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2018 DIGILAW 398 (HP)

Rajesh Kumar v. Ravinder Kumar

2018-03-19

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 besides for rendition in the alternative of a decree for possession qua the suit khasra number(s), was, hence partly decreed. 2. Briefly stated the facts of the case are that the suit was filed by one deceased Duni Chand and is being contested on his behalf by his next friends/heirs. The claim of the plaintiff is that the land comprised in Khata No. 24, Khatauni No. 50, Khasra Nos. 1111, 1112, 1113 and 1114, plot 4, area measuring 0-04-12 hectares, situated at Mohal Mant Khas, Mauza Mant, Teh. Dharamshala, District Kangra is owned and possessed by the plaintiff. The plaintiff has also sought declaration that he is owner in possession and the will dated 24. 11. 19888 allegedly executed in favour of defendant Rajesh by deceased Kirpa Ram, father of the plaintiff is not a genuine Will but is the outcome of fraud, misrepresentation since Kirpa Ram was not in fit state of mind to execute a Will nor it was ever executed by him. The mutation attested on the basis of Will is also claimed to be invalid having provided not rights to the defendant. It has also been prayed that the decree for injunction be also issued against the defendant from interfering over the suit land in any manner. In the alternative prayer for decree of possession has been made. Kirpa Ram is stated to be the last male holder of the property and after his death, it is claimed to have been devolved upon the plaintiff to the exclusion of all. It is claimed that the defendant has got mutation attested on the basis of forged Will. 3. The defendant contested the suit and filed written statement, wherein, he has taken preliminary objections inter alia limitation, estoppel, cause of action, locus standi, maintainability, valuation, non joinder etc. On merits, it has been submitted that the suit land was owned and possessed by Kirpa Ram and the plaintiff to the extent of half share each. The allegations made by the plaintiff are absolutely wrong. After the death of Kirpa Ram, there is a testamentary disposition of his estate by way of Will dated 24. On merits, it has been submitted that the suit land was owned and possessed by Kirpa Ram and the plaintiff to the extent of half share each. The allegations made by the plaintiff are absolutely wrong. After the death of Kirpa Ram, there is a testamentary disposition of his estate by way of Will dated 24. 11. 1988 which was duly registered and as such the defendant has become owner in possession and no rights are left with the plaintiff qua the share of Kirpa Ram. It has also been submitted that deceased Kirpa Ram had conducted two marriages and one of his wife was Achhari, who gave birth to the plaintiff. The second wife was named Smt. Suni Devi, who provided a daughter and son, Daya Parkash and Ranjba Devi. Defendant No. 1 is the son of Daya Parkash one of the sons of deceased Kirpa Ram, i. e. grand son of deceased Kirpa Ram. The information has been withheld by the plaintiff from the court since the defendant was rendering services to deceased Kirpa Ram, who was aged about 80 years at the time of his death. He out of love and affection executed the Will in favour of the defendant. The plaintiff never looked after the deceased Kirpa Ram, during his life time when he was not well. It is stated that Kirpa Ram was never confined to bed nor Will has been executed under mis-representation or fraud and the mutation has rightly been attested The property having devolved upon the defendant by way of Will, the plaintiff has got no cause of action and locus standi to file the suit. 4. The plaintiffs filed replication to the written statement of the defendant(s), wherein, they 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 owner in possession of the suit land, as alleged?OPP. 2. Whether Kirpa Ram did execute any valid Will in favour of the defendant? OPD 3. If issue No. 2, is proved against the defendant, whether the Will dated 24. 11. 1988 is the result of misrepresentation and fraud, as alleged? OPP 4. Whether the suit is time barred?OPD. 5. 2. Whether Kirpa Ram did execute any valid Will in favour of the defendant? OPD 3. If issue No. 2, is proved against the defendant, whether the Will dated 24. 11. 1988 is the result of misrepresentation and fraud, as alleged? OPP 4. Whether the suit is time barred?OPD. 5. Whether the suit is bad for non joinder of necessary parties, as alleged?OPD. 6. Whether the plaintiff is estopped from filing this suit by his act and conduct? OPD. 7. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court partly decreed the suit of the plaintiffs/respondents herein. In an appeal, preferred therefrom by the defendant/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 defendant/appellant herein, has instituted the instant Regular Second Appeal, before, this Court, wherein he 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 9. 5. 2007, admitted the appeal instituted by the defendant/appellant against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. Whether there has been misreading of evidence by the Courts below in regard to the validity of the Will? 2. Whether the Courts below have committed gross error of law and jurisdiction in not dismissing the suit which was bad for non joinder of necessary parties i. e. natural heirs of the executant? Substantial questions of Law No. 1 to 2: 8. The defendant, relied upon a registered Will executed vis-a-vis him by the deceased testator, for his hence staking an exclusive claim to the suit property. The registered testamentary disposition of the deceased, testator, is borne in EX. DW2/A. For establishing the trite factum, of Ex. PW2/A being proven to be validly and duly executed by the deceased testator, all the ingredients occurring, in the provisions of Section 63 of the Indian Succession Act, were, necessarily enjoined to proven. The provisions of Section 63 of the Indian Succession Act, read as under:- "63 Execution of unprivileged Wills. DW2/A. For establishing the trite factum, of Ex. PW2/A being proven to be validly and duly executed by the deceased testator, all the ingredients occurring, in the provisions of Section 63 of the Indian Succession Act, were, necessarily enjoined to proven. The provisions of Section 63 of the Indian Succession Act, read as under:- "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. (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. " Succinctly, for Ex. DW2/A being formidably proven, to be validly and duly executed by its author, evidence was enjoined to upsurge qua (a) of the deceased testator scribing his signatures thereon, (b) the appending of his signatures thereon, occurring in the presence of the marginal witnesses thereto, latter whereof subsequent, to the appending of the signatures by the deceased testator, upon Ex. DW2/A, also proceeding to, in the presence of the deceased testator also scribe their thumb marks or signatures thereon. 9. In proof of the aforesaid statutory tenets, one of the marginal witness to Ex. DW2/A, also proceeding to, in the presence of the deceased testator also scribe their thumb marks or signatures thereon. 9. In proof of the aforesaid statutory tenets, one of the marginal witness to Ex. DW2/A, namely, Vijay Paul stepped into the witness box as DW-2, and, testified of one Beni Prasad, at the behest of, and, at the instance of the deceased testator, drafting the apposite Will, (a)whereafter, on its, contents being readover and explained, to deceased testator Kirpa Ram, and, on his accepting them to be truthful, Kirpa Ram proceeding to, in the presence of both the witnesses thereto, append his signatures thereon, (b) whereafter, he and the other witness thereto also appending their signatures thereon, conspicuously in the presence of the deceased testator. He has, in his examination-in-chief, continued to testify, of Will borne in Ex. DW2/A, being thereafter presented, for registration before the Sub Registrar concerned, whereat also all the contents thereof, were, readover and explained to him, by the Sub Registrar concerned, (c) and, upon the deceased testator thereat admitting the correctness, of, recitals borne therein (d), of hence, the Sub Registrar, making, his endorsement comprised in Ex. DW2/B. Lastly, he has in his testification, occurring in his examination-in-chief, also echoed, qua at the relevant time of execution of the Will, of, the deceased testator, being in a sound disposing state of mind. The afore rendered testification of one, of, the marginal witness, to Ex. DW2/A, brings forth cogent evidence, in satisfaction, of the trite principle of (a) the deceased testator appending his signatures, in the, presence of the marginal witnesses thereto, (b) marginal witnesses, to Ex. DW2/A thereafter proceeding, to, in the presence of the deceased testator, appending their signatures thereon, obviously, hence Ex. DW2/A is construable to be proven to be validly and duly executed. 10. Furthermore, with DW-2 also proving the making, of an endorsement, comprised in Ex. DW2/B, occurring in Ex. DW2/A, by the Sub Registrar concerned, (a) endorsement whereof is testified to be made therein only subsequent to all contents thereof being readover, and, explained to the deceased testator, (b) and, also his ensuring, of all, recitals borne in Ex. DW2/A being comprehended by the deceased testator, (c) conspicuously also when DW-2 testifies, of, in his presence besides in presence of other marginal witness, to Ex. DW2/A being comprehended by the deceased testator, (c) conspicuously also when DW-2 testifies, of, in his presence besides in presence of other marginal witness, to Ex. DW2/A, the deceased testator admitting the truthfulness of all the recitals borne therein, (d) thereupon, with the potent proof standing adduced, with respect to the authenticity of endorsement, comprised in Ex. DW2/B, occurring, in Ex. DW2/A, (e) thereupon the aforesaid endorsement enjoys a presumption of truth. However, the presumption of truth, enjoyed by Ex. DW2/B occurring in Ex. DW2/A, was displaceable, by cogent evidence, yet for dislodging the presumption, of truth, hence acquired by an endorsement, borne in Ex. DW2/B, occurring on Ex. DW2/A, no cogent evidence stood adduced, hence it acquires conclusivity. (f) Even though, the plaintiffs, could by striving, to ensure the stepping into witness box, of Sub Registrar concerned, and, by putting apposite suggestions to him, could shred, the efficacy of the aforesaid presumption, (g) also in case, the Sub Registrar concerned, even though summoned, as plaintiff''s witness, yet omitted to in his examination-inchief support the plaintiffs'' version, the plaintiffs'' counsel could yet make an endeavour, to ensure his being declared hostile, whereafter, the plaintiff''s counsel could, put apposite suggestion(s), to him, for hence eroding the tenacity, of the endorsement borne in Ex. DW2/B, occurring in Ex. DW2/A. However, the plaintiff omitted to make the aforesaid endeavour, wherefrom, an inevitable inference ensues, of the presumption of truth enjoyed by the endorsement borne in Ex. DW2/B, (h) especially for want of cogent evidence in rebuttal thereto being adduced, by the plaintiff, hence acquiring an aura of conclusivity. In sequel, it has to be concluded that the testamentary disposition borne in Ex. DW2/A, being proven to be validly and duly executed also it is to be concluded, that the testification of DW-2, qua the deceased testator, at the time of execution, of Ex. DW2/A being in a sound disposing state of mind also acquiring immense vigour. More so, reinforcingly, with a valid endorsement borne in Ex. DW2/B, being per se personificatory, of the deceased testator being hence in possession, of enlivened cognitive faculties, especially, when for want thereof, the Sub Registrar concerned, would omit to record an endorsement in Ex. DW2/B, occurring in Ex. Ex. DW2/A. 11. Be that as it may, even if, compelling proof, is adduced by the propounder of Ex. DW2/B, being per se personificatory, of the deceased testator being hence in possession, of enlivened cognitive faculties, especially, when for want thereof, the Sub Registrar concerned, would omit to record an endorsement in Ex. DW2/B, occurring in Ex. Ex. DW2/A. 11. Be that as it may, even if, compelling proof, is adduced by the propounder of Ex. DW2/A, in proof of its valid and due execution, yet certain suspicious circumstances, surrounding the execution of the Will, were hence espoused by the plaintiff. Consequently, it was also incumbent upon the defendant, to dehors, his adducing cogent proof qua valid and due execution, of Ex. DW2/A, to, also remove the taints of suspicion, surrounding the execution of Ex. DW2/A. Both the learned Courts below had dwelt, upon, the exclusion, of all legal heirs, from inheritance by the deceased testator, to be rather constituting a potent suspicious circumstance. However, the aforesaid omissions, existing, in the testamentary disposition of deceased, was not construable to be a suspicious circumstance, as it is settled in a catena of decisions rendered by the Hon''ble Apex Court, that, the exclusion from inheritance, of all the natural heirs, by the deceased testator, being not construable, to be a suspicious circumstance, (a)emphatically, when the purpose of making a testamentary disposition, is for making the apposite exclusion(s). 12. Furthermore, even if, assumingly the beneficiary(ies), of the testamentary disposition actively participated, in the preparation of, and, in the execution, of the apposite Will, yet the aforesaid factum also does not constitute, any suspicious circumstance, hence, surrounding its execution, given, the Hon''ble Apex Court, in a case titled as Pentakota Satyanarayana and others vs. Pentakota Seetharatnam and others , 2005 8 SCC 67, the relevant paragraph No. 25 whereof stands extracted hereinafter:- "25. It is settled by a catena of decisions that any and every circumstance is not a suspicious circumstance. Even in a case where active participation and execution of the Will by the propounders/beneficiaries was there, it has been held that that by itself is not sufficient to create any doubt either about the testamentary capacity or the genuineness of the Will. It has been held that the mere presence of the beneficiary at the time of execution would not prove that the beneficiary had taken prominent part in the execution of the Will. It has been held that the mere presence of the beneficiary at the time of execution would not prove that the beneficiary had taken prominent part in the execution of the Will. This is the view taken by this Court in Sridevi & Ors vs. Jayaraja Shetty & Ors , 2005 2 SCC 784 . In the said case, it has been held that the onus to prove the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will proof of testamentary capacity and the proof of signature of the testator as required by law not be sufficient to discharge the onus. In case, the person attesting the Will alleges undue influence, fraud or coercion, the onus will be on him to prove the same and that as to what suspicious circumstances which have to be judged in the facts and circumstances of each particular case. " (p. 84-85) (a) dispelling the effect(s) of the active participation, of the beneficiary, in preparation of, and, in the execution of Will, and also, recording a firm mandate that per se thereupon, it being not permissible to be inferable of, hence, any undue influence being exercised by them, upon, the volition of the deceased testator. (b) Even otherwise, any purported aura(s) of fictitiousness or forgery(ies) rather imbuing the execution, of Ex. DW2/A by its author, were required to proven by the plaintiffs, by theirs firmly establishing, by adducing apposite cogent evidence of Ex. DW2/A not carrying the authentic signatures, of the deceased testator besides were enjoined to establish, of the endorsement, borne in Ex. DW2/B occurring in Ex. DW2/A, being not free from any suspicion, (c) whereas, for reasons aforestated, with the plaintiff omitting, to dislodge the presumption of truth enjoyed by Ex. DW2/B, occurring in Ex. DW2/A, (d) whereupon, when hence with Ex. DW2/A, rather acquiring, an aura of conclusivity, thereupon, it is grossly impermissible to rear any inference of Ex. DW2/A, being a sequel of undue influence or coercion being exerted by the beneficiary upon the deceased testator, (d) even, if, he played any active participation in the preparation or execution thereof. Apart from the above, the learned Courts below, had, on anvil of non occurrence of the name, of one of the legal heirs of the deceased testator, in the apposite testamentary disposition, borne in Ex. Apart from the above, the learned Courts below, had, on anvil of non occurrence of the name, of one of the legal heirs of the deceased testator, in the apposite testamentary disposition, borne in Ex. DW2/A, especially of one Duni Chand, made conclusion, of execution of Ex. DW2/A being surrounded by suspicious circumstance, hence, merely thereupon, discountenanced the probative vigour, of the testification of DW-2, a marginal witness to Ex. DW2/A also overlooked, the probative sanctity, of endorsement borne in Ex. DW2/B, occurring in Ex. DW2/A. The aforesaid discarding(s) of the testification of DW-2, in proof of valid and due execution, of Ex. DW2/A, and overlooking(s) by both the learned Courts below, of the probative worth, of endorsement, borne in Ex. DW2/B occurring in Ex. DW2/A, was highly inappropriate, (e) more so, when in a verdict recorded by the Court in a case titled as Deep Ram and others vs. Laxmi Chand and others , 2000 1 ShimLC 240 , it has been firmly concluded, of, it not being an essential sine qua non, for hence the testamentary disposition, acquiring a mantle of sanctity, of its imperatively, containing the details of all legal heirs. Both the learned Courts below had concluded that with Ex. DW-2 rendering service, as PA in the office of Deputy Commissioner concerned, hence, his appending his signatures thereon, as a marginal witness, rather sparking a suspicious circumstance. However, the ascription, of a suspicious circumstance vis-a-vis appending of signatures by Vijay Paul, upon Ex. DW2/A, is grossly untenable, given his firmly deposing, of the apposite Will being executed, within, the precincts, of, Office of District Collector, and, his also deposing that his taking a short leave of two hours, for ensuring the execution, and, registration of Ex. DW2/A. The aforesaid testification of DW-2, remains uneroded, of, its tenacity, especially for want of any rebuttal evidence, thereto, being adduced. Since DW-2''s testification, is not concerted to be imbued with any taint of his colluding or conniving with the beneficiaries thereof, thereupon, the mere factum of his serving as a PA, in the Office of District Collector concerned, can never be construable to be a suspicious circumstance, surrounding the execution of Ex. DW2/A. 13. As aforestated, with this Court, ascribing, the utmost legal sanctity, to endorsement borne in Ex. DW2/B occurring in Ex. DW2/A. 13. As aforestated, with this Court, ascribing, the utmost legal sanctity, to endorsement borne in Ex. DW2/B occurring in Ex. DW2/A, occurrence whereof, was a sequel of the Sub Registrar, ensuring, of the deceased testator, being possessed of enlivened cognitive faculties, (a) assurance whereof, emanated on his securing the apposite evincings, from the deceased testator, upon Ex. DW2/A, being presented for registration before him, (b) thereupon, the mere fact, that, during the course of the day, the deceased testator, especially preceding his proceeding, to the office of Sub Registrar concerned, his going to hospital, (c) whereat, some tests were conducted, would not signify, of his not being in a sound mental health or his not possessing enlivened cognitive faculties, (d) unless, the validity of endorsement borne in Ex. DW2/B, occurring in Ex. DW2/A, was eroded. However, with no cogent evidence being adduced, for challenging the validity of the endorsement borne in Ex. DW2/B, occurring in Ex. DW2/A, (e) thereupon, the aforesaid factum, was not rearable as a suspicious circumstance, surrounding the valid and due execution, of testamentary disposition, borne in Ex. DW2/A. 14. 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 respondents/plaintiffs. 15. In view of the above discussion, the present Regular Second Appeal is allowed. In sequel, the judgements 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.