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2018 DIGILAW 1659 (HP)

Karam Singh v. Bauhanu alias Baleshru

2018-09-13

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. The plaintiffs' suit for rendition, of, a declaratory decree, for, quashing of Will of 3.7.2002, besides for quashing, of, mutation No.311 of 24.9.2002, attested in sequel thereto, stood, dismissed by the learned trial Court, and, in an appeal carried there from, by the aggrieved plaintiffs, before the learned First Appellate Court, the latter Court allowed the plaintiffs' appeal, where against, the aggrieved defendants, now, prefers the instant regular second appeal, before this Court. 2. Briefly stated the facts of the case are that the plaintiffs have filed a suit for declaration, consequential relief of confirmation of possession and in the alternative for possession. The plaintiffs alleged that the landed property situated in muza Thunag/698, detailed in para Nos. 1 and 2 of the plaint, entered in the jamabandi for the year 1999-2000 was owned and possessed by Sh. Shahru Ram, who was husband of plaintiff No.1, and, father of plaintiffs No.2 and 3. The said Shahru Ram died on 19.8.2002. The plaintiffs claimed to have become the owner in possession of the suit land after the death of Shri Shahru Ram, being his first class legal heirs. The plaintiffs further alleged that after the death of Shahru Ram, the defendants had come up with a registered Will dated 3.7.2002, registered at serial No.195 with Sub- Registrar, Tehsil Sadar, District Mandi, H.P. allegedly executed in their favour by said Shahru Ram. According to the plaintiffs, the Will of 3.7.2002 was result of fraud, concoction, collusion and illegal on the grounds that (a) the Sub Registrar Mandi had no territorial jurisdiction to register the Will as the subject matter of the Will was within the jurisdiction of Sub Registrar Thunag; (b) Shahru Ram was an old man more than 70- years in age in July, 2002. He was seriously ill and on the pretext of treatment he was taken to Mandi by defendants No.1 an 2 where they dominated the Will of the deceased. According to the plaintiffs, Shahru Ram neither ever executed any Will nor he could execute any Will as he was in semiconscious state of mind due to illness on the alleged date of execution of Will. The plaintiffs further alleged that cause of action arose to file the present suit on 5.10.2002, when they came to know about the Will of 3.7.2002. 3. The plaintiffs further alleged that cause of action arose to file the present suit on 5.10.2002, when they came to know about the Will of 3.7.2002. 3. The defendants contested the suit and filed joint written statement, wherein, they have taken preliminary objections inter alia estoppel, cause of action, maintainability, etc. On merits, it was admitted that Shahru Ram was husband of plaintiff No.1 and father of plaintiffs No.2 and 3. It was also admitted that Shahru Ram was owner of the suit land and he died on 19.8.2002. The defendants alleged that Shahru Ram freely and voluntarily executed a Will of 3.7.2002 in respect of his property in their favour. According to the defendants the Will executed by the deceased in their favour was legal and valid. It was also alleged that the defendants rendered services to the deceased and the plaintiffs and they were managing and looking after the suit land even during thew life time of the deceased. Hence prayed for dismissal of the suit. 4. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the Will No.195 dated 3.7.2002 is a fraud, concocted, collusive and illegal, null and void, as alleged? OPP. 2. Whether the mutation No.311, dated 24.9.2002 is wrong, null and void? OPP. 3. Whether the plaintiffs are entitled for the relief of permanent prohibitory injunction, as prayed? OPP. 4. Whether the plaintiffs are entitled for a decree for possession of the suit land as prayed? OPP. 5. Whether the suit is not legally instituted and constituted? OPD. 6. Whether the plaintiffs have no cause of action and right to sue? OPD. 7. Whether the plaintiffs are estopped to file the present suit by their acts, conducts and deeds? OPD. 8. Whether the suit of the plaintiffs is time barred? OPD. 9. Whether plaintiffs have not complied the order dated 4.1.2005 qua payment of costs of Rs.500/- for filing the afresh suit? OPD. 10. Whether deceased Shahru Ram had freely and voluntarily executed the Will No. 195 dated 3.7.2002 qua the suit property and the Will is perfectly legal and valid one? OPD. 11. Relief. 5. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiffs/respondents herein. OPD. 10. Whether deceased Shahru Ram had freely and voluntarily executed the Will No. 195 dated 3.7.2002 qua the suit property and the Will is perfectly legal and valid one? OPD. 11. Relief. 5. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiffs/respondents herein. In an appeal, preferred there from, by the plaintiffs/respondents herein, before the learned First Appellate Court, the latter Court allowed the appeal, and, reversed the findings recorded by the learned trial Court. 6. Now the defendants/appellants herein, have instituted the instant Regular Second Appeal, before, this Court, wherein they assail 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 07.03.,2011 admitted the appeal instituted by the defendants/appellants, against, the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. Whether the learned First Appellate Court below has mis read, misinterpreted and misconstrued oral as well as the documentary evidence of the parties, especially the statement of DW-1 Karam Singh, DW-2 Jyoti Ram, DW-3 Yog Raj Sharma, DW-4, Sobha Ram, besides documents EX.DW1/A Will, mutation Ex.DW1/B, and copy of jamabandi Ex.DW1/C, which has materially prejudiced the case of the appellants? 2. Whether exclusion of the legal heirs from the property by the executant is a suspicious circumstance of the Will? 3. Whether taking of part by one of the beneficiary of the Will is also a suspicious circumstance of the Will in question? 4. Whether giving of movable property by the executant to the beneficiaries of the Will is a suspicious circumstance of the Will? 5. Whether registration of the Will in another Tehsil other then where the property is situated is also a suspicious circumstance of the Will in question? Substantial questions of Law No.1 to5: 7. The deceased testator, one Shahru, under a registered testamentary disposition, borne in Ex.DW1/A, hence bequeathed his estate, vis-a-vis, the defendants. 5. Whether registration of the Will in another Tehsil other then where the property is situated is also a suspicious circumstance of the Will in question? Substantial questions of Law No.1 to5: 7. The deceased testator, one Shahru, under a registered testamentary disposition, borne in Ex.DW1/A, hence bequeathed his estate, vis-a-vis, the defendants. The learned trial Court, on, an appreciation, of, the testifications, rendered by the propounder, and, by the scribe thereof, besides by the identifier, of, the deceased testator, and, by the marginal witness thereto, (a) all whereof made open voicings, qua, the recitals borne, in, Ex.DW1/A, being scribed, at the instance of the deceased testator, and, after contents thereof being read over, and, explained to him, his appending, his thumb impressions thereon, in the presence, of, the apt marginal witnesses thereto, (b) and, in the presence, of, his identifier, (c) and, thereafter in the presence, of, the deceased testator, the apt marginal witness thereof, and, the identifier of the deceased testator also appending their respective signatures thereon, (d) hence, thereafter, proceeded to rather conclude qua thereupon, the, peremptory statutory parameters, borne in Section 63 of the Indian Succession Act, being meted, the, fullest compliance, and, also proceeded to impute sanctity, visa- vis, valid execution, of, Ex.DW1/A, besides also rendered unflinching findings qua Ex.DW1/A being proven, to be, validly, and, duly executed, by the deceased testator. 8. The aforesaid inferences, drawn by the learned trial Court, do warrant meteings, of, validations thereof, (a) imperatively with the photograph, of, the deceased testator, stand borne upon EX.DW1/A, (b)and, after its proven complete execution, it, thereafter being taken, to, the, Sub Registrar concerned, where before, too, the marginal witnesses thereto, one, Sobha Ram, and, the identifier of the deceased testator, in the presence, of, the Sub Registrar Concerned, hence proceeded to append their respective signatures thereon, (c) besides the Registering Officer concerned, visibly, as embodied therein, made thereon an apt endorsement, hence displaying qua his reading over, and, explaining the contents thereof, to the deceased testator, and, where underneath, the, authentic thumb impressions, of, the deceased testator also occur. The validity of the apt endorsement, is not, concerted to be belittled by the plaintiffs, by theirs making apt strivings, to lead into, the, witness box the Sub Registrar concerned, (d) rather when the identifier, of, the deceased testator, and, the marginal witnesses, vis-a-vis, Ex.DW1/A, also at the stage contemporaneous, to its presentation, for registration before the Sub Registrar concerned, evidently hence appended their respective signatures thereon, (e) AND with no apt suggestion being meted to each, qua the apt endorsement, rather suffering from any aura of falsity, (f) thereupon, utmost vigour, is, to be imputed qua the factum, of, Ex.DW1/A being cogently proven to be validly and duly executed. In addition, it is to be concluded qua it being volitionally executed, by the deceased testator, and, with his at the relevant time, rather also holding, the, apt compos mentis, and, also qua the witnesses thereto lending proof, vis-a-vis, their apt animus attestendi. 9. However, the learned First Appellate Court, rather irrevered the sanctity, of, the apt findings recorded, by the learned trial Court, on, anvil of want, of, explications, being rendered by the propounder, vis-a-vis, the purported suspicious circumstances, hence, surrounding the execution of the Will, (a) comprised in the deceased testator hence excluding his natural heirs, (b) his proceeding to ensure the registration of Ex.DW1/A, at, the Sub Registrar's Office, located at Mandi, whereas, the Sub Registrar Office also existed at Thunag, and, the latter was located in the closest proximity, vis-a-vis, the homestead, of, the deceased testator. (c) One, of, the apt propounders evidently playing an active part in the execution, and, registration of the Will, (d) and, the deceased testator rather choosing, the, attesting witnesses, from, a village, other than, whereto he belonged, and, hence, concluded qua the execution of Ex.DW1/A, being not proven to be validly and duly executed. 10. The afore conclusions, drawn by the learned First Appellate Court, hence, for reversing the decree, rather dismissing the plaintiffs' suit, are grossly infirm, (a) given the learned First Appellate Court inaptly benumbing and underwhelming, the, preponderant paramount evidence, concurrently testified by the afore referred defendants' witnesses, wherefrom, unflinching proof rather emerges, vis-a-vis, the valid and due execution, of, Ex.DW1/A. by its executant. The learned First Appellate Court in concluding, that, the defendant, being, a jus alinee or a stranger, to, the family of the deceased testator, and, it further concluding, hence, a pervasive stain, rather ingraining Ex.DW1/B, has, visibly committed an apparent gross fallacy, (b) given, the plaintiffs rather rearing pleadings qua the defendants not being jus alinees, pleadings whereof operates, as, estoppel, against, the plaintiffs, rather to, claim that the defendants are either jus alienees or strangers to the family of the deceased testator, (c) nor, it was tenable, for, the learned First Appellate Court, on the aforesaid purported anvil, to rather conclude that Ex. DW1/A, is hence ridden with a deep aura of suspicion, (d) ensuing sequel whereof, is, qua when the very purpose, of, execution, of, a testamentary disposition, is to disinherit, hence, certain natural heirs, or to exclude them from inheritance, (e) thereupon, the mere factum, of, the natural heirs of the deceased testator standing excluded by him, and, his making a bequest, vis-a-vis, the defendants, cannot be either, a, valid or a genuine, reason, for concluding qua it either constituting any suspicious circumstance, nor, hence any explication thereto was enjoined to be meted, by the defendants. 11. 11. The factum, of, the participation, of, one of the propounders, in, the execution of Ex.DW1/A, also cannot be construed to be a suspicious circumstance, as, the testifications, of, the defendants' witnesses, and, the proven apt afore endorsements, made on Ex.DW1/A, by the registering officer, where underneath, the deceased testator, has, appended his thumb impression, (a) contrarily begets, an inference qua it being volitionally executed, by the deceased testator, and, with his at the relevant time, rather holding the apt compos mentis, (b) besides when the plaintiff No.1 has admitted qua her husband, on returning from Mandi, his intimating her qua his executing a testamentary disposition, (i) thereupon, it has to be concluded with vigour, qua the further purported vitiatory effects, appertaining to Ex.DW1/A, being purportedly not proven to be validly and duly executed, and, as sparked, from, the deceased testator, proceeding to Mandi, than, to Thunag, for it getting registered, especially when at the latter place, the Sub Registrar's office, is, available, rather also concomitantly getting subsumed, (ii) more so, when evidence has emerged, qua, in the deceased testator hence proceeding to Mandi, his intending to also get himself medically treated, (iii) besides, comprised in the factum of the deceased testator, rather choosing apt marginal witnesses, from, a village other than whereto he belonged, also, concomitantly rather stand hence effaced. 12. The above discussion, unfolds, that the conclusions as arrived by the learned first Appellate Court being not based, upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court has excluded germane, and, apposite material from consideration. Accordingly, the substantial questions of law are answered in favour of the appellants/defendants, and, against the respondents/plaintiffs. 13. In view of the above discussion, the instant Regular Second Appeal is allowed. In sequel, the judgment and decree rendered by the learned First Appellate Court, upon, Civil Appeal No. 33/2009 is set aside, whereas, the judgment and decree rendered by the learned Civil Judge (Jr. Division) Chachoit at Gohar, upon, Civil Suit No. 51/2005 is affirmed and maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs.