Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 382 (HP)

Gurbax Singh v. Kaushalya Devi

2017-04-19

CHANDER BHUSAN BAROWALIA

body2017
Chander Bhusan Barowalia, J. The present Regular Second Appeal under Section 100 of the Code of Civil Procedure is maintained by the appellant against the judgment and decree, dated 17.4.2006, passed by the learned District Judge, Bilaspur, District Bilaspur, H.P, in Civil Appeal No.16 of 2001, whereby the learned Appellate Court below has affirmed the judgment and decree passed by learned Sub Judge 1st Class, Bilaspur, District Bilaspur, in Civil Suit No.169/1 of 1997, dated 31.10.2000. 2. Briefly stating facts giving rise to the present appeal are that respondents/plaintiffs (hereinafter referred to as ‘plaintiffs’) filed a suit for declaration against the appellant/defendant (hereinafter referred to as ‘defendant’) alleging that plaintiffs and proforma defendants are owner-in-possession of the land comprised in Khasra Nos.328, 342, 364, 409 and 500, Khewat No.160, Khatauni No.183, measuring 14-19 bighas (hereinafter referred to as ‘the suit land’) situated in Village Behal, Pargana Fatehpur, Sub Tehsil Shri Naina Devi Ji, District Bilaspur, H.P, to the extent of one share each being legal heirs of deceased Ganga Ram. Defendant No.1 has no right, title or interest over the suit land. Plaintiffs and proforma defendants are daughters of Ganga Ram, all are married and residing at the house of their in-laws. Ganga Ram expired on 4.3.1994 and his daughters being Class-I heirs, have succeeded to his entire estate, vide mutation No.1771, dated 5.5.1994. Defendant No.1 being son-in-law of Ganga Ram (deceased), proclaiming that a Will was executed in his favour by his father-in-law and on the basis of said Will, he is interfering in the ownership and possession of the plaintiffs and proforma defendants. Smt. Geeta Devi wife of Ganga Ram, had already expired on 10.5.1991, plaintiffs and proforma defendants No.3 & 4 being daughters, are the legal heirs of Ganga Ram. It is averred that an appeal was preferred against mutation No.1771, before the learned Collector, alleging that a Will has been executed by Ganga Ram in favour of defendant No.1 and Prittam Singh husband of proforma defendant No.1, who had already expired on 30.10.1989, but the learned Collector ordered that Prittam Singh, had inherited one half share of the property of Ganga Ram and his share is to be inherited by his widow, which is wrong and illegal. Ganga Ram had only four daughters and they were taking care and serving Ganga Ram, during his life time. Ganga Ram had only four daughters and they were taking care and serving Ganga Ram, during his life time. There was no occasion for Ganga Ram, to execute any Will in favour of Pritam Singh and Gurbax Singh and the alleged Will, which was presented before Revenue Officer, after the death of Ganga Ram, is fake document. Ganga Ram during his life time never disclosed the factum of Will to his daughters nor he had any intention to execute any Will and Ganga Ram had all love and affection for his daughters till his death. There was no occasion for him to disinherit the natural heirs. After decision of the learned Collector, defendants are threatening to dispossess the plaintiffs from the suit land. 3. The suit was resisted and contested by defendants by filing their joint written statement alleging that two daughters of Ganga Ram, namely, Sikander Kaur and Sagar Kaur, were married to Prittam Singh and Gurbax Singh and their husbands were looking after Ganga Ram during his life time. The plaintiffs and their husbands never rendered any services or take care of Ganga Ram during his life time. Ganga Ram died on 4.3.1993, during his life time, he had executed a registered Will No.13 dated 5.2.1986 and the mutation of inheritance of Ganga Ram vide mutation No.1771 dated 5.5.1994 was sanctioned and attested by Assistant Collector 1st Grade, Swarghat, ignoring the registered Will. The said mutation was challenged before the learned Collector and the learned Collector, vide its order dated 4.2.1997, accepted the appeal qua share of appellant Gurbax Singh (defendant No.1). The share of Prittam Singh, who had pre-deceased Ganga Ram was given to the plaintiff and defendants No.2 and 3 in equal share, which order was challenged by the plaintiffs before the learned Divisional Commissioner. Ganga Ram, during his life time has executed a valid Will in presence of the witnesses. The learned Collector has wrongly sanctioned the mutation qua share of Pritam Singh in favour of the plaintiffs and proforma defendant No.2. After the marriage of daughters of Ganga Ram, Gurbax Singh and his brother Pritam Singh, was looking after Ganga Ram and his wife and he was happy with their service and executed a Will of his entire property in the name of Gurbax Singh and Prittam Singh (deceased). After the marriage of daughters of Ganga Ram, Gurbax Singh and his brother Pritam Singh, was looking after Ganga Ram and his wife and he was happy with their service and executed a Will of his entire property in the name of Gurbax Singh and Prittam Singh (deceased). The plaintiffs have rightly been ignored since they have never served their father during his life time and were not taking care of him and the property in dispute is stated to be in possession of defendant No.1, during life time of Ganga Ram. 4. The learned trial Court framed following issues: “1. Whether the plaintiffs and proforma defendants are owners-in-possession of the suit land, as alleged ? OPP. 2. Whether the order passed by SDO, Sadar, dated 5.5.1994 and 4.2.1997 are wrong, void and liable to be set aside, as alleged ? OPP. 3. Whether the Will alleged to have been executed by Ganga Ram, is the result of fraud ? If so its effect ? OPP. 4. Whether the plaintiffs are entitled to the relief of possession of the suit land in the alternative, as alleged ? OPP. 5. Whether the suit is not maintainable in the present form ? OPD. 6. Whether this Court has no jurisdiction to entertain the present suit ? OPD. 7. Whether the act and conduct of the plaintiffs are bars them to file the present suit, as alleged ? OPD 8. Whether the suit is bad for non-joinder and mis-joinder of necessary parties, as alleged ? OPD. 9. Whether the plaintiffs have no cause of action and locus standi to file the present suit ? OPD. 10. Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction ? OPD. 11. Whether deceased Ganga Ram had executed a registered Will on 5.2.1986 voluntarily and his property is liable to be succeed on the basis of Will, as alleged ? OPD. 12. Whether the defendant No.1 is in possession of the entire suit land on the basis of Will ? If so its effect ? OPD. 13. Relief.” 5. The learned trial Court after deciding Issue Nos.1 to 4 in favour of the plaintiffs, Issue Nos.5 to 12 against the defendants, decreed the suit. 6. OPD. 12. Whether the defendant No.1 is in possession of the entire suit land on the basis of Will ? If so its effect ? OPD. 13. Relief.” 5. The learned trial Court after deciding Issue Nos.1 to 4 in favour of the plaintiffs, Issue Nos.5 to 12 against the defendants, decreed the suit. 6. Feeling aggrieved thereby the plaintiff maintained first appeal before the learned District Judge, Bilaspur, assailing the findings of learned Court below being against the law and without appreciating the evidence and pleading of the parties to its true perspective. However, the learned Appellate Court below affirmed the findings of the learned trial Court and dismissed the appeal. Now, the appellant has maintained the present Regular Second Appeal, which was admitted on the following questions of law : “1. Whether the judgment/decree passed by the learned Courts below are the result of misreading as well as misinterpretation of oral as well as documentary evidence placed on record especially Ex.D-1, Ex.D-2 and Ex.D-3 ? 2. Whether the learned Courts below are right in rejecting the registered Will No.13 dated 5.2.1986 Ex.DW1/A, which is duly executed by deceased Ganga Ram during his life time ? 3. Whether the learned Courts below are right in passing the judgment and decree of permanent prohibitory injunction in favour of the plaintiffs since there is no issue of permanent prohibitory injunction has been framed ?” 7. Learned counsel appearing on behalf of the appellant has argued that the Will was duly registered and executant died after eight years of the execution of Will. He has further argued that learned lower Appellate Court below has not applied the law correctly with regard to proving of the Will and learned lower Appellate Court below has come to the wrong conclusion, so in the interest of justice appeal may be allowed. On the other hand, learned counsel appearing on behalf of the respondent has argued that the Will was not proved by the plaintiff, in accordance with law, as the Will was forged document, so the impugned judgment and decree passed by the learned lower Appellate Court below needs no interference. 8. In rebuttal, learned counsel appearing on behalf of the appellant has argued that the Will was registered document and it was duly registered at Swarghat. 8. In rebuttal, learned counsel appearing on behalf of the appellant has argued that the Will was registered document and it was duly registered at Swarghat. He has further argued that attesting witnesses and the scribe has duly proved the execution of the Will and there was no suspicious circumstances surrounding the Will. 9. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the entire record in detail. 10. At the very outset, the pedigree table of Ganga Ram, is as under : PEDIGREE TABLE Bahadur Pohloo Ganga Ram (Daughters of Ganga Ram) Geetto (wife) Kaushlya Devi, plaintiff No.1 w/o Joginder Singh Surti, plaintiff No.2 w/o Chet Ram Sikander Kaur, proforma defendant No.2 w/o Gurbaksh Singh Sagar Kaur, proforma defendant No.3 w/o Preetam Singh died on 30.10.1989. Meaning thereby Ganga Ram was having only four daughters and no son. He executed a Will in favour of the husbands of his two daughters. These two son-in-laws in favour of whom the alleged Will is executed by Ganga Ram are real brothers. Thus, it is clear that one of the requirement of due execution of the Will is its attestation by two witnesses. Section 68 of Indian Evidence Act speaks as to how a document required by law to be attested can be proved. On combined reading of Section 63 of the Succession At, 1925 with Section 68 of the Evidence Act, it appears that a person propounding the Will has to prove that the Will was duly executed and that can not be done by simply proving the signature of the testator on the Will but must also prove that signature were also made properly as required by clause (c) of Section 63 of the Indian Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicion circumstance surrounding to the execution of Will, proof of testamentary capacity and the signature of testator as required by law is sufficient to discharge the onus. However, when there are suspicious circumstances, the onus is always on the propounder to explain them to the satisfaction of the Court before the Court accept the Will as genuine. Where circumstance given rise to doubt, it is for the propounder to satisfy the conscious of the Court. However, when there are suspicious circumstances, the onus is always on the propounder to explain them to the satisfaction of the Court before the Court accept the Will as genuine. Where circumstance given rise to doubt, it is for the propounder to satisfy the conscious of the Court. These suspicious circumstances may be as to the genuineness of the signatures of the testator, condition of the testator’s mind depositions made in the Will may appear to be unnatural, improvable or unfair in the light of relevant circumstances or there might be every indication in the Will to show or the Will may otherwise indicate that the said deposition may not be the result of testator’s free will and mind. In such a case, the Courts would naturally expect that all legitimate suspicious should be completely removed before the document is accepted is the last Will of the testator. The presence of beneficiary is also one of suspicious circumstances. It is well settled law the Will cannot be set aside only because the beneficiary has taken active part of the execution of Will. The Will Ex.DW1/A was executed on 3.2.1986 and registered on 5.2.1986 and Ganga Ram died on 4.3.1994. Gurbax Singh (defendant No.1) while appearing as DW-2 on 25.9.2000. Similarly, his two other attesting witnesses Ram Singh and Hussan Singh had appeared as DW-3 and DW-4 on 5.10.2000 i.e. after more than 14 years from the execution of Will Ex.DW1/A. DW-1 Onkar Chand Joshi, Registration Clerk, was also examined after 14 years. In such circumstances, it was not expected out of these witnesses that they would have remembered each and every detail in respect of date, time and manner about the execution and registration of Will in question. Their statements have to be appreciated in the light of the fact that human memory can reasonably fail after such a long period. The Will Ex.DW1/A Ganga Ram bequeathed his movable and immovable property in favour of Gurbax Singh (defendant No.1) and Prittam Singh. Smt. Geeto Devi wife of Ganga Ram testator shall be entitled to her maintenance during her life time. Therefore, according to the Will, Gurbax Singh and Prittam Singh were entitled to succeed said Ganga Ram on his death in exclusion of his daughters and wife. Smt. Geeto Devi wife of Ganga Ram testator shall be entitled to her maintenance during her life time. Therefore, according to the Will, Gurbax Singh and Prittam Singh were entitled to succeed said Ganga Ram on his death in exclusion of his daughters and wife. But on the death of Ganga Ram in the year 1994, all four daughters of Ganga Ram i.e. plaintiffs and proforma defendants No.2 and 3, have also inherited Ganga Ram in equal share. This shows that Gurbax Singh had not produced the said Will Ex.DW1/A before Revenue Authorities nor sought the attestation of mutation qua the suit land in his favour in exclusion to the daughters of Ganga Ram. It is not disputed that at the time of execution of Will dated 3.2.1986, Smt. Geeto Devi wife of Ganga Ram was alive and his four daughters were very much there. There is no iota of evidence or even suggestion if Ganga Ram had any ill-will or strained relations with his wife Geeto Devi and his four daughters. Ganga Ram had equal love and affection for his daughters and wife, therefore, it does not sound in the analyzing mind why said Ganga Ram had preferred to disinherit his wife and daughters from his property in preference to his two sons-in-law Gurbax Singh and Prittam Singh. Ganga Ram had no male child and had suffered a decree of Rs.8,000/- from the learned Court below and had to pay rupees 6-7 thousands which he borrowed from money lender. Ganga Ram had executed the Will Ex.DW1/A in favour of his sons-inlaw, is not convincing because of said fact which has not been mentioned by Gurbax Singh in his statement nor pleaded in the written statement. Gurbax Singh has taken an active part in the execution of the Will, which has confined a substantial benefit to him and the propounder himself has called the attesting witnesses. The propounder is required to remove the doubt by clear and satisfactory evidence. Onkar Chand Joshi, Registration Clerk, while appearing as DW-1, has testified the original Will Ex.DW1/A and has produced the copy of original Will. However, he has deposed that copy of Will is not in his hand and is unable to explain what has been written therein. According to him, the Will was scribed on 3.2.1986, but is unable to tell as to whether this Will was presented before the Sub Registrar. However, he has deposed that copy of Will is not in his hand and is unable to explain what has been written therein. According to him, the Will was scribed on 3.2.1986, but is unable to tell as to whether this Will was presented before the Sub Registrar. Even the witnesses will not personally know to him and he has not been able to identify the signature of the Sub Registrar over the Will, since he has never worked with him. DW-2 Gurbax Singh has deposed that plaintiffs and proforma defendants are real sisters. Prittam Singh was his real brother and was husband of defendant No.2 and all sisters are married. According to him, Ganga Ram was his father-in-law and was resident of Village Jhajar and had no male issue. He has stated that he alongwith Prittam Singh rendering services to his father-in-law and the plaintiffs were residing at the house of their husbands. The Will Ex.DW1/A was executed in favour of Gurbax Singh and his brother Prittam Singh. Accordingly, the Will was scribed at Bilaspur and got registered the same at Swarghat. After the death of Ganga Ram, his last rites were performed by Gurbax Singh and the suit land is stated to be in possession of Gurbax Singh. In his cross-examination, he has stated that at the time of execution of will, he alongwith Prittam Singh, Ram Singh, Hussan Singh and Ganga Ram, came to Bilaspur and has brought the attesting witnesses to Bilaspur, who belonged to his village. Prittam Singh has identified Ganga Ram and according to Will, half of the property was given to Prittam Singh. It was Gurbax Singh who paid expenses of the Will amounting to Rs.500/-. At the time of registration of Will, both the attesting witnesses were also present and they appeared before the Sub Registrar where the Will was scribed. He has also admitted that the Will Ex.DW1/A was never produced before any Court. He has denied that a forged Will has been executed. At the same point of time, DW-3 Ram Singh attesting witness has admitted that Gurbax Singh and Prittam Singh are from his village. He has further stated that entire expenses of the execution of Will were borne out by Ganga Ram. He has further stated that Will was presented for registration on second day, but the registration shows that it was presented for registration the third day. He has further stated that entire expenses of the execution of Will were borne out by Ganga Ram. He has further stated that Will was presented for registration on second day, but the registration shows that it was presented for registration the third day. Statement of DW-2 also belies that when he says that Ram Singh and Hussan Singh were present alongwith Gurbax Singh, but PWs says that Ram Singh and Hussan Singh were not present nor Gurbax Singh was present at the time of registration of Will. Further, plaintiff Surti Devi, while appearing as PW-1, has stated that Ganga Ram was owner-in-possession of the suit land and after his death, all four sisters have come in possession of the disputed land and mutation has also been sanctioned in their favour. The defendant wanted to take forcible possession on the plea that Ganga Ram had executed a valid Will in his favour. She has further stated that Ganga Ram had equal love and affection for all four sisters and during his life time her father has never executed any document, but the defendant on the basis of forged document wanted to take forcible possession. She has further stated that Prittam Singh one of the beneficiary under the Will had expired 3-4 years prior to the death of Ganga Ram and she has also filed copy of jamabandi Ex.P1 and death certificate Ex.P2 to Ex.P4 of Geeto Devi, Ganga Ram and Prittam Singh. In her cross-examination, she has admitted that Kaushlya Devi, Surti Devi, Sikander Kaur and Sagar Kaur are real sisters and they had no brother. She has denied that Sikander Kaur and Sagar Kaur were residing with her father. She has also denied that the last rites of Ganga Ram were performed by prforma defendants No.2 and 3. However, she has admitted that the mutation was challenged before the Collector. PW-2 Shadi Lal, has reiterated the stand taken by the plaintiff and has deposed that all four sisters are in possession of the suit land according to their share and Ganga Ram had equal love and affection for all his four daughters. In his cross-examination, he has denied that plaintiffs never looked after the suit land and proforma defendants No.2 and 3 are in possession of the suit land. In his cross-examination, he has denied that plaintiffs never looked after the suit land and proforma defendants No.2 and 3 are in possession of the suit land. Both the attesting witnesses are from village of Gurbax Singh and who took them from Village Tikkari of Tehsil Nalagarh District Solan to Bilaspur, for the purpose of execution of Will and had paid the expenses for executing the Will, which fact has been admitted by the attesting witnesses Ram Singh that it was Gurbax Singh who brought the witnesses to Bilaspur. It is absolutely necessary that the testator must have signed the Will in presence of the attestator or a testator must have personal acknowledgement of his signature in the presence of the attestator as regards attestation of the Will. Clause (c) Section 63 of the Indian Succession Act, requires that the Will shall be attested by at least two witnesses. The requirement is that each of the attesting witness must have seen the testator signing or affixing his thumb mark in the Will has received from the testator a personal acknowledgement of his signature or thumb mark on the Will. There is also an additional requirement that each of the attesting witness shall also sign the Will in presence of the testator. The scribe of the Will has not been examined by the defendant and one of the attesting witness Ram Singh (DW-3), has only identified the signature of Ganga Ram. He has nowhere stated that the testator Ganga Ram affixed his signature and this witness has appended his signature in presence of the testator. Perusal of the Will shows that only one signature of Ganga Ram was obtained on the Will and not six times. The remaining five signatures on the Will were obtained at the time of registration of the Will, when admittedly this witness was not present. Though he has stated otherwise and the entire expenditure for execution of Will was borne out by Ganga Ram, which is contrary to the statement of Gurbax Singh. Similarly, this witness has nowhere stated that Ganga Ram had signed the Will in the presence of attesting witnesses. In his cross-examination, he has stated that he cannot recognize the signature at point Mark ‘X’ and Mark ‘X-6’. The alleged signatures of Ganga Ram and his statement is further falsified that Ganga Ram was identified by him before the Sub Registrar. In his cross-examination, he has stated that he cannot recognize the signature at point Mark ‘X’ and Mark ‘X-6’. The alleged signatures of Ganga Ram and his statement is further falsified that Ganga Ram was identified by him before the Sub Registrar. Admittedly, Smt. Geeto Devi wife of Ganga Ram and his four daughters i.e. plaintiffs and proforma defendants No.2 and 3, were entitled to succeed the entire property of said Ganga Ram as Class-I heirs in absence of any Will. Smt. Geeto Devi wife of Ganga Ram and his four daughters had also good relations with Ganga Ram and were residing happily with him and his daughters coming to his house frequently and Ganga Ram had equal love and affection for his wife and all daughters but no provision has been made for the daughters in Will Ex.DW1/A. The fact that the witnesses were called by Gurbax Singh son-in-law of Ganga Ram and he had taken an active part in the execution of Will, thereby other daughters of Ganga Ram have been disinherited from succession without any rhyme or reason. Since, it was a strong suspicious circumstance surrounded in the execution of Will, which remained unexplained coupled with the fact that Gurbax Singh took an active part in the execution of Will Ex.DW1/A in favour of the plaintiff and Prittam Singh, who is his brother clearly shows that the Will is not valid showing actual wish of deceased, therefore, it is not to be acted upon and has been rightly held by the learned Court below not to be a genuine document. Therefore, in the absence of any Will, all four daughters of Ganga Ram, being Class-I heirs are entitled to succeed to the estate of Ganga Ram in equal share. The plaintiffs and proforma defendants No.2 and 3 are held to be owner-in-possession of the suit land in equal share and defendant No.1 Gurbax Singh has no right, title or interest over the suit land. The defendant has been rightly restrained from interfering with the suit land in any manner since the daughters of deceased Ganga Ram i.e. plaintiffs and proforma defendants No.2 and 3 are held to be owners in possession of the suit land. In these circumstances, mutation No.1771 is held to be valid and binding on the parties and the order of learned Collector is held to be void and illegal. 11. In these circumstances, mutation No.1771 is held to be valid and binding on the parties and the order of learned Collector is held to be void and illegal. 11. From the above discussion, it is clear that the learned Appellate Court below has committed no illegality and infirmity in appreciating the evidence and pleadings of parties are appreciated by the learned Courts below to its true perspective and the documents are interpreted correctly, as per law. So, substantial question of law No.1, is answered holding that learned Courts below has appreciated oral as well as documentary evidence to its true perspective and Ex.D-1 to Ex.D-3 are correctly appreciated. Substantial question of law No.2, is decided accordingly, as the Will could not be proved by the beneficiary, the learned Courts below has rightly rejected the Will and it was not proved on record in accordance with law and on contrary the plaintiff has proved the Will to be a forged document, as the parties are in exclusive possession of their shares on the basis of mutation attested after the death of Ganga Ram in favour of all his four daughters. The learned Courts below have rightly granted the relief of Permanent Prohibitory Injunction in the facts and circumstances of the case. The parties were knowingly their case while leading evidence, so substantial question of law No.3, is decided accordingly holding the findings of the learned Courts below are as per law. 12. With these observations, the appeal of the appellant is without merit and deserves dismissal. 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.