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2017 DIGILAW 740 (HP)

Jamna Devi v. Vikas Kumar

2017-06-30

SANJAY KAROL

body2017
JUDGMENT : Sanjay Karol, J. Appellants lay challenge to the impugned judgment dated 17th May, 2006, passed by learned District Judge, Hamirpur, H.P., in Probate Case No.1 of 2005, titled as Vikas Kumar vs. General Public & others, allowing the petition for probate of Will, so filed under Section 276 of the Indian Succession Act, 1925 (hereinafter referred to as “the Act”). 2. Certain facts are not in dispute. Tej Nath, executant of Will Ext. PW2/A, dated 29th August, 2004, expired on 31st August, 2004. The deceased left behind legal heirs i.e. his son, namely, Vikas Kumar (respondent No.1 herein); beneficiary under the Will, his wife Jamna Devi (appellant No.1 herein); daughters Anita Devi and Sangita Devi (appellants No.2 and 3 herein); and mother Kaushalya Devi (proforma respondent No.3 herein). The Will is propounded by the sole beneficiary i.e. son Vikas Kumar and the challenge thereto is laid only by the wife and daughters of the deceased Tej Nath. 3. In order to establish his case, the propounder has examined himself as PW-2, the Scribe Parkash Chand (PW-3) and the attesting witness Ram Lal (PW-4). 4. The Objectors have examined two witnesses i.e. Kamla Devi (RW-1) and Bhagat Singh (RW-2). 5. It is a settled principle of law that more specifically when the legal heirs are excluded from inheritance, the onus to prove and establish valid execution of the Will, is upon the propounder. 6. Now, in the instant case, one finds from the perusal of testimony of the witnesses, so examined by the parties, that relations between the executant and the objectors were strained. The wife had been living separately from her husband. She had been maintaining her children of her own and marriage of one of the daughters took place in which, it has not come, either the son or the executant (deceased) had participated. 7. One finds the testimony of Vikas Kumar, Parkash Chand and Ram Lal qua execution of the Will by the executant to be convincing. The Scribe is categorical that the Will came to be scribed on the asking of the executant, contents whereof were made known to him and the same came to be signed by the executant in the presence of the witness and vice versa. 8. The Scribe is categorical that the Will came to be scribed on the asking of the executant, contents whereof were made known to him and the same came to be signed by the executant in the presence of the witness and vice versa. 8. Noticeably, in the un-rebutted testimony of these witnesses, it stands established that at the time of execution of the Will, the executant was in a sound disposing state of mind. As such, it is in this backdrop, one finds the Court below to have correctly and completely appreciated the material so placed on record by the parties while returning its findings, holding the Will to have been validly executed in favour of the beneficiary. 9. Learned counsel for the appellants points out the contradictions, so observed by the trial Court in para-13 of the impugned judgment, create suspicion or doubt with regard to the execution of the Will. Perusal of the said paragraph reveals that the trial Court has correctly accounted for the same, finding the contradictions not to be material so as to raise a suspicion or doubt with regard to genuineness of the execution of the Will. 10. It is further argued that though the probate sought was only with regard to an account so opened in a Post Office, wherein a sum of Rs.30,000/- stood deposited, yet the trial Court granted the probate with respect to the estate of deceased Tej Nath. The issue before the Court was twofold: (a) as to whether the probate ought to have been issued in favour of the propounder; and (b) as to whether the Will was validly executed by the executant or not. 11. Perusal of the plaint only reveals that the plaintiff was seeking probate with respect to both moveable and immovable properties. The contention only merits rejections, considering the ambit and scope of the provisions of Section 273 of the Act, clearly specifying that probate shall have effect over all the property and estate, movable or immovable, of the deceased, throughout the State in which the same is granted, and shall be conclusive as to the representative title against all debtors etc. 12. Significantly, the stand taken by the objectors was that the Will is forged and not about the soundness of the mind of the testator. 12. Significantly, the stand taken by the objectors was that the Will is forged and not about the soundness of the mind of the testator. In fact, it is not even suggested to the witnesses that the testator was suffering from such an ailment that he was not in a condition to understand the consequences of his actions. No doubt, it is true that the executor died within two days after the execution of the Will but then this fact alone would not be a reason, sufficient enough, to raise suspicion excluding the objectors from inheritance particularly, when they had been residing separately since long. One also cannot ignore the admission made by the wife (objector) during the course of examination that the deceased had died as a result of heart attack. In this view of the matter, I find no merit in the instant appeal and the same is accordingly dismissed alongwith with pending applications, if any.