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2018 DIGILAW 318 (HP)

Bhupinder Singh v. Gola Devi

2018-03-13

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. By way of the present appeal, the appellant has challenged the judgment passed by the Court of learned District Judge, Kullu, in Civil Appeal No.60 of 2004, dated 18.6.2005, vide which, the learned lower Appellate Court, has affirmed the judgment and decree passed by the learned Civil Judge (Senior Division), Lahaul & Spiti at Kullu, in Civil Suit No.20 of 1999, dated 3.6.2004. 2. Material facts necessary for adjudication of this Regular Second Appeal are that plaintiff/respondent (hereinafter referred to as ‘plaintiff’) maintained a suit for declaration against the defendant/appellant (hereinafter referred to as ‘defendant’) alleging that plaintiff-Shauni Devi, is owner-in-possession of land comprised in Khata No.671, Khatauni No.1258, Khasra Nos.1468, 1452, 1469, 1507, 1467, 1599 and 5096, kita 7, measuring 20-7-0 bighas and 1/6th share measuring 1-1-7 bighas, out of land comprised in Khata No.672, Khatauni No.1259, Khasra No.1466, measuring 6-10-0 bighas, situated in Phati Nathan, Kothi Naggar, Tehsil and District Kullu, (H.P) (hereinafter referred to as ‘suit land’) and on the basis of last Will dated 16.12.1976 executed by her husband, Chande Ram, as a result of which, mutation No.4194 and 4174 in favour of the defendants are illegal and void. As per the plaintiff, Shauni Devi, was legally wedded wife of Chande Ram and Gola Devi, was her daughter. At the very outset, the pedigree table of Chande Ram, is as under : PEDIGREE TABLE Chande Ram Nanki Devi (1st wife dead) (plaintiff) Shauni Devi (2nd wife now dead) Mine Ram (defendant No.1) Mohar Singh (dead) Gola Devi Him Dassi (defendant No.2) Surinder Singh (defendant No.6) Karan Singh (defendant No.3) Virender Singh (defendant No.4) Devender Singh (defendant No.5) Defendant No.1-Mine Ram and Mohar Singh husband of defendant No.2 and father of defendants No.3 to 6, were sons of Chande Ram, from his earlier wife, namely, Nanki Devi, who had died long back before the marriage of Shauni Devi-plaintiff with Chande Ram. Gola Devi, was married during the life time of Chande Ram and after her marriage, she is residing in the house of her husband, Moti Ram. Chande Ram, during his life on 16.12.1976 executed Will in favour of Shauni Devi-plaintiff, defendant No.1 and Mohar Singh. Chande Ram, bequeathed all his cash in favour of defendant No.1 and Mohar Singh, in equal share and rest of the movable and immovable property including the suit land and abadi land etc. Chande Ram, during his life on 16.12.1976 executed Will in favour of Shauni Devi-plaintiff, defendant No.1 and Mohar Singh. Chande Ram, bequeathed all his cash in favour of defendant No.1 and Mohar Singh, in equal share and rest of the movable and immovable property including the suit land and abadi land etc. were bequeathed in favour of the plaintiff, defendant No.1 and Mohar Singh in equal share. After the death of Chande Ram, the suit property was inherited by the plaintiff- Shauni Devi, defendant No.1 and Mohar Singh in equal share, as a result of which, plaintiff became owner-in-possession of the suit land to the extent of 1/3rd share. Plaintiff-Shauni Devi being legally wedded wife of Chande Ram, had pre-existing right of maintenance out of the suit land and by virtue of the alleged Will 1/3rd share was bequeathed by Chande Ram in favour of the plaintiff-Shauni Devi in recognition of her pre-existing right of maintenance. Plaintiff-Shauni Devi was an illiterate, simpleton and rustic village lady and defendant No.1 and his brother Mohar Singh, after the death of Chande Ram, disclosed that mutation, has been attested and sanctioned on the basis of last Will dated 16.12.1976 in their names as well in the name of Shauni Devi. Mohar Singh, died on 26.6.1992 and has been succeeded by defendants No.2 to 6. Defendants No.1 to 6 in the first week of November, 1998 threatened to dispossess the plaintiff from her 1/3rd share in the suit land proclaimed that plaintiff had no right, title or interest in the suit land. On the basis of said proclamation, she made enquiries from Patwari concerned and came to know that mutation has not been entered and attested on the basis of last Will dated 16.12.1976, but the same has been wrongly and illegally attested in favour of defendant No.1 and Mohar Singh to the exclusion of plaintiff-Shauni Devi, on the basis of unregistered Will, dated 17.11.1991, purportedly to have been executed by Chande Ram in favour of defendant No.1 and Mohar Singh. The alleged Will is a forged and fabricated document. The same has been fabricated by defendant No.1 and Mohar Singh, after the death of Chande Ram, in connivance with the scribe and marginal witnesses with an ulterior motive to grab her (plaintiff’s) share in the suit land. Mutation No.4194, which has been sanctioned on the basis of alleged Will, is illegal and inoperative. The same has been fabricated by defendant No.1 and Mohar Singh, after the death of Chande Ram, in connivance with the scribe and marginal witnesses with an ulterior motive to grab her (plaintiff’s) share in the suit land. Mutation No.4194, which has been sanctioned on the basis of alleged Will, is illegal and inoperative. 3. Defendants No.1 to 6 filed their joint written statement by raising preliminary objections qua limitation, estoppel, maintainability and valuation. On merits, plaintiff is admitted, as widow of late Chande Ram. The factum of execution of Will dated 16.12.1976 by Chande Ram, is also admitted. It is pleaded that plaintiff being second wife of Chande Ram and step mother of the defendants was not interested in the defendant to get their share out of estate left by their father Chande Ram. The Will dated 16.12.1976, is the result of undue influence. Chande Ram was not happy with the acts and conduct of plaintiff, as she used to forced him to deprive the defendants of his estate. Chande Ram, deposited Rs.76000/- in State Bank of India, Katrain Branch and an amount of Rs.14,000/- in Post Office Larankelo, in the name of plaintiff in lieu of her maintenance. Defendant No.1 Mine Ram and Mohar Singh, predecessor-in-interest of defendants No.2 to 6 used to serve their father Chande Ram and in lieu of such services rendered by them, Chande Ram, out of his free volition executed his last Will dated 17.11.1991 by revoking earlier Will dated 16.12.1976. Defendant No.1 Mine Ram and Mohar Singh were burdened with maintenance of Rs.200/- to the plaintiff. The mutation was rightly attested in their names, on the basis of last Will dated 17.11.1991 and as such, they are owner-in-possession of the suit land. 4. From the pleadings of parties, the learned trial Court framed following issues : “1. Whether the Will dated 16.12.1976 executed by deceased Chande Ram in favour of parties is last and valid Will of the deceased ? OPP. 2. Whether the deceased Chande Ram had executed a last and valid Will dated 17.11.1991 in favour of defendant No.1 and Shri Mohar Singh, the predecessor-in-interest of defendants No.2 to 6 ? OPD. 3. Whether the suit is within limitation ? OPP. 4. Whether the plaintiff is estopped by her act and conduct from filing the present suit ? OPD. 5. Whether suit is not maintainable ? OPD. 6. OPD. 3. Whether the suit is within limitation ? OPP. 4. Whether the plaintiff is estopped by her act and conduct from filing the present suit ? OPD. 5. Whether suit is not maintainable ? OPD. 6. Whether suit is not properly valued for the purpose of Court fee and jurisdiction ? OPD. 7. Relief”. 5. The learned trial Court after deciding Issues No.1, 2 in negative, Issue No.3 in affirmative, Issues No.4 & 5 in negative, Issue No.6 not pressed, decreed the suit. 6. Feeling aggrieved thereby the defendants maintained first appeal before the learned District Judge, Kullu, assailing the findings of learned Trial Court below being against the law and without appreciating the evidence and pleading of the parties to its true perspective. The learned lower Appellate Court affirmed the findings of the learned Court below. Now, the appellant has maintained the present Regular Second Appeal, which was admitted for hearing on 27.4.2006 on the following substantial questions of law: “1. Whether the suit was barred by time when instituted ? 2. Whether the “suspicious circumstances” noticed by the Courts below are real and, if so, do they make the execution of the Will, Ex.DW4/A, doubtful?” 7. Learned counsel appearing on behalf of the appellant has argued that the judgment and decree passed by the learned Trial Court on 3.6.2004 and defendant No.1-Mine Ram, died on 2.6.2004 and as per the Grounds of Appeal taken in the Regular Second Appeal, the appeal is required to be remanded back to the learned Trial Court to decide this question. On the other hand, learned counsel for the respondent has argued that there is no need to remand the present Regular Second Appeal. 8. I have considered the entire record carefully. The arguments before the learned Trial Court in the present case was heard on 29.5.2004 and thereafter, the judgment was reserved and it was listed for judgment on 1.6.2004, however the judgment could not be pronounced on 1.6.2004 and the same was pronounced on 3.6.2004. As far as the death of the party, during the pendency of case is concerned, the legal representatives are required to be brought on record, but there is a specific exception, provided under Order 22 Rule 6 of the Code of Civil Procedure, which is reproduced as under: “6. As far as the death of the party, during the pendency of case is concerned, the legal representatives are required to be brought on record, but there is a specific exception, provided under Order 22 Rule 6 of the Code of Civil Procedure, which is reproduced as under: “6. No abatement by reason of death after hearing- Notwithstanding anything contained in the foregoing rules, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment, but judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if had been pronounced before the death took place.” The clear reading of this Rule shows that if the death took place in between the time, arguments were heard and judgment to be pronounced, the same will have the same force and effect, as if it had been pronounced before the death took place. In view of the clear provision, as contained in the Code of Civil Procedure, there is no need to go further, so this Court holds that death of Mine Ram-defendant No.1, on 2.6.2004 has no effect and it will be presumed that the judgment and decree passed by the learned Trial Court before the death of Mine Ram-defendant No.1 took place. 9. Learned counsel appearing on behalf of the appellant has now argued that the learned Trial Court has no occasion to discard the Will, as it was set out by the defendant, as the defendant has proved on record the Will in accordance with law, which was in their favour. He has further argued that the judgment and decree passed by the learned Trial Court and the findings so recorded by the learned lower Appellate Court against the appellant are required to be set aside. On the other hand, learned counsel appearing on behalf of the respondent has vehemently argued that there were two Wills and the earlier Will was a registered Will, which was executed in favour of three persons and the Will of defendants is unregistered Will, which infact has been prepared after the death of the executant, as it is unregistered Will replacing the registered Will. Therefore, after the death of the executant, it is the defendant, who has placed the registered Will before the Revenue authorities for its mutation. However, the learned Courts below have not relied upon any of the Will and so, the Will, which was earlier registered, has also been set aside, which was in favour of the plaintiff and the plaintiff has not assailed the same before the learned lower Appellate Court. 10. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the record in detail. 11. At the very outset, the Will on which the defendants are relying is prepared, on a plain paper just few days before the death of executant because as per executant law has changed after the execution of the earlier Will and so, he is executing fresh Will. Now, this Will is required to be analyzed alongwith the facts. As far as the witnesses is concerned, the Will was handed over to the defendant and act of the defendant in not producing the Will, after the death of executant before the Revenue authorities and producing the earlier registered Will, which was in favour of the plaintiff shows that second Will was prepared by the defendants after the death of executant. Thereafter, the defendant producing unregistered Will, which was later in time, the Will in dispute prepared on a plain paper and the same is unregistered Will. Chande Ram was having two wives and the plaintiff- Shauni Devi, is second wife and her daughter and the defendants are offerings his wife Nanki Devi. PW-2-Ved Parkash, proved on record Ex.PW2/A and Ex.PW2/B, copies of rapat No.466, dated 19.7.1992 and rapat No.150, dated 30.12.1991, respectively, which shows that both Will (s) were produced by the defendant before the Revenue authorities, earlier they produced the registered Will and thereafter unregistered Will, which was only in their favour, which creates a serious doubt regarding unregistered Will, which was later in time and so, the same seems to be prepared after the death of executant and the same Will is inexistence earlier, the defendant have produced the Will only before the Revenue authorities and not the registered Will, which was in their favour plaintiff ‘s also. Defendant No.1-Mine Ram, appeared as DW-7, deposed that Chande Ram was his father. Defendant No.1-Mine Ram, appeared as DW-7, deposed that Chande Ram was his father. The unregistered Will dated 17.11.1991 was executed by Chande Ram in the presence of marginal witnesses, namely, Bhawani Singh and Jai Chand. Such Will was scribed by Baldev Krishan, on the behest of Chande Ram. After writing the Will, the same was read over to the testator. Chande Ram admitted its contents to be correct and signed the same in the presence of witnesses, who signed the Will in the presence of executant. In his cross-examination, he has admitted that plaintiff-Shauni Devi and Chande Ram, lived together till the death of the latter. He denied that the Will Ex.DW4/A, has been prepared by them after the demise of Chande Ram. He does not know Mohar Singh had lodged a report with the Patwari with respect to the Will. Mine Ram (DW-7) produced the Will before the Patwari one week after the death of Chande Ram. He denied that the Will Ex.DW4/A has been fabricated by them with a view to usurp the share of the plaintiff. Ex.DW4/A, is the original unregistered Will dated 17.11.1991 allegedly executed by Chande Ram in favour of his sons. It was scribed by Baldev Krishan (DW-4) whereas Jai Chand (DW-5) is one of its marginal witnesses. DW-5, Jai Chand, after the Will was written, Chande Ram, handed over to his son Mohar Singh. He admitted that the plaintiff resided with Chande Ram till his end and served him. He admitted that the plaintiff and her daughter were not present at the time of attestation of mutation. The Will was written much earlier to the death of Chande Ram. DW-6, Chuni Singh, deposed that when the mutation on the basis of Will was sanctioned, the plaintiff and her daughter were present. However, they did not raise any objection in his presence. In his cross-examination, he has stated that the learned counsel of both the parties were also present at the time of mutation. There is no denial of the fact that a registered Will was executed way back in the year 1976 by Chande Ram in favour of his wife and sons i.e. defendant No.1 and Mohar Singh. The alleged Will came into existence just three days prior to the death of Chande Ram. There is no denial of the fact that a registered Will was executed way back in the year 1976 by Chande Ram in favour of his wife and sons i.e. defendant No.1 and Mohar Singh. The alleged Will came into existence just three days prior to the death of Chande Ram. There was no reason or occasion for the deceased to cancel a long standing registered earlier Will and execute an unregistered Will to supersede the same. It has come in evidence that Shauni Devi-plaintiff resided with Chande Ram and rendered the services till his end. Therefore, there was no reason for the deceased to ignore the plaintiff particularly when she was living with him and serving him. DW-4, Baldev Krishan, scribe of the alleged Will stated that Dambu Ram son of Mohar Singh, had come to call him for writing the Will. Further, DW-5- Jai Chand, during his cross-examination stated that after the Will Ex.DW4/A was written, it was handed over by Chande Ram to his son Mohar Singh. Ex.PW2/B, copy of rapat No.150, dated 30.12.1991, discloses that Mohar Singh went to the Halqua Patwari and produced registered Will dated 16.12.1976 before him for entering the mutation. Accordingly, mutation No.4194 was entered. This report was lodged by Mohar Singh after the alleged Will dated 17.11.1991 had seen the light of the day. If Chande Ram, infact executed the Will Ex.DW4/A and delivered it to his son Mohar Singh, then why the latter did not divulge the said fact before the Patwari at the time of lodging the report Ex.PW2/B. The Will Ex.DW4/A has been prepared by the defendants after his (Chande Ram’s) death. DW-4 Baldev Krishan, scribe has admitted that spacing between signature of Chande Ram and words “Basiyat Karta” is larger, but refuted that the signature of deceased were already there on the paper. He has refuted that the signature of Chande Ram were obtained earlier than the writing of said paper. He has admitted that there is no vacant space between writing and signature of witness. If the Will Ex.DW4/A is perused, it definitely points out unnecessary and unexplained spacing between writing “Basiyat Karta” and signature of testator appended thereon, due to which, it could not be ruled out that signatures were obtained on a blank paper. He has admitted that there is no vacant space between writing and signature of witness. If the Will Ex.DW4/A is perused, it definitely points out unnecessary and unexplained spacing between writing “Basiyat Karta” and signature of testator appended thereon, due to which, it could not be ruled out that signatures were obtained on a blank paper. The mutation No.4194, Ex.DA, came to be entered on the basis of Will dated 16.12.1976 and consequent rapat Ex.PW2/B, but the said mutation came to be attested and sanctioned on 10.12.1992 at place Laran Kelo, defendant No.1 produced unregistered Will dated 17.11.1991. The presence of Shauni Devi-plaintiff and her daughter Gola Devi has also been recorded. Chuni Lal, Numberdar, Jai Chand (DW-5) and Bhawani Dutt, have also been present. Mine Ram, produced unregistered Will dated 17.11.1991. Shauni Devi-plaintiff and Gola Devi raised objection and termed unregistered Will Ex.DW4/A, as illegal and forged one. DW-6 Chuni Lal, Numberdar, who was marked present in mutation Ex.DA, while appeared, as a witness has deposed that at the time of attestation of mutation on the basis of Will Shauni Devi and Gola Devi were present there, but they did not raise any objection. The said version of DW-6, is clearly against the recital made in mutation Ex.DA, which is relied upon by none else, but by the defendants and the recital made in the order Ex.DA by the learned Assistant Collector 2nd Grade, Kullu, renders the testimony of DW-6, as untruthful. Even, he has admitted that Chander Mohan Thakur, learned counsel, was present there on behalf of Shauni Devi-plaintiff. Similarly, DW-5 Jai Chand one of the attesting witness, who is also shown to be present at the time of attestation of mutation Ex.DA, in his cross-examination has stated that mutation was attested and sanctioned in his presence. He has admitted that Shauni Devi was also present at the time of attestation and sanction of mutation and also admitted that daughter of Shauni Devi was also present at the time of attestation and sanction of mutation, but they did not raise any objection to the attestation of mutation. In mutation Ex.DA, shows that DW-4 Baldev Krishan, was also present on the spot at the time of attestation of mutation, but when he appeared as DW-4, he has not testified as such. DW-7, in his cross-examination has refuted that Will Ex.DW4/A is forged one. In mutation Ex.DA, shows that DW-4 Baldev Krishan, was also present on the spot at the time of attestation of mutation, but when he appeared as DW-4, he has not testified as such. DW-7, in his cross-examination has refuted that Will Ex.DW4/A is forged one. He has stated that Will Ex.DW4/A was handed over by him to Patwari in the year 1991. The said fact is falsified by the entries made in rapat rojnamcha Ex.PW2/A and mutation Ex.DA. Had the said Will been produced by the defendant No.1 before Patwari in the year 1991, definitely rapat in rojnamcha would have been made in the same year, but rapat rojnamcha Ex.PW2/A was made on 19.7.1992 and on the basis of said rapat unregistered Will Ex.DW4/A was produced by defendant No.1 on 19.7.1992. The said facts leading to attestation and sanction of mutation and unexplained late production of Will Ex.DW4/A is one more suspicious circumstances, which shrouds the genuineness and due execution of Will and propounder of the Will i.e. defendants have failed to explain the same. The alleged Will Ex.DW4/A is stated to have been executed on 17.11.1991. Chande Ram, died on 20.11.1991 i.e. after short time from the date of execution of the alleged Will. DW- 5, Jai Chand, has stated that Chande Ram was ill. The registered Will was executed on 16.12.1976. There is no evidence on record to show that his relation with Shauni Devi was strained, but to the contrary it has come in evidence that she was also maintaining deceased Chande Ram. The registered Will was not revoked by him for a period of about sixteen years and he never thought in terms of revoking the same till three days prior to his death. Shauni Devi, original plaintiff was the second wife of deceased Chande Ram and she resided with him. The said reason to debar her is not plausible and reasonable. As per condition of alleged Will Ex.DW4/A, the defendants were required to make payment of Rs.200/- each per month to Shauni Devi. Shauni Devi, original plaintiff was the second wife of deceased Chande Ram and she resided with him. The said reason to debar her is not plausible and reasonable. As per condition of alleged Will Ex.DW4/A, the defendants were required to make payment of Rs.200/- each per month to Shauni Devi. The defendants have produced in evidence money order receipts Mark A to Mark F and money order form Ex.DW2/A to Ex.DW2/F. All money orders of Rs.600/- each are shown to have been sent on the same date i.e. on 15.6.1993 i.e. after the attestation of mutation Ex.DA and the dispute arose between the parties, which clearly shows malafide on behalf of the defendants that they wanted to pretend that were complying with the terms and conditions, as mentioned in Ex.DW4/A, but it cannot be ruled out in view of the said facts that the alleged Will Ex.DW4/A was manipulated by them after the death of Chande Ram and the said circumstances surrounds the due and proper execution of Will in question. The inheritance cannot be kept in abeyance. Neither due execution of Will Ex.PW3/A nor of Will Ex.DW4/A by Chande Ram has been proved, hence he would be deemed to have died intestate and the learned Trial Court has rightly held that his legal heirs would succeed to his estate in view of the intestate succession. Till the death of Chande Ram, he was owner-in- possession of the suit land and property. He died on 20.11.1991. The suit has been maintained on 6.1.1999. Nothing could be shown on behalf of the defendants, as to how the suit is barred by limitation. As far as the registered Will is concerned, original Will was not brought on record nor there was any secondary evidence led. So, the findings recorded by the learned Trial Court regarding not believing the same cannot be said to be perverse. At the same point of time, the findings recorded by the learned Trial Court regarding the Will Ex.DW4/A, the same cannot be a genuine document and the same is forged one, as per the evidence, which has come on record. So, the findings recorded by the learned Trial Court regarding not believing the same cannot be said to be perverse. At the same point of time, the findings recorded by the learned Trial Court regarding the Will Ex.DW4/A, the same cannot be a genuine document and the same is forged one, as per the evidence, which has come on record. Accordingly, substantial question of law No.1, as framed by this Court, is answered holding that the Will was assailed at the earliest, as discussed hereinabove, when the defendants started asserting their exclusive right on the suit land and the plaintiff came to know about the forged act of the defendants immediately she maintained the suit, so the suit is within limitation and the suit cannot be termed as time barred. The suspicious circumstances noticed by the learned Courts below are real one and Will Ex.DW4/A, is a forged and fabricated document prepared after the death of executant and so, substantial question of law No.2, is answered accordingly. Both the learned Courts below have correctly appreciated the oral as well as documentary evidence led by the parties and there is no need to interfere with the well reasoned judgments and decrees passed by both the learned Courts below. 12. In view of the above discussion, the appeal of the appellant is without merit, deserves dismissal and is accordingly dismissed. In the peculiar facts and circumstances of the case, parties are left to bear their own costs. Pending applications, if any, shall also stands disposed of.