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2017 DIGILAW 787 (HP)

Ram Rattan v. Nandu Ram

2017-07-12

DHARAM CHAND CHAUDHARY

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Dharam Chand Chaudhary, J (Oral). Defendants No. 1 to 4 in the suit aggrieved by the concurrent findings recorded against them by both Courts below are in second appeal before this Court. Challenge herein is to the judgment and decree dated 3.8.2002 passed by learned District Judge Bilaspur in Civil Appeal No. 53/94 whereby judgment and decree dated 28.4.1994 passed by learned Sub Judge Ist Class, Bilaspur, camp at Ghumarwin in case No. 76- 1/92-89 has been affirmed and the appeal dismissed. It is the genuineness and authenticity of Will Ext. DW-4/A allegedly executed by Kanhu Ram, the predecessor-in-interest of the parties to the suit in favour of defendants No. 1 to 4 which is under challenge in the main suit. 2. The plaintiffs in the suit were Nandu, the predecessor-in-interest of respondents No. 1(a) to 1(c), Jyoti Ram respondent No. 2 and Baldev, the predecessor-in-interest of respondents No. 3 to 5. The suit was filed by them with the submission that the land measuring 17.8 bighas bearing Kh. Nos. 139, 140, 141, 142, 146, 179 and 248 situated in village Balhsina, Pargana Bachhretu, Tehsil Ghumarwin, District Bilaspur, H.P (hereinafter referred to as the suit land), is in their ownership and possession along with Dilbar (father of appellants-defendants No. 1 to 4), Rupan Devi and Durgi Devi proforma defendants No. 5 to 7 in the suit whereas respondents No. 6 & 7(a) in the present appeal. The suit land came to them by way of succession. Their predecessor-in-interest Kahnu was owner-in-possession of the suit land. Plaintiffs and proforma defendants were alone his legal heirs. After his death, they all inherited the suit land and other movable and immovable property of deceased Kahnu by way of succession in equal shares. The defendants, however, started threatening that the plaintiffs have no right, title or interest in the suit land on the plea that their father deceased Kahnu has executed Will in their favour and now by virtue of Will, they are owner-in-possession of the same. Kahnu Ram had never executed any Will in favour of defendants No. 1 to 4. If any such Will is in existence, the same was claimed to be wrong, illegal and unnatural, hence not binding on them. Kahnu Ram had never executed any Will in favour of defendants No. 1 to 4. If any such Will is in existence, the same was claimed to be wrong, illegal and unnatural, hence not binding on them. The Will also was sought to be declared illegal, null and void and also with the collusion of proforma defendant No. 5 Dilbar, the father of defendants No. 1 to 4. The decree for permanent prohibitory injunction was also sought against the defendants. 3. Defendants No. 1 to 4 have contested the suit on several grounds. According to them, their grandfather Kahnu Ram had executed legal and valid Will during his life time in their favour. The same was got registered with Sub Registrar, Ghumarwin on 26.11.1986 vide entry No. 608, Book No. 3/101 at page Nos. 52 and 53. On the basis of the Will, it is they who alone are the legal heirs of deceased Kahnu Ram. The same is stated to be binding on the plaintiffs and proforma defendants. On the death of Kahnu Ram on 23.3.1989, mutation No. 475 of the suit land was also attested in their favour on 7.8.1989 by Assistant Collector, Ist Grade, Ghumarwin, on the basis of the Will dated 26.11.1986. The suit, as such, was sought to be dismissed. 4. Replication was also filed. On the pleadings of the parties, the following issues were framed: “1. Whether the plaintiff alongwith defendants No. 5, 6 & 7 are owners in possession of the suit land as alleged?OPP 2. Whether the plaintiffs and proforma defendants are entitled for the relief of permanent injunction against defendants No. 1 to 4 as alleged? OPP 3. Whether the suit is not maintainable? OPD 4. Whether the suit is time barred? OPD 5. Whether the suit is bad for mis-joinder and nonjoinder of necessary parties? OPD 6. Whether the plaintiff is estopped to file the present suit by his act and conduct? OPD 7. Whether the plaintiff has no locus standi to file the suit? OPD 8. Whether the suit is not properly valued for the purpose of court fees and jurisdiction? OPD 9. Whether the civil Court has no jurisdiction to entertain and try the present suit? OPD 10. Whether Kahnu Ram has executed a registered will dated 26.11.1986 in respect of the suit property in favour of defendants Nos. 1 to 4, if so its effect? OPD 11. OPD 9. Whether the civil Court has no jurisdiction to entertain and try the present suit? OPD 10. Whether Kahnu Ram has executed a registered will dated 26.11.1986 in respect of the suit property in favour of defendants Nos. 1 to 4, if so its effect? OPD 11. Relief.” 5. The plaintiffs in support of their case have examined PW-1 Nandu Ram, plaintiff No. 1 (since dead), PW-2 Sohan Singh and PW-3 Niknu Ram to prove that on the death of Kahnu, the suit land was inherited by the plaintiffs and proforma defendants and that said Sh. Kahnu was being looked after and maintained by plaintiff No. 1 Nandu. On behalf of the plaintiffs, reliance was also placed on the copy of Pariwar Register Ext. P-1 qua entries pertaining to the Pariwar of Kahnu Ram. Ext. P-2 is the entries qua the Pariwar of defendant No. 5 Dilbar. Ext. P-3 is certificate issued by Pradhan Gram Panchayat Ghandir, Ext. P-4 another entry qua pariwar of deceased Kahnu Ram in the Pariwar Register and Ext. P-5 copy of Jamabandi pertaining to the suit land. 6. On the other hand Ram Rattan defendant No. 1 has stepped into the witness box as DWI. The defendants have examined registration Clerk Khushi Ram, Office of Sub Registrar Ghumarwin as DW-2. DW-3 Gorkhi Ram is one of the attesting witnesses to the Will Ext. DW-4/A. The scribe of the Will is DW-4 Shyama Nand Soni. Reliance has also been placed on the copy of Jamabandi Ext. D-1 for the year 1985-86 to prove that on the death of Kahnu Ram, mutation of suit land was sanctioned and attested in favour of defendants No. 1 to 4 and copy of mutation is Ext. D-2. 7. On appreciation of the oral as well as documentary evidence, learned trial Court has decided issues No. 1 & 2 in affirmative i.e. in favour of the plaintiffs while arriving at a conclusion that they are owners-in-possession of the suit land along with proforma defendants No. 5 to 7, hence are entitled to the decree of permanent prohibitory injunction against defendants No. 1 to 4. The remaining issues No. 3 to 9 were, however, answered in negative i.e. against the contesting defendants No. 1 to 4. The remaining issues No. 3 to 9 were, however, answered in negative i.e. against the contesting defendants No. 1 to 4. Issue No. 10 was also decided against them as in the opinion of learned trial Court a legal and valid Will was not executed nor registered in favour of defendants No. 1 to 4 on 26.11.1986. The suit, as such, was decreed whereby the plaintiffs and proforma defendants No. 5 to 7 were declared joint owners-in-possession of the suit land in equal share. The suit for the relief of permanent prohibitory injunction was also decreed against defendants No. 1 to 4. 8. Learned lower appellate Court, in appeal, has affirmed the judgment and decree passed by learned trial Court and has dismissed the appeal. 9. The legality and validity of the impugned judgment has been questioned on the grounds inter-alia that the same is against law and facts of the case. The Will Ext. DW-4/A has erroneously been declared illegal, null and void as according to the appellants-defendants, the execution thereof stands satisfactorily proved from the testimony of DW-3 Gorkhi Ram and DW-4 Shyama Nand, the attesting witness and scribe, respectively. The mere fact that the testator used to sign the documents, however, on the Will has put thumb mark has unnecessarily been given undue weightage as he allegedly did so due to his old age. The findings recorded by both Courts below are the result of mis-appreciation and misreading of oral as well as documentary evidence available on record. 10. The appeal has been admitted on the following substantial questions of law: “1. Whether the findings of the court below relating to the execution and registration of the will Ext.DW4/A are based on misreading and misconstruction of oral and documentary evidence and the basic document of title are perverse and liable to be set-aside. 2. Whether the alleged suspicious circumstances used for discarding the will had been explained and execution thereof was established from the statements of witnesses. 3. Whether on the proper construction f Section 63 of the Indian Succession Act, the due execution of the will was established and inference about its genuineness was established on the material on record.” 11. Mr. 2. Whether the alleged suspicious circumstances used for discarding the will had been explained and execution thereof was established from the statements of witnesses. 3. Whether on the proper construction f Section 63 of the Indian Succession Act, the due execution of the will was established and inference about its genuineness was established on the material on record.” 11. Mr. Rajneesh K. Lall, Advocate while taking this Court through the oral as well as documentary evidence available on record, has urged that the execution and attestation of the Will in terms of Section 63 of the Indian Succession Act stands satisfactorily proved from the testimony of one of the attesting witness DW-3 Gorkhi Ram and that of the scribe DW-4 Shyama Nand. The registration thereof, according to Mr. Lall is duly proved from the record produced by DW-2 Khushi Ram, Registration Clerk in the Office of Sub Registrar, Ghumarwin. With these submissions, Mr. Lall has tried to persuade this Court to take the view of the matter contrary to the one taken by the Courts below. 12. On the other hand, Mr. B.P. Sharma, Sr. Advocate assisted by Mr. Arun Kumar, Advocate, has argued that the execution of the Will Ext. DW-4/A is not at all proved from the evidence available on record, therefore, both the Courts below have rightly ignored the same and dismissed the suit. 13. The substantial questions of law detailed supra pertains to the legality and validity of the findings recorded by both the Courts below qua the execution of Will Ext. DW-4/A which as per the claim of defendants No. 1 to 4 being contrary to the evidence available on record are perverse. The substantial questions of law, which arise in this appeal, are mixed questions of facts and law. Therefore, in order to adjudicate the same, it is desirable to make reference to the provisions contained under Section 63 of the Indian Succession Act, which provides the mechanism to infer the execution of a legal and valid Will. The substantial questions of law, which arise in this appeal, are mixed questions of facts and law. Therefore, in order to adjudicate the same, it is desirable to make reference to the provisions contained under Section 63 of the Indian Succession Act, which provides the mechanism to infer the execution of a legal and valid Will. The same reads as follows: (i) the Will must be attested by atleast two witnesses; (ii) Each of these- (a) must either see the testator sing or affix his mark to the Will or must see some other person sign the Will, in the presence and by the direction of the testator, or (b) must receive from the testator a personal acknowledgement of his signature or mark or of the signature of such other person. (iii) Each of these must sign the Will (iv) They must sign in the presence of the testator. 15. This Court in Kishan son of Shri Kundan versus Smt. Tulki Dev wd/o Shri Kundan, 2013 (1), Civil Court Cases 548 (H.P.), after taking note of the legal position that not only the signature of the executor on the Will are required to be proved but the execution thereof should also be free from any suspicious circumstance and that if a Will is shrouded by suspicious circumstances it cannot be treated as the last testamentary disposition of the testator has held that the Will set up in that case was not the last testamentary disposition of the testator being shrouded by suspicious circumstances. 16. Applying the legal principles settled in the judgment supra in the case in hand, it would not be appropriate to conclude that the execution of the Will Ext. DW-4/A is not at all proved and the same rather being shrouded by suspicious circumstances cannot be said to be the last testamentary disposition of the testator deceased Kahnu Ram by any stretch of imagination. The testator has admittedly died at a stage when he was more than 100 years of age. PW-1 Nandu Ram has stated in his cross-examination that his father deceased Kahnu Ram has died at a stage when he was more than 100 years of age. As per the testimony of PW-2 said Sh. The testator has admittedly died at a stage when he was more than 100 years of age. PW-1 Nandu Ram has stated in his cross-examination that his father deceased Kahnu Ram has died at a stage when he was more than 100 years of age. As per the testimony of PW-2 said Sh. Kahnu Ram has died when he was 105 years of age whereas as per the evidence as has come on record by way of testimony of DW-1 Ram Rattan (defendant No.1), Kahnu Ram, his grand father has died at a stage when he was 110 years of age. The Will in question was executed in the year 1986. DW-1 in his crossexamination has further stated that in the year 1986, his grand father (the testator) must be 105 years of age or he may be 110 years old in 1986. In view of such evidence available on record, it would not be improper to conclude that the testator has died at a stage when his age was 105-110 years. It is not expected from a person of his age to move about and visit the place of marginal witness Gorkhi Ram (DW-3) and the Scribe DW-4 Shyama Nand who belong to different villages from that of the testator. Neither DW-2 nor DW-4 Shyama Nand have disclosed the name of the place where the Will was executed. As per the version of DW-3 Gorkhi Ram, in his cross-examination, the distance of Kajail from Balhsinha is not 4 km. but 2.500 km. According to him, the testator Sh. Kahnu Ram had come personally to call him at his house. It is not expected from a person of the age in between 105 to 110 years to travel up to a distance of even 2.500 km. Therefore, the execution of the Will by deceased Kahnu Ram is highly doubtful. The necessary constituents of execution of a valid Will are not also proved because only marginal witnesses of the Will DW-3 Gorkhi Ram has not stated while in the witness box that the testator on understanding and admitting the contents of the Will to be true and correct had put his thumb mark thereon and he had seen him while putting his thumb mark thereon. It has also not been stated by him that he was seen by the testator while putting his signatures on this document. 17. It has also not been stated by him that he was seen by the testator while putting his signatures on this document. 17. Interestingly enough, as per the admitted case of the parties, the testator used to put his signatures on documents. It is not understandable as to why he had not signed the Will in question and to the contrary put his thumb mark thereon. The only explanation that he was feeble and his hands used to tremble, therefore, it was not possible for him to put his signatures is neither plausible nor reasonable and rather germane of the mind of defendants. 18. The further claim of the defendants that deceased Kahnu used to live with them and was satisfied with the services they were rendering to him hence due to this reason executed the Will Ext. DW-4/A in their favour is also false for the reason that they used to reside at Village Ghandir with his father defendant No. 5 Dilbar. The plaintiffs used to reside in Village Balhsinha. The testator also used to reside in Village Balhsinha as is apparent from the Will Ext. DW-4/A. The plaintiffs also used to reside in the same village. Therefore, the case of the plaintiffs that deceased Kahnu Ram had been residing with plaintiff No. 1 Nandu (since dead) is nearer to the factual position. This aspect of their case even finds support from the copy of Pariwar Register Ext. P-1 and certificate Ext. P- 3, issued by the Pradhan Local Gram Panchayat. As per these documents, deceased Kahnu and deceased plaintiff Nandu were members of one of the same family whereas as per the entries in copy of Pariwar Register Ext. P-2 Dilbar was residing separately with his son the defendants and other members of his family. Deceased Kahnu was not residing with them. As per the entries in the copy of Pariwar Register Ext. P-4, the family of deceased Kahnu was residing in village Balhsinha. It is, therefore, difficult to believe that deceased Kahnu used to reside with the defendants and that it is due to the services they rendered to him he bequeathed the suit land in their favour vide Will Ext. DW-4/A. The plaintiffs’ case that the testator had been residing in village Balhsinha and being looked after by plaintiff No. 1 Nandu finds support from the testimony of PW-2 Sohan Singh and PW-3 Niknu Ram also. DW-4/A. The plaintiffs’ case that the testator had been residing in village Balhsinha and being looked after by plaintiff No. 1 Nandu finds support from the testimony of PW-2 Sohan Singh and PW-3 Niknu Ram also. 19. Even if the Will was executed and presented for attestation on 25.11.1986, it is not understandable as to why the same was not attested by the Sub Registrar on the same day because the date of its attestation is 26.11.1986. This aspect of the matter also finds support from the testimony of DW-2 Khushi Ram, meaning thereby that the execution of the Will in the manner as claimed by the defendants is highly doubtful. Both witnesses associated at the time of execution of the Will are outsiders and they do not belong to the same village. It is not understandable as to why the testator was given preference in the matter of attestation of the Will in question. The present, as such, is a case where the propounders defendants No. 1 to 4 have miserably failed to discharge the onus upon them to prove that Will Ext. DW-4/A is the last testamentary disposition of the testator. The same, as such, cannot be treated to be a legal and genuine document. Both the Courts below have rightly concluded so on reappraisal of the evidence available on record in its right perspective. 20. In view of what has been said hereinabove, there is no merit in this appeal and the same is accordingly dismissed. Consequently, the judgment and decree under challenge is affirmed, however, no orders so as to costs.