‘defendants’) filed a suit for declaration against the respondents/plaintiff (hereinafter referred to as ‘the plaintiff’) alleging that Will of the suit land to the extent of 1/21 share entered in Khata No.16, Khatauni No.17, Khasra No.56, measuring 4 marlas, 23/798 shares entered in Khata No.15, Khatauni No.16, Khasra Nos.97, 99 and 101 measuring 2 marlas and 1/35 shares in Khara No.17, Khatauni No.18, Khasra No.166, measuring 7 marlas, situated in Tika Bela, Tappa Jalari, Tehsil Nadaun, District Hamirpur, H.P (hereinafter referred to as ‘suit land’) as shown in the ownership and possession of defendants, as per entries in the revenue record. The land to the extent of 1/21 share entered in Khata No.109, Khatauni No.121, Khasra Nos.55, 58, 60 and 62 measuring 1 Kanal 18 marlas, out of total land measuring 40 kanals 4 marlas, was entered in the name of Smt. Mungri Devi. Defendants being very clever person have allegedly managed the execution of Will dated 10.6.1992, Smt. Mungri Devi being illiterate, was not in a position to understand the consequence of the execution of Will. Defendants have thus managed alienation of the entire movable and immovable property of Smt. Mungri Devi, through the Will in question. They are threatening to enter the mutation of the suit land, on the basis of fake and fictitious Will and in case succeeded to do so, plaintiff allegedly likely to suffer an irreparable loss. Hence, the suit for declaration to the effect that Will dated 10.6.1992 of the suit land is forged and fictitious document and as such not binding on the plaintiff. 3. The suit has been resisted and contested by the defendants by filing written statement and has taken the preliminary objections qua suit is bad for non-joinder of necessary parties, not maintainable in the present form and plaintiff estopped by his act and conduct from filing the suit. 3. The suit has been resisted and contested by the defendants by filing written statement and has taken the preliminary objections qua suit is bad for non-joinder of necessary parties, not maintainable in the present form and plaintiff estopped by his act and conduct from filing the suit. On merits, it has been contended that defendants are owner-in-possession of suit land. The Will is not a fake and fictitious document. The same rather is a document, which has been legally and validly executed by their mother, Smt. Mungri Devi in their favour, as per her last will in sound disposing mind. Smt. Mungri Devi was competent to execute the Will and has rightly executed the same in their favour in presence of respectable persons and even got the same registered before the Sub Registrar, Nadaun. 4. The learned trial Court framed following issues : “1. Whether late Smt. Mungri Devi executed a valid Will dated 10.6.1992 in favour of the defendants, if so, its effect OPP. 2. Whether the suit is bad for non-joinder of necessary parties ? OPD. 3. Whether the suit is not maintainable in the present form ? OPD. 4. Whether the plaintiff is estopped by his act and conduct from filing the suit ? OPD. 5. Relief.” 5. The learned trial Court after deciding Issue No.1 against the defendants, Issue No.2 not pressed, Issue No.3 redundant, Issue No.4 in favour of the defendants, dismissed the suit. However, the learned lower Appellate Court set aside the findings of the learned Court below and decreed the suit of the plaintiff, thereafter the present appeal was admitted on the following substantial questions of law : “1. When due execution and attestation of the Will Ex.DA was duly proved in accordance with the provisions of Section 63 of the Indian Succession Act and Section 68 of the Evidence Act, in the absence of any proper pleadings and proof has not the lower Appellate Court exceeded its jurisdiction and acted with material illegality and irregularity to hold Ex.DA not to be a genuine and valid document by observing that the testator has disinherited one of her son and also that the propounder of the Will i.e other four sons have taken active part in execution thereof? Are not the findings of the lower Appellate Court in this regard erroneous, illegal and perverse? 2. Are not the findings of the lower Appellate Court in this regard erroneous, illegal and perverse? 2. Whether the lower Appellate Court has misread the statement of the scribe of the Will DW-2 and marginal witness DW-3 and also misapplied the correct principles laid down in various pronouncements of this Hon’ble Court and Apex Court to hold that the Will is not a valid document especially when there is presumption of truth attached to the endorsement made by the Sub Registrar at the time of registration of the Will showing that the testator possessed proper mental faculties and the Will was executed of her own violation ? Are not the findings rendered to the contrary by the lower Appellate Court ignoring such presumption illegal, erroneous and perverse ? 3. Whether the lower Appellate Court has failed to take into consideration the plea of estoppel raised by the defendant-appellants findings on which were returned by the trial Court in favour of the appellants while dismissing the suit of the plaintiff-respondent?” 6. Learned counsel appearing on behalf of the plaintiff has argued that the Will was duly proved, but the learned Appellate Court below without taking into consideration this aspect has given its findings against the well settled law. He has relied upon the judgment in Pentakota Satyanarayana and others vs. Pentakota Seetharatnam and others, (2005) 8 Supreme Court Cases 67 and argued that the presence of beneficiaries is not sufficient to suspect the execution of Will. He has further argued that Will was duly registered before Sub Registrar. He has also relied upon the judgment, as cited by this Hon’ble Court in Om Parkash and others vs. Bhup Singh and others, Latest HLJ 2009 (HP) 106, on this aspect. 7. On the other hand, learned counsel appearing on behalf of the defendant has vehemently argued that the findings, as arrived by the learned lower Appellate Court below are just and reasoned, after appreciating the facts, which have come on record, to its true perspective. He has further argued that there is no substantial question of law involved in the present appeal and the same deserves dismissal. 8. In rebuttal learned counsel appearing on behalf of the plaintiff has argued that the learned lower Appellate Court below has appreciated the facts to its true perspective and the law has been applied correctly. 9. He has further argued that there is no substantial question of law involved in the present appeal and the same deserves dismissal. 8. In rebuttal learned counsel appearing on behalf of the plaintiff has argued that the learned lower Appellate Court below has appreciated the facts to its true perspective and the law has been applied correctly. 9. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the record in detail. 10. Now, whether the Will Ex.DA, is forged and fictitious document, the same is required to be considered, the way it was stated to be executed in the presence of beneficiaries, at the spot as well as duly registration of the Will. First of all, while appreciating the statement of witnesses, PW-1 Kishori Lal, while appearing in the witness box has stated that all the five brothers used to live together with the testatrix and render services to her. According to him, deceased Mungri Devi, was not keeping good health about three years, prior to her death and even she was hard of hearing. She used to proclaim that she will not give her land. When the defendants got reduced the Will into writing, he was out of station and came to know from Baldev Singh about it later on after five-six days. PW-2 Baldev Singh even told him that the testatrix though wanted to execute the Will in favour of all her sons, but it is the defendant who had taken her out, while the Will was being reduced into writing and managed the execution thereof in their favour to his exclusion. It is however, admitted that he used to cultivate his land separately, whereas the defendants had been cultivating their land jointly. As per his version, when the testatrix had lost her senses, she was taken to Chandigarh by all of them for treatment. He, however, expressed inability to produce any documentary evidence in this behalf. He, however, did not lodge any complaint with Tehsildar regarding the execution of Will by the defendants falsely. According to him, the testatrix had expired in July 1993. PW-2 Baldev Singh, has deposed that the testatrix was known to him and used to visit her off and on. She used to tell during such visits that she will execute the Will of the land in the names of all her sons. According to him, the testatrix had expired in July 1993. PW-2 Baldev Singh, has deposed that the testatrix was known to him and used to visit her off and on. She used to tell during such visits that she will execute the Will of the land in the names of all her sons. On 10.6.1992, he had gone to Tehsil for getting the bonafide certificate issued in his favour and found the testatrix and her sons except the plaintiff present there. In his presence, the testatrix told the petition writer that she wanted to execute the Will of her land in favour of all her sons, however, defendants had taken her to one side and even there also, she told them to get the Will executed in the names of all, however, irrespective of it, they managed the execution thereof in their names alone in exclusion of the plaintiff. According to him, the testatrix was hard of hearing and being looked after by her all sons. In his cross-examination, he has stated that his father had also executed the Will of his land in favour of his mother and defendant Jagdish Chand. He has denied that the plaintiff and defendants are residing separately for the last 15 years, however, they have got themselves separated after the death of their mother. He has stated that the entries with respect to the issuance of bonafide certificate are there in his register maintained in Tehsil. PW-3 Gurdas, has also stated that the testatrix was known to him and her all sons used to render services to her during her life time. Even, on her death also, the last rites were performed by all five sons. According to him, her sons got themselves separated after her death. In his cross-examination, he has denied that the plaintiff was living separately from his brothers and the mother testatrix for the last 17-18 years and that he used to quarrel with them. He has also denied that the testatrix was not known to him, however expressed his ignorance to tell the name of father of Biru Ram, her husband as well as that of wife of Kishori Lal, the plaintiff. He has also expressed his ignorance so as to the names of the wives of the defendant also. He has also denied that the testatrix was not known to him, however expressed his ignorance to tell the name of father of Biru Ram, her husband as well as that of wife of Kishori Lal, the plaintiff. He has also expressed his ignorance so as to the names of the wives of the defendant also. The scribe has stated that he noted the name of five brothers, but the Will was executed in favour of four brothers. At the same point of time, the presence of all five brothers alongwith their mother was residing together is to be considered while disposing of the present lis. It is crystal clear that all the defendants were present there, while the Will Ex.DA, was being reduced into writing, as has come in the cross-examination of the scribe DW-2 as well as the attesting witness Dila Ram (DW-3) and even in that of DW-4. Not only this, as per the version of DW-4 Mehar Singh, allegedly one of the attesting witness to the Will Ex.DA, the paper to get the Will reduced into writing was brought by the sons (defendants) of the testatrix and the expenses were borne by defendant No.1 Ramesh Chand. As per the version of DW-2, the scribe, all the defendants in whose name the Will was executed had come with the testatrix were present there. His version to this effect finds corroboration from that of DW-3 Diley Ram, who is one of the attesting witness. This witness rather has gone one step further while deposing that he was present, when the Will was being reduced into writing and the same was reduced into writing in favour of only four sons of the testatrix and nothing was stated therein about the fifth son. As per his version, in cross-examination the testatrix wanted to get the Will executed in the name of all the five sons, as it is for this reason, she got noted their names with the petition writer. He expressed his ignorance as to how later on, it came to be executed only in the names of four sons. He has also stated about the presence of all the defendants there and the testatrix being 65 years of age, at that time was of feeble mind and even hard of hearing. He expressed his ignorance as to how later on, it came to be executed only in the names of four sons. He has also stated about the presence of all the defendants there and the testatrix being 65 years of age, at that time was of feeble mind and even hard of hearing. Such evidence as has come on record by way of the testimony of DWs 2 and DW-3 examined by the defendants themselves leads to the only conclusion that the Will cannot be termed to be legal and valid and the same is shrouded with suspicious circumstances. The motive which appears otherwise also for giving property to her son by the testatrix is stated to exclude the daughter. In such circumstances, the Will cannot be said to be executed without undue influence and free will. Thus, in view of the self contradictory evidence produced by the defendants, it is not proved beyond all reasonable doubt that deceased Mungri Devi, had executed the Will Ex.DA, in sound disposing mind and in her free volition in favour of the defendants and excluded thereby the plaintiff. True it is that an owner of the property has a legal right to execute the Will of such property in exclusion of his/her legal heirs, but there must be some reasons to do so. In the case in hand, the reason that the plaintiff was not rendering any services to his mother the testatrix is not at all proved. 11. Learned counsel appearing on behalf of the plaintiff has relied upon the judgment in Om Parkash and others vs. Bhup Singh and others, latest HLJ 2009 (HP) 106. Relevant para-9 of the judgment (supra) is reproduced hereinbelow : “There is nothing on record to suggest that the testator Daulat Ram was not of sound disposing mind. His daughter PW-4 Kaushlya Devi has stated that when he met the testator two/three days prior to the execution of the Will Ex.PW2/A her father (testator) was in a sound mental condition. The evidence of PWs 2 and 3 is also unrebutted on this point when they are unanimous in their testimony that the testator had actively participated in the execution of the Will and directed the disposition of this estate which was faithfully recorded and document read over to the testator who acknowledged it to be correct. The evidence of PWs 2 and 3 is also unrebutted on this point when they are unanimous in their testimony that the testator had actively participated in the execution of the Will and directed the disposition of this estate which was faithfully recorded and document read over to the testator who acknowledged it to be correct. In these circumstances, I hold that the learned District Judge was clearly in setting aside the well reasoned judgment of the trial Court ignoring the evidence of the scribe PW3 and the attesting witnesses PW2 and in not following the principles of law as applicable to the facts of the case. The questions raised in this appeal for determination are answered in favour of appellant herein that is to say that learned Appellate Court has not at all considered the provisions Section 63 of the Indian Succession Act and 67 and 68 of the Indian Evidence Act. The appellant has successfully established that Ex.PW2/A was the last Will and testament of the deceased and that Ex.DW10/A has been rightly rejected the learned trial Court. This appeal is accordingly allowed. The judgment and decree of learned trial Court is restored. The judgment and decree passed by learned District Judge is quashed and set aside. The question of law are answered in favour of appellants. There shall be no order as to costs.” In the present case, the presence of beneficiary coupled with the statement of the marginal witnesses, the scribe and the reason finds mention in the Will not to be a genuine document. The presence of beneficiary is not a sole ground to hold that the Will is to be a genuine document, so the judgment, as cited is not applicable in the present case. In another case titled Pentakota Satyanaryana and others vs. Pentakota Seetharatnam and others, (2005) 8 Supreme Court Cases 67. It is gainful to reproduce para-26 of the judgment (supra), which is as under : “Mr. Narasimha, learned counsel for the respondents, submitted that the natural heirs were excluded and the legally wedded wife was given a lesser share and, therefore, it has to be held to be a suspicious circumstance. We are unable to countenance the said submission. It is gainful to reproduce para-26 of the judgment (supra), which is as under : “Mr. Narasimha, learned counsel for the respondents, submitted that the natural heirs were excluded and the legally wedded wife was given a lesser share and, therefore, it has to be held to be a suspicious circumstance. We are unable to countenance the said submission. The circumstances of depriving the natural heirs should not raise any suspicion because the whole idea behind the execution of the Will is to interfere in the normal line of idea behind the execution of the Will is to interfere in the normal line of succession and so natural heirs would be debarred in every case of the Will. It may be that in some cases they are fully debarred and some cases partly.” The aforesaid judgment as cited above, is also not applicable to the present case, as it is abundantly clear that the Will is the result of undue influence of the beneficiary of testatrix. In these circumstances, this Court finds that the Will was executed at the behest of beneficiaries and without undue influence of the plaintiff and cannot be said to be a free will of the testatrix. So, the law as cited by learned counsel appearing on behalf of the appellant is not applicable in the facts and circumstances of the present case. So, substantial question of law No.1, as framed by this Hon’ble Court, is decided accordingly holding that Will Ex.DA, was full of suspicious circumstance. From the above evidence on record, it is crystal clear that the testatrix was under undue influence of the beneficiaries, so, the Will is shrouded by the suspicious circumstances. Substantial question of law No.2, is answered accordingly holding that the learned lower Appellate Court has not misread the statement of the scribe of the Will, marginal witnesses to it’s true perspective and the law has been applied correctly. The learned Appellate Court below has taken into consideration all suspicious circumstances of the case including estoppel, as the learned Court below has specifically come to the conclusion that the Will is shrouded by the suspicious circumstances. So, it cannot be said that the plaintiff is estopped for filing the present suit, as nothing has come otherwise, therefore, substantial question of law No.3 is decided accordingly. 12. So, it cannot be said that the plaintiff is estopped for filing the present suit, as nothing has come otherwise, therefore, substantial question of law No.3 is decided accordingly. 12. In view of the above discussion, the appeal of the appellant is without merit and deserves dismissal, hence the same is dismissed. However, in the peculiar facts and circumstances of this case, parties are left to bear their own costs. Pending applications, if any, shall also stands disposed of.