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2018 DIGILAW 2020 (HP)

Dharam Pal v. Sukh Ram

2018-11-20

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. The instant appeal is directed, against, the concurrently recorded verdicts by both the learned Courts below, whereby, the plaintiff's suit for rendition, of, a decree for declaration, as well as for, rendition of a decree for permanent prohibitory injunction qua the suit khasra numbers, was, hence decreed. 2. Briefly stated the facts of the case are that the plaintiff had filed the suit for declaration on the averments that he is owner in possession of land measuring 5-13 bighas, out of total land measuring 61-19 bighas, comprised in kita 22, khata/khatoni No.40/51-52, situate din Village Karloti, Pargana Sunhani, Tehsil Ghumarwin, District Bilaspur, H.P., as also, permanent prohibitory injunction was sought against the defendants on the averments that land measuring 31.0 bighas, i.e. ½ share of the land, measuring 61.19 bighas, comprised in kita 22, khata/khatoni NO. 40/51-52, situated in village Karloti, Pargana Sunhani, Tehsil Ghumarwin, District Bilaspur, H.P. is ancestral property of the plaintiff and defendants No.1 to 4, and, their father. It has been pleaded that it has come to him from his father Shri Sant Ram, and brothers S/Sh. Dehru and Dina Nath. The plaintiff had got right by birth in the ancestral property and he was owner in possession of 1/6th share in the land to the extent of 5.4 bighas. Shri Santu Ram, the father of the plaintiff had 1/6th share in the said land and the plaintiff and defendants No.1 to 10 have inherited the same. The plaintiff is owner in possession of land measuring 9 biswas out of the share of his father, Shri Santu Ram. The plaintiff, as such, is owner in possession of total land measuring 5.13 bighas. The defendants No.1 to 5 have got the mutation attested in their name on the basis of false and forged Will of late Shri Santu Ram. The father of the plaintiff had not executed any Will and Will, if any, was false, wrong and fabricated. Shri Santu Ram died on 21.5.1986, and, he was ill for the last 15-20 days before his death and remained seriously ill for 6-7 days prior to his death and was not in a fit state of mind during this period. The father of the plaintiff had affection for the plaintiff and there was no reason to execute the Will. Shri Santu Ram died on 21.5.1986, and, he was ill for the last 15-20 days before his death and remained seriously ill for 6-7 days prior to his death and was not in a fit state of mind during this period. The father of the plaintiff had affection for the plaintiff and there was no reason to execute the Will. The plaintiff performed the Kriya Karam etc., on the death of his father and used to pay money for his maintenance. Shri Santu Ram was also not competent to execute any will regarding land more than his share and the Will in excess of his share was illegal, null and void. The plaintiff came to know of the mutation during the year 1991 and defendants did not admit his claim. Hence the suit. 3. The defendants No.1 to 5 contested the suit and filed written statement, wherein, they have averred that Shri Santu Ram was full owner of the suit land. Shri Santu had executed a valid Will in favour of defendants No.1 to 5, and, they had also served him in old age. Shri Santu Ram was in full senses at the time of execution of Will. The plaintiff had separated himself, during the life time of his father and had also obtained Nautor on this ground. The plaintiff was not paying any amount towards the family expenses to the late father though he was serving in Army. The plaintiff annoyed his father due to his behaviour. The mutation was attested in the presence of public and wife of the plaintiff and they never objected to the same. The plaintiff had not got any interest in the suit property. 4. The plaintiff filed replication to the written statement of the defendants, 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 plaintiff is entitled for the relief of declaration and permanent prohibitory injunction, as prayed? OPP. 1-A. Whether the defendants are owners in possession of the suit land by virtue of Will executed by late Sh. Santu, as alleged? OPD. 2. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiffs/respondents herein. OPP. 1-A. Whether the defendants are owners in possession of the suit land by virtue of Will executed by late Sh. Santu, as alleged? OPD. 2. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiffs/respondents herein. In an appeal, as well as cross objections, respectively preferred therefrom, by the defendants/appellants, as well as, by the plaintiff/respondent herein before the learned First Appellate Court, the latter Court after framing the hereinafter extracted additional issues, hence dismissed the appeal, as well as, the cross-objections, and, affirmed the findings recorded by the learned trial Court:- “1-B. Whether the suit land is ancestral joint Hindu Family Property? OPP 1-C Whether the plaintiff is owner in possession of the suit land being coparcener as alleged?” 7. 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 13th October, 2008, 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 in the absence of issues findings can be given by the learned trial Court to the effect that the suit land is joint Hindu Family co-parcenary property? 2. Whether finding regarding validity of Will exhibit DW2/A can be given in the absence of specific issue in that behalf? Substantial questions of Law No.1 to 2: 8. The plaintiffs had cast a challenge, vis-a-vis, the validity of execution, of, a registered testamentary disposition, by one Santu. The defendants for staking claim to the suit property, they propounded the afore testamentory disposition, borne in Ex.DW2/A. Issue No.1- A which stands extracted hereinafter, does obviously, on its bare perusal, impinge upon, the validity of the espousal of the defendants, squarely rested, upon, the afore Ex.DW2/A, for theirs hence, ousting the plaintiff's endeavour, in, seeking a declaratory decree qua it being set aside, and, also his/theirs rather seeking rendition of a decree, for, permanent prohibitory injunction, vis-a-vis, the suit land. Issue No.1-A reads as under:- “1-A. Whether the defendants are owners in possession of the suit land by virtue of Will executed by late Sh. Santu, as alleged? Issue No.1-A reads as under:- “1-A. Whether the defendants are owners in possession of the suit land by virtue of Will executed by late Sh. Santu, as alleged? OPD.” The widest amplitude, and, the width of the afore issue, does obviously encompass there-within, both (i) the valid and due execution of the afore Will hence by its executor, (ii) besides also encompasses, whether he had the apt capacity to execute it, on the ground of it, partaking or not hence any characteristics of the property recited, in, the afore registered testamentary disposition, hence being construable to be ancestral coparcenary property. Consequently, the concurrent findings rendered by both the learned courts below, on, anvil, of, reflections borne in mutations respectively borne in Ex.P-6, to Ex. P-8 rather unfolding qua the suit property borne in Ex.DW2/A, not partaking any traits and characteristics of it being construable, to be, ancestral co-parcenary property, are both tenable and apt findings, (ii) and, thereupon, the deceased testator also held a valid capacity, to make a testamentary disposition, vis-a-vis, the suit property, borne in Ex.DW2/A, dehors, no specific issue in respect thereof, being struck by the learned trial Court. 9. The factum of valid, and, due execution of Ex.DW2/A, was, enjoined to be proven, by adduction of potent evidence, hence, satiating the statutory parameters, as, enshrined Section 63 of the Indian Succession Act, provisions whereof stand extracted hereinafter :- “63 Execution of unprivileged Wills. —Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 12 [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:— (a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.” (I) whereunder, it is incumbent, upon, the propounder to lead into the witness box, any, of the marginal witnesses thereto, and, the latter making candid bespeaking qua the deceased testator hence making his thumb marks or signatures thereon, in his/their presence, and, thereafter his/theirs also doing likewise in the presence, of, the deceased testator. In the propounder, hence adducing the afore proof qua hence satiation being meted, vis-avis, the afore statutory parameters, has placed dependence, upon, the testimony of the scribe of Ex.DW2/A, as also, upon, the testifications rendered respectively by both the marginal witness thereof, who respectively stepped into the witness box, as DW-4, and, as DW-5. A close reading of the testifications, respectively rendered by the afore, unfolds that all the afore apt trite statutory parameters, standing respectively hence echoed by them, in, their respectively rendered testifications. Both the learned Courts below, rather dispelled the vigour of the efficacy of the afore rendered testifications, as made, by the afore marginal witnesses, on the ground (a) that on the day subsequent thereto, the deceased testator rather expiring; (b) there occurring discrepancies inter se the testifications hence respectively rendered by DW-2, DW-3, DW-4, and, by DW- 5 qua the time, of, its scribing in the evening, (c) and qua the scribing, of the Will being made in ball point, and, only the signatures scribed thereon by the deceased testator, as also, by the witnesses thereto, hence occurring in green pen. The afore reared suspicions, remained unpleaded, in the plaint, excepting the one with respect to the demise, of, the deceased testator rather occurring a day subsequent, to, the registration of EX.DW2/A. Even if, the afore reared suspicious circumstances by both the learned Courts below, for hence theirs dispelling, the, efficacy of the afore rendered testifications, of, the afore witnesses, hence were permissibly suo moto rearable, by them, yet with the endorsement, made, by the Sub Registrar concerned, on Ex.DW2/A, (i) rather carrying clear recitals therein qua the contents of the Ex.DW2/A, standing read over, and, explained to the deceased testator, whereunderneath, the signatures of the deceased testator, and, the signature of the Sub Registrar concerned, hence, also occur, (ii) besides whereafter, an, endorsement is also embodied, in Ex.DW2/A qua one Balbir Singh, the identifier of the deceased testator before the Sub Registrar concerned, hence identifying thereafter, the, deceased testator, whereunder, also the signatures of both the afore Balbir Singh, and, of the deceased testator rather also exist, (iii) hence engenders, a, conclusion qua the propounders rather cogently proving the factum, of, the deceased testator, recording his presence, before the Sub Registrar, a day prior to his demise, besides Ex.DW2/A holding the authentic signatures, of, the deceased testator, (iv) hence despite his expiring a day subsequent thereto, his mental cognitive faculties being awakened, and, alive at the time of execution and registration of EX.DW2/A, and, obviously his holding at the relevant time, the, requisite compos mentis. 10. In aftermath, the afore reared inference subsumes, the, effects of the both the learned Courts, below suo motto, sparking, suspicions, on the afore grounds, vis-a-vis, the valid execution of Ex.DW2/A. Be that as it may, even if some befitting legal heirs, of, the deceased testator stood disinherited, yet when the mere factum of disinheritance, of, the befitting legal heirs, of deceased testator, is, not a suspicious circumstance, rather comprises, the, solemn salutary purpose, of, execution of atestamentary disposition, hence, the mere exclusion of the some of the legal heirs of the deceased testator, is, bereft, of, any stain of any suspicion. 11. The above discussion, unfolds, that the conclusions as arrived by the learned first Appellate Court as also by the learned trial Court, being not based, upon a proper and mature appreciation of evidence on record. 11. The above discussion, unfolds, that the conclusions as arrived by the learned first Appellate Court as also by the learned trial Court, being not 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 trial Court, have excluded germane and apposite material from consideration. Accordingly, the substantial questions of law are answered in favour of the appellant/defendant and against the respondent/plaintiff. 12. In view of the above discussion, the present Regular Second Appeal is allowed. In sequel, the judgments and decrees rendered by both the learned Courts below are set aside, and, the suit of the plaintiff is dismissed. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs.