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2018 DIGILAW 1481 (HP)

Lesh Ram v. Tej Ram

2018-08-08

SURESHWAR THAKUR

body2018
JUDGMENT Sureshwar Thakur, J. - The instant appeal is directed by the aggrieved plaintiff against the concurrent verdicts pronounced by both the learned Courts below, whereunder, both dismissed the plaintiff''s suit for declaration, for, setting aside, the, Will executed by deceased Bhup Singh qua his estate, vis-a-vis, the defendants. 2. Briefly stated the facts of the case are that the Sh. Lesh Ram plaintiff has filed suit for declaration with a consequential relief of possession averring therein that late Sh. Bhup Singh was grand father of the plaintiff, who was the joint co-owner in possession to the extent of 1/8th share out of the land comprised in Khewat No.25, Khatauni No.38, Khasra Nos. Kitta 6 measuring 30-2-1 bighas, situated at Mohal Tihri No. HB 408, Illaqua Uttarsal, Tehsil Sadar, District Mandi, H.P. It has been averred that the father of the plaintiff one Sobha Ram, was the only son of Sh. Bhup Singh, who had predeceased the grand father of the plaintiff. The grandfather of the plaintiff was having his property in Mhal Sairi, Sub-Tehsil Aut and mohal Tihri, Tehsil Sadar, Mandi, H.P. He had already disposed of his property of Mohal Sair during his life time. The father of the plaintiff had died when the plaintiff was about three years old and after the death of the his father Sobha Ram, the mother of the plaintiff eloped with some other person and settled at some other place, while the plaintiff was brought up by his maternal grand father. It is further pleaded that when the plaintiff attained majority, he was granted Nautor land measuring 0-4-0 bighas in Mohal Sairi, Sub-Tehsil Aut, upon which the plaintiff had constructed his residential house and is residing along with his family there. The grand father of the plaintiff was having knowledge about the plaintiff, but he did not call him to his house nor honoured him despite the fact that the plaintiff was the only legal heir of his grand father, entitled to inherit him after his death. It is further pleaded that the grandfather had died at village Tihri on 9.9.2005 and on getting information of his death the plaintiff went to Tihri, performed the funeral ceremonies of his grandfather. It is further pleaded that the grandfather had died at village Tihri on 9.9.2005 and on getting information of his death the plaintiff went to Tihri, performed the funeral ceremonies of his grandfather. It is further pleaded that after performing ceremony of his grand father, the plaintiff took possession of the suit land of his grandfather but the defendants on 15.9.2005 forcibly dispossessed the plaintiff and disclosed that the deceased had bequeathed he suit land in their favour and they are owners of the suit land. It is further pleaded that the defendants claimed that the deceased has executed will in favour of the defendants. It is further pleaded that after going through the said Will No. 202 of 22.8.1994, it is revealed that the Will is the result of mis-representation undue influence, coercion, fraud and deception practised by the propounder upon the testator. It is further pleaded that the Will is a forged, faked and fictitious document, having been procured by the defendants after exercising their undue influence, coercion, mis-representation of facts etc. which is also shrouded with suspicious circumstances and the suit land is the ancestral joint Hindu Family and coparcenary property devolved upon the testator from his ancestors. It is further pleaded that the deceased was not competent to alienate the same being ancestral coparcenary property. 3. The defendants contested the suit and filed written statements, wherein, they have taken preliminary objections qua maintainability and limitation. On merits, it is pleaded that the Bhup Singh was owner in possession to the extent of 1/8th share of the land. It is further pleaded that the Will No.202 of 22.8.1994 is correct and is not the result of mis-representation, undue influence coercion, fraud and deception. It is further pleaded that the deceased has executed Will with his free consent and in good state of health in the presence of the marginal witnesses. It is further pleaded that the defendants are owners in possession of the suit land. 4. The plaintiff filed replication to the written statement of the defendant(s), wherein, he denied the contents of the written statement and re-affirmed and reasserted the averments, made in the plaint. 5. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the suit land is joint Hindu Family Ancestral and coparcenary property, as alleged?OPP. 2. 5. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the suit land is joint Hindu Family Ancestral and coparcenary property, as alleged?OPP. 2. Whether the Will dated 22.081994 executed by Bhup Singh, predecessor in interest of the plaintiff in favour of the defendants is valid Will, as alleged?OPD. 3. Whether the Will dated 22.08.1994 is null and void, as alleged?OPD. 4. Whether the plaintiff is entitled for the relief of possession of the suit land, as alleged?OPP. 5. Whether the suit barred by limitation, as alleged?OPD. 6. Whether the suit is not maintainable?OPD. 7. Whether the plaintiff has not approached the court with clean hands, if so its effect? OPD. 8. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court hence dismissed the plaintiff''s suit. In an appeal, preferred therefrom, by the plaintiff/appellant herein, before the learned First Appellate Court, the latter Court dismissed the appeal, and, affirmed the findings recorded by the learned trial Court. 7. Now the plaintiff/appellant herein, has instituted the instant Regular Second Appeal, before, this Court, wherein it assails the findings, recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, this Court, on 4.5.2009, admitted the appeal instituted by the plaintiff/appellant, against, the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. Whether the impugned Will is the result of mis-representation, unde influence, coercion, fraud, and deception practised by the propounder and the findings to the contrary are illegal, which has result in the miscarriage of justice? 2. Whether the alleged Will is shrouded with suspicious circumstances as it contains wrong recitals? Substantial questions of Law No.1 and 2: 8. The learned counsel appearing for the plaintiff/appellants has contended with much vigour, (i) that the registered testamentary disposition executed by deceased Bhup Singh, vis-a-vis, his estate qua the defendants, being a sequel of fraud and misrepresentation. 2. Whether the alleged Will is shrouded with suspicious circumstances as it contains wrong recitals? Substantial questions of Law No.1 and 2: 8. The learned counsel appearing for the plaintiff/appellants has contended with much vigour, (i) that the registered testamentary disposition executed by deceased Bhup Singh, vis-a-vis, his estate qua the defendants, being a sequel of fraud and misrepresentation. However, even though the aforesaid contention is embedded, upon, averments in consonance therewith, standing, embodied in the plaint, (ii) yet the plaint omits, to, with specificity, rather adumbrate the manner, of, vices, of, fraud, mis-representation and deception, being practised, upon, the deceased testator one Bhup Singh by the beneficiaries of his testamentary disposition, (iii) nor cogent evidence stand adduced qua, in, the deceased testator, rather executing his registered testamentary disposition, borne in Ex.DW1/A, his executing it, under, a pretext of his rather executing a document other than a Will. Consequently, want of casting of pleadings with specificity, vis-a-vis, the defendants rather practising vices, of, fraud, misrepresentation, upon, the deceased testator, and, also want of evidence in display, of execution of Ex.DW1/A, rather being arising, from his being pretextually beguiled, to emboss his thumb impression upon Ex.DW1/A, thereupon, begets conclusion qua the aforesaid vices purportedly permeating, the, executing of Ex.DW1/A, rather remaining not cogently proven. 9. Be that as it may, the learned counsel appearing for the aggrieved plaintiff/appellant, has contended with much vigour before this Court, (a) that there occurring gross mis-appraisal, of, the evidence on record, by both the learned Court below, (b) in both making a concurrent conclusion qua Ex.DW1/A, being proven to stand validly and duly executed, by its executant. However, the aforesaid submission is also wanting vigour, (c) given the scribe of Ex.DW1/A, visibly a registered testamentary disposition, one Bhagirath, DW3, rather making clear articulations, in his deposition, qua at the behest of deceased testator, his scribing all the recitals occurring in Ex.DW1/A, on, 22.08.1994, (d) besides, he has proceeded to testify qua thereafter his reading over and explaining to the deceased testator, all the contents thereof, whereafter, the deceased testator, after comprehending contents thereof, hence proceeding to in his presence, and, in the presence of the marginal witnesses thereto, append his thumb impression thereon, and, whereafter, the marginal witnesses, vis-a-vis, Ex.DW1/A, also in the presence, of, the deceased testator hence, proceeding to emboss their respective signatures thereon. The aforesaid testification of PW-3, the scribe of Ex.DW1/A, remains unrebutted, even during the course of his being subjected, to, a scathing cross-examination, (e) consequently, credence is to be imputed to his testification borne in his examination-in-chief. Corroboration to the testification of DW-3 is meted by DW-4, one Geeta Nand, the apt marginal witness to Ex.DW1/A, who, in concurrence with the deposition of DW-3, has rendered, a, deposition qua the deceased testator, in his presence, and, in the presence, of, the, other marginal witness to Ex.DW1/A, embossing his thumb impression(s) thereon, and, thereafter both DW-4 and other marginal witness thereto, also in the presence , of, the deceased testator, rather appending their respective signatures thereon. He has also testified qua one Amar Singh Verma, who testified as DW-2, also in the respective presences, of, the executant of Ex.DW1/A, and, in the presence of the other marginal witnesses thereto, hence, proceeding to endorse his signature thereon, as an identifier of the deceased testator, (f) and, prominently has testified qua throughout the course of the recitals being scribed by DW-3, upon, Ex.DW1/A, and,upto the complete execution, of Ex.DW1/A, DW-3 remaining present also the executant and both marginal witnesses thereto remaining present. The afore referred testification by DW-4, the marginal witness, remains uneroded, vis-a-vis, its efficacy, even during, the course of his being subjected, to, a scathing cross-examination, hence, his testification, in corroboration, to the testification, of, the scribe of Ex.DW1/A, is to be meted credence. 10. The effect of the concurrent corroborative testification(s) being rendered by the aforesaid witnesses, (i) is qua the propounders of Ex.DW1/A efficaciously proving hence all the enjoined statutory parameters, borne in Section 63 of the Indian Evidence Act, (ii) parameters whereof, are comprised in, theirs being enjoined to prove qua the deceased testator appending his signatures or thumb impression(s), upon, the relevant testamentary disposition, in the presences of the marginal witness, and, each of the marginal witnesses also in the presence, of, the deceased testator thereafter proceeding, to make the relevant embossings, of, their signatures or thumb impressions, upon, the apt testamentary disposition. Corollary thereto, especially when no evidence has been adduced, qua the deceased testator not being possessed, of, a sound disposing state of mind, rather, with all the aforesaid witnesses deposing qua the deceased testator appending his thumb impression upon Ex.DW1/A, after his understanding, all the recitals borne therein, (iii) rather engenders a firm inference qua the execution of Ex.DW1/A being free from any stains of it being not voluntarily executed by deceased testator, nor his in contemporaneity of his executing Ex.DW1/A, his being entailed with any mental disability not it can be concluded qua the execution of Ex.DW1/A, being a sequel of any active fraud or mis- representation or deception being exerted upon the deceased testator, by the beneficiaries thereof or by the marginal witnesses thereto. Preeminently, it hence is to be concluded qua the execution of Ex.DW1/A being not the result of the deceased testator being pretextually beguiled to execute it. Furthermore, the effect of the aforesaid conclusions, is, qua the counsel for the plaintiff, rearing mis-founded pleas qua the execution of Ex.DW1/A being sequel of fraud and mis-representation. Contrarily with DW-2, who is a practising advocate at District Courts Manadi, making a clear voicing in his testification qua after the execution of Ex.DW1/A, the latter exhibit being carried to the office of Sub Registrar concerned, whereat, also the deceased testator, had, proceeded to in the presence of the Sub Registrar, hence append his thumb impressions thereon, underneath the signatured, and, signed endorsement made by the Sub Registrar concerned, with voicings therein, qua all the recitals occurring therein, being readover and explained to the deceased testator, and, making of the apt endorsements rather ensuring from, his ensuring qua the deceased testator, and, whereat DW-2, the identifier of the deceased testator had also proceeded to emboss his signature, rather marshals an inference qua execution of Ex.DW1/A standing proven to be validly and duly executed. The aforesaid inference gathers immense strength from the factum of the relevant endorsement, being not attempted to be rid of its efficacy, by cogent rebuttal evidence, being adduced by the plaintiff. 11. Nonetheless, the counsel for the plaintiff has contended that with the plaintiff casting averment in the plaintiff, averments whereof read as under:- "(a). That in the Will, the testator has no son and daguther and his wife had also died. 11. Nonetheless, the counsel for the plaintiff has contended that with the plaintiff casting averment in the plaintiff, averments whereof read as under:- "(a). That in the Will, the testator has no son and daguther and his wife had also died. No reference in the wil has been given of his pre-deceased son Sobha Ram and of the plaintiff, who is grand-son of the deceased testator; (b) The defendants are described to be nephews of the deceased, but they are not in any manner related with the deceased and are strangers; (c) The bequeathed property, i.e. suit land, is the ancestral joint Hindu Family and co-parcenary property devolved upon the testator from his ancestors, who merely the custodian and Karta of the said Joint Hindu Family and ancestral, coparcenary property and was not legally competent to alienate the same in any form and manner in recognition of the right of inheritance of the plaintiff, by virtue of his birth in the said Family;" thereupon, it was incumbent upon the propounders of Ex.DW1/A, to, render tangible explication qua therewith, whereas, no tangible explanation being meted qua the hereinabove extracted apt suspicious circumstances, hence, surrounding the execution of Ex.DW1/A, thereupon, no credence is to be meted to the testification, rendered by the marginal witnesses or to the testifications of DW-2 and DW-3. The aforesaid submission, does carry some weight, especially when the propounders of Ex.DW1/A, are, not related to the deceased testator, rather appeared to be mis-recited in Ex.DW1/A, to be his nephew, (i) yet he efficacy of the aforesaid submission, is waned, in the face of disinheritance of the plaintiff, a close relative of the deceased testator, hence emanating, as testified, by DW-5 Joginder Pal, the then Up Pradhan, of, Gram Panchayat Tihri, from, the deceased testator being maintained and looked after, by the defendants, whereas, the plaintiff neither maintaining nor tending to the needs of the deceased testator, (ii) besides when he also renders a candid and clear testification qua the plaintiff not attending, the, funeral of the deceased testator, (iii) furthermore, with his also testifying qua even the last rites of the deceased testator being performed by the defendants, and, when, the aforesaid testification is rendered by a person, who holds his abode in close proximity to the abode of the deceased testator, (iv) besides with his aforesaid testification remaining uneroded, even during, the course of his scathing cross- examination, thereupon, the voicings borne in his examination-in-chief, acquire immense vigour, and, all also hence categorically spell out the reasons, prevailing upon the deceased testator, for bequeathing his estate, vis-a-vis, the defendants, and, qua also hence the deceased testator, rather taking to disinherit the plaintiff. Consequently, this Court concludes qua the defendants rather succeeding, in, dispelling all the suspicious circumstances hence surrounding the execution of Ex.DW1/A, in sequel, it stands concluded, that, the defendants hence cogently proving, the, due and valid execution of Ex.DW1/A, by the deceased testator. 12. The above discussion, unfolds, that the conclusions as arrived by the learned first Appellate Court as well as by the learned trial Court, being based, upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court, as well as, the learned tiral Court, have not, excluded germane and apposite material from consideration. Accordingly, the substantial questions of law are answered in favour of the respondents/defendants, and, against the appellant/plaintiff. 13. In view of the above discussion, there is no merit in the instant appeal and it is dismissed accordingly. In sequel, the concurrent judgment(s) and decree(s) rendered by both the learned Courts below are affirmed and maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of. 13. In view of the above discussion, there is no merit in the instant appeal and it is dismissed accordingly. In sequel, the concurrent judgment(s) and decree(s) rendered by both the learned Courts below are affirmed and maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs.