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2018 DIGILAW 973 (HP)

Tol Dassi v. Nathi

2018-05-23

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present regular second appeal is maintained by the appellant against the judgment and decree dated 19.01.2007, passed by the learned District Judge, Kullu, H.P., in Civil Appeal No.46 of 2006, whereby the learned Appellate Court has affirmed the judgment and decree dated 31.5.2006, passed by the Civil Judge (Sr. Division), Lahaul & Spiti at Kullu, H.P., in Civil Suit No.68 of 2004, with the prayer to set aside the impugned judgment and decree passed by the learned Court below. 2. The brief facts giving rise to the present appeal are that the plaintiffs/respondents (hereinafter to be called as “the plaintiffs”) maintained a suit that late Shri Thakur Chand son of Shri Shyam Sukh, who was predecessor-in-interest of the plaintiffs, was the owner in possession of land and houses, which have been described in para-1 of the plaint (hereinafter to be referred as the suit property). It has been alleged that Thakur Chand was initially married with one Smt. Katki and out of their wedlock, Smt. Nathi (plaintiff No.1 )was born and then said Smt. Katki died and after her death, Thakur Chand got married with one Smt. Ishru (plaintiff No.8). Out of their wedlock, one son, namely Tot Ram and one daughter Aati Devi (plaintiff No.5) were born. It has been alleged that aforesaid Tot Ram pre-deceased Shri Thakur Chand, who expired on 22.3.1999 leaving behind his two sons, namely Sudershan Kumar and Surender Kumar (plaintiffs No.2 and 3) and his wife Smt. Baru (plaintiff No.4). It has been alleged that Shri Thakur Chand, predecessor-in-interest of the plaintiffs again married with Smt. Dassi and out of their wedlock, one son, namely Jyoti (plaintiff No.6) and one daughter namely Lalita (plaintiff No.7) were born and after the birth of the plaintiffs No.6, and 7, said Smt. Dassi contracted second marriage during the life time of Shri Thakur Chand. Shri Thakur Chand, during his life time had been residing with his sons, namely Shri Tot Ram and Shri Jyoti Singh and after the death of Shri Tot Ram, he lived with his grand-sons, namely Sudershan Kumar and Surender Kumar and son Jyoti Singh (plaintiffs No.2,3 and 6), who rendered their services to Shri Thakur Chand and managed his agricultural affairs during his life time and besides this, his daughter, namely Nathi (plaintiff No.1), Smt. Aati (plaintiff No.5), Smt. Lalita (plaintiff No.7) and widow of predeceased son of Sh. Tot Ram also rendered services to Sh. Thakur Chand during his life time and he had great love and affection towards the plaintiffs. It has been alleged that defendant No.1 and proforma-defendants No.2 and 3 are quite strangers having no nexus and relation in any manner with said Thakur Chand. It has been alleged that Shri Thakur Chand never contracted any marriage with defendant No.1 and proforma-defendants No.2 and 3 are not at all daughter of said Thakur Chand. Shri Thakur Chand died on 08.11.2003, leaving behind the plaintiffs, as his sole and exclusive legal heirs and after his death, they have inherited the suit property, as co-owners, in equal shares and they are in peaceful ownership and possession of the same. It has been averred that defendant No.1 in connivance with the revenue officials got mutation No.1656, dated 07.6.2004 qua the suit land entered on the basis of some forged and fictitious Will, dated 30.10.2000, which has been wrongly and illegally attested by the Revenue Officer and the mutation being wrong and illegal is null and void and the plaintiffs are not bound by the same. It has been averred that the plaintiffs are also not bound by wrong and illegal entries showing defendant No.1 as owner-in-possession of the suit land. Defendant No.1 was asked time and again to admit the claim of the plaintiffs, however, defendant No.1 did not listen at all and she has totally refused to admit the claim of the plaintiffs. 3. The defendants filed written statement and took preliminary objections to the effect that the plaintiffs are not in possession of the suit property and the suit for declaration is not maintainable and that the suit is not maintainable for want of Court fee. 3. The defendants filed written statement and took preliminary objections to the effect that the plaintiffs are not in possession of the suit property and the suit for declaration is not maintainable and that the suit is not maintainable for want of Court fee. Further that the learned Court below has no jurisdiction to entertain and try the suit and the suit in the present form is not maintainable. On merits, it has been admitted that the land, as mentioned in sub-paras (1), (ii) and (iii) of the plaint was owned by Shri Thakur Chand. However, it has been submitted that Smt. Dassi abandoned Jyoti Singh at the house of Shri Thakur Chand and contracted second marriage and at that time, Shri Jyoti Singh was of tender age and defendant No.1, brought him up like her own son. It has been averred that Shri Thakur Chand deceased was not residing with Shri Tot Ram and Shri Jyoti Singh and he never resided with his grand-sons, namely Sudershan Kumar and Surender Kumar. In fact Shri Thakur Chand married defendant No.1, during the year 1973-74 and out of this wedlock, two daughters, namely Maya and Pushpa (proforma-defendants) were born to them. It has been averred that late Shri Thakur Chand executed a legal and valid Will, dated 06.10.2000, which was registered on 30.10.2000 and as per the said Will, the entire estate of Shri Thakur Chand has been inherited by defendant No.1 and she is the absolute owner in possession of the entire estate. It has been stated that mutation No.1656, dated 07.06.2004 has rightly been sanctioned in favour of defendant No.1. 4. On the pleadings of the parties, the trial Court framed the following issues : “1. Whether the plaintiffs are the joint owners in possession of the suit land, as alleged? … OPP 2. Whether the plaintiffs are entitled to the prohibitory injunction as prayed for? … OPP 3. Whether mutation No.1656 is wrong and illegal, as alleged ? …OPP 4. Whether the plaintiffs have a cause of action? … OPP 5. Whether the suit is not maintainable in the present form? … OPD 6. Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction? … OPD 7. Whether this Court has no jurisdiction to hear and decide the present suit? … OPD 8. Whether late Sh. … OPP 5. Whether the suit is not maintainable in the present form? … OPD 6. Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction? … OPD 7. Whether this Court has no jurisdiction to hear and decide the present suit? … OPD 8. Whether late Sh. Thakur Chand executed a valid Will dated 06.10.2000 (registered on 30.10.2000) in favour of the defendant No.1 as alleged. If so, its effect? … OPD 9. Relief.” 5. The learned trial Court decided Issue No.1 partly in favour of the plaintiffs. Issues No.2, 3 and 4 in favour of the plaintiffs and Issues No.5 to 8 against the defendants and decreed the suit partly. 6. The defendants maintained the appeal in the learned lower Appellate Court, which was dismissed. Hence, the present regular second appeal, which was admitted on 17.5.2007, on the following substantial question of law:- “1. Whether the findings of the court below are perverse, based on misreading of oral and documentary evidence and wrong assumptions from the facts proved on record particularly the due execution of the Will Ext.DW-2/A? 2. Whether in the facts and circumstances of the case Shri Devi Chand in whose presence the Will was executed and he was also attesting witness of the Will and merely because he described as identifier to the due execution of the Will could be treated as a witness to the Will under Section 63 of the Indian Succession Act? 3. Whether alleged suspicious circumstances attached to the execution of the Will were rebutted and defendant legally inherit the estate of Thakur Dass? 4. Whether decree for injunction could be passed against the appellant when admittedly the appellant was found to be co-owner and in possession of the property?” 7. I have heard the learned counsel for the parties and have also gone through the record. 8. Learned counsel for the appellants has argued that the judgment and decree passed by the learned Trial Court is without appreciating the facts, which have come on record and also taking into consideration the fact that the Will was proved and it is the defendants, who were beneficiaries under the Will. 8. Learned counsel for the appellants has argued that the judgment and decree passed by the learned Trial Court is without appreciating the facts, which have come on record and also taking into consideration the fact that the Will was proved and it is the defendants, who were beneficiaries under the Will. He has also argued that it is the defendants, who served Thakur Chand during his old age and Thakur Chand has also rightly made the Will in favour of the defendants, as the son of the Thakur Chand has not served him in his old age. 9. On the other hand, the learned counsel appearing for respondents No.1 to 8 has argued that the Will is not proved on record as none of the marginal witnesses were produced to prove the Will. 10. In rebuttal the learned counsel for the appellant has argued that one of the witnesses has appeared in the witness box to prove the Will. 11. To appreciate the arguments of the learned counsel for the parties, I have gone through the record of the case, in detail. 12. To prove the execution and attestation of the Will, the propounder of the Will is required to atleast examine one of the attesting witness, as per the provisions contained in the Indian Succession Act and the Will, as per Section 63 of the Indian Succession Act, is required to be attested by atleast two witnesses. The mode of proof of the Will has been prescribed under Section 68 of the Indian Evidence Act, which lays down that the Will can be proved by examining one of the attesting witnesses, who is alive and subject to the process of the Court. The propounder of the Will is not only required to prove the due execution and attestation of Will, but he is also required to dispel all reasons suspicions surrounding the Will. So, in this context, a reference can also be made to an authority of the Hon’ble Supreme Court in the case of H. Vekatchala Iyengar versus B.N. Thimma Jamma and others, AIR 1959 SC 443 . 13. To prove the Will, the defendants have produced DW-2 Sh. Chhering and DW-3, Sh. Devi Chand to prove the due execution and attestation of Will, dated 06.10.2000 (Ex.DW-2/B). DW-2, Sh. 13. To prove the Will, the defendants have produced DW-2 Sh. Chhering and DW-3, Sh. Devi Chand to prove the due execution and attestation of Will, dated 06.10.2000 (Ex.DW-2/B). DW-2, Sh. Chhering was Document Writer at Kullu, who in his affidavit, Ex.DW-2/A, has deposed that Will, Ex.DW-2/B, was scribed by him at the instance of deceased Shri Thakur Chand and the same was read over and explained by him to the testator, who after admitting the contents, put his signatures on the same in the presence of the witnesses. 14. DW-3, Devi Chand has stated that Will, dated 06.10.2000 was executed by deceased Thakur Chand in his presence and in the presence of Jindu Ram and Hari Sain and that he put his signatures on the same in the presence of the witnesses and that thereafter the witnesses also put their signatures on the Will in the presence of the testator. 15. On perusal of the Will, Ex.DW-2/B, it seems that DW-3, Devi Chand has not signed the Will, as an attesting witness, but as an identifier. On the other hand, this Will was attested by Shri Jindu Ram and Hari Sain, who have not been produced by the defendants. DW-3, Devi Chand, who, in his statement has claimed himself to be one of the attesting witnesses, has not explained as to why he had put his signatures on the Will only as an identifier and not as identifier as well as an attesting witness. In his cross-examination, he has admitted that he is facing a trial for preparing a forged document. Therefore, this witness appears to have somewhat dubious past. So, in these circumstances, the version deposed by him with regard to attestation of the Will in question by him does not inspire full confidence. The defendants have not produced Jindu Ram and Hari Sain, who had signed Will, Ext.DW-2/B, as attesting witnesses. It has been stated that Jindu Ram had died prior to the recording of evidence in this case. However, he could not produce any material to show that Jindu Ram had died prior to the recording of evidence in this case. Even if it is assumed that said Jindu Ram had died prior to the recording of evidence, in that event also, the defendants have not explained as to why they did not produce Hari Sain, who was other attesting witness of the Will. Even if it is assumed that said Jindu Ram had died prior to the recording of evidence, in that event also, the defendants have not explained as to why they did not produce Hari Sain, who was other attesting witness of the Will. Therefore, in the absence of the evidence of atleast one of the attesting witnesses of the Will, the defendants have failed to prove the execution and attestation of the Will in the manner, as envisaged under Section 68 of Indian Evidence Act. 16. The first suspicious circumstance surrounding this Will is that the recitals contained in this Will are not true. This will recites that the testator had only one son Jyoti (plaintiff No.6) and four daughters namely, Smt. Nathi (plaintiff No.1), Smt. Maya (proforma-defendant No.2), Smt. Atti (plaintiff No.5) and Smt. Pushpa (proforma-defendant No.3). In the Will, in question, there is no reference of Sh. Tot Ram, the predeceased son of the testator and his widow and children (plaintiffs No.2 to 4) and daughter Smt. Lalita (plaintiff No.7). It the testator who had executed the Will in the sound state of mind and out of his free will, there was no reason that he would not have made any mention about his predeceased son and his widow and children and also one of his daughter in the Will. Further, the defendants have not explained as to why the recitals contained in the Will do not reflect the true position about the natural heirs of the deceased-testator, which creates reasonable doubt against the genuineness of the Will. 17. The second suspicious circumstance surrounding the Will is its registration after three weeks of its execution. It has come on record that the Will, Ex.DW-2/A was executed on 06.10.2000. DW-3, Devi Chand has stated that the Will could not be registered on 06.10.2000, because it was already 5.30 p.m. and the office of the Sub-Registrar was closed by that time. However, DW-2, Chhering Ram, scribe of the Will has contradicted him on this point and stated that he started scribing the Will at 4.00 p.m. and furnished at 4.30 p.m. Thus, the version deposed by DW-3 that the Will was completed after office hours on 06.10.2000 and as such the same could not be registered on that day appears to be somewhat doubtful. Even if it is assumed that the Will, in question was completed after office hours on 06.10.2000, in that case, the same could have been registered on the next working day. The defendants have not explained as to why the deceased testator did not register this Will for three weeks after its execution. This is also nothing on record to show that the deceased testator was prevented by any sufficient cause to visit Kullu between 07.10.2000 to 30.10.2000. Thus, the registration of Will after three weeks of its execution is a circumstance, which creates reasonable doubt against the genuineness of the Will. 18. The another suspicious circumstance surrounding this Will is that the deceased testator had no valid reasons to disinherit his son Jyoti and widow and children of his predeceased son Tot Ram. The Will, Ex.DW-2/A recites that Jyoti was not obedient to the testator nor he was residing with him. However, these recitals stand falsified by the document placed on record by the defendants themselves. Ex.D-3 is a copy of Parivar Register maintained by Gram Panchayat, Bandrol. In this document, Sh. Jyoti alongwith his wife and children have been recorded in the family of deceased testator. PW-1, Jyoti has categorically stated that the deceased testator had great love and affection towards the plaintiffs. DW-1, Smt. Tol Dassi (defendant No.1) has also remained silent about the relationship between the plaintiffs and the deceased testator. Therefore, the deceased testator had no valid reason to disinherit his son Sh. Jyoti (plaintiff No.6). Similarly, he had no reason to disinherit the plaintiffs No.2 to 4, who are sons and widow of the predeceased son of the testator. There is nothing on record to show that these plaintiffs had some property or any other source of income sufficient to maintain themselves. So, in these facts and circumstances, it appears somewhat doubtful that the deceased testator would have disinherited the plaintiffs No.2 to 4 without making any provision for their livelihood. Thus, the bequest made by the deceased through Will, Ex.DW-2/B was unnatural and as such this cannot be held to be genuine. 19. The another suspicious circumstance is that defendant No.1 had played a prominent role in the execution of the Will. Thus, the bequest made by the deceased through Will, Ex.DW-2/B was unnatural and as such this cannot be held to be genuine. 19. The another suspicious circumstance is that defendant No.1 had played a prominent role in the execution of the Will. It has also come in the statement of DW-1, Chhering Ram, scribe of the Will that the testator was ill and he was brought to him by lifting him and at that time, his wife (defendant No.1) was also present alongwith him. Thus, the defendant No.1 had carried the deceased testator to Kullu for execution of Will in her favour. It has been stated that she was present on the spot at the time of execution of the Will. However, there is no independent witness of the will under challenge. DW-2 has admitted that he alongwith Jindu Ram and Devi Chand (DW-3) are facing a criminal trial for preparing a forged document. He has also admitted that Hari Sain daily witnesses two or three documents. So, the scribe and two out of the three witnesses of the Will are facing a criminal trial regarding preparation of a forged document and the third witness of the Will, namely Hari Sain is neither resident of the village of the testator nor related to him. Rather, he appears to be a professional witness, who is readily available at Kullu and witnesses two or three documents daily. Therefore, in these facts and circumstances, the presence of defendant No.1 on the spot at the time of execution of the Will, in question, raises strong suspicions against the genuineness of the Will especially when there is no independent and respectable witness of this will. 20. One more question arises for consideration is as to who are entitled to succeed to the estate of deceased Thakur Chand on the basis of his natural succession. There is also no dispute between the parties that plaintiffs No.1 to 7 are legal heirs and successors of deceased Thakur Chand. Smt. Ishru, plaintiff No.8 has also claimed herself to be heir of deceased Thakur Chand being his widow. However, she has not stepped into witness box to depose that at the time of death of Thakur Chand, she was his wife. On the other hand, PW-1, Jyoti Singh in his cross-examination, has admitted that Smt. Ishru had divorced Shri Thakur Chand. However, she has not stepped into witness box to depose that at the time of death of Thakur Chand, she was his wife. On the other hand, PW-1, Jyoti Singh in his cross-examination, has admitted that Smt. Ishru had divorced Shri Thakur Chand. Therefore, in view of the admission made by PW-1, in his cross-examination, Smt. Ishru (plaintiff No.8) is not proved to be widow of deceased Thakur Chand and as such she is not entitled to inherit to his estate. 21. In the present case a very heavy onus is placed on the plaintiffs to prove that defendant No.1 is not a widow of late Thakur Chand and defendants No.2 and 3 are not his daughters. However, the plaintiffs have not produced any cogent and clinching evidence to discharge this onus. The plaintiffs have only produced PW-1, Jyoti Singh, plaintiff No.5, who has stated that defendants No.1 to 3 have no relation with deceased Thakur Chand. However, the oral testimony of this witness is neither corroborated by any other oral as well as documentary evidence on record. On the other hand, DW-1, Tol Dassi (defendant No.1) has stated on oath that she was a legally wedded wife of deceased Thakur Chand and out of this wedlock, defendants No.2 and 3 were born to them. The oral testimony of DW-1 also find corroboration from the documentary evidence on record. Ex.D-2 is a copy of rapt No.104, dated 25.11.2003 recorded in Roznamcha Vakiati by Patwari, Patwar Circle Bandrol. On perusal, this document would reveal that Jyoti Singh (plaintiff No.5) had made report to the Halqua Patwari on 25.11.2003 that Thakur Chand had died on 08.11.2003 leaving behind plaintiffs No.1 to 7 and defendants No.1 to 3, as his legal heirs. This documents further reveal that plaintiff No.5 had admitted defendant No.1, as widow of deceased Thakur Chand and defendants No.2 and 3, as his daughters. On the basis of this rapat, Mutation No.1656 (Ex.D-1) was entered by the Patwari in which defendant No.1 has been mentioned as widow of deceased Thakur Chand and defendants No.2 and 3, as his daughters. The copy of Pariwar Register maintained by Gram Panchayat, Bandrol shows that defendant No.1 has been recorded as wife of Thakur Chand and defendants No.2 and 3 as his daughters. The copy of Pariwar Register maintained by Gram Panchayat, Bandrol shows that defendant No.1 has been recorded as wife of Thakur Chand and defendants No.2 and 3 as his daughters. Also, copy of voter list (Ex.D-4), pertaining to the year 2002, shows that defendant No.1 has been recorded as wife of Thakur Chand and defendant No.3 as his daughter. Date of birth certificate (Ex.D-5), which was issued by the Government Primary School, Bandrol reveals that defendant No.2 has been recorded as daughter of Thakur Chand. Thus, on the basis of the oral as well as documentary evidence produced by the defendants, it is duly proved on record that defendant No.1 is widow of late Thakur Chand and defendants No.2 and 3 are his daughters. Therefore, defendants No.1 to 3 are also entitled to succeed to the estate of deceased Thakur Chand alongwith plaintiffs No.1 to 7 on the basis of natural succession. 22. In view of aforesaid discussions, it is held that the Will dated 06.10.2000 (Ex.DW2/B), propounded by defendant No.1 is not proved to be legal and valid one of late Thakur Chand, consequently, mutation No.166 sanctioned on the strength of the aforesaid Will is also proved to be wrong, illegal, null and void and not binding against the rights of the plaintiffs. 23. Further, the plaintiffs have filed the suit for declaration that after the death of late Thakur Chand, they have inherited the suit land and are joint owners-in-possession of the same in equal shares. However, the learned trial Court in its findings has held that plaintiffs No.1 to 7 are proved to be joint owners-in-possession of the suit property alongwith defendants No.1 to 3 to the extent of their respective shares. However, it is pertinent to mention here that no cross appeal has been filed by the plaintiffs against the aforesaid findings returned by the learned Trial Court and during the course of arguments before the learned court below, it has been admitted by the learned counsel for the plaintiffs that he is not aggrieved by the aforesaid findings of the learned trial Court. 24. In view of the above conclusion and facts and circumstance of the case, the learned Courts below did not commit any error in partly decreeing the suit of the plaintiffs. Hence, the impugned judgment and decree passed by the learned trial Court are perfectly sustainable. 25. 24. In view of the above conclusion and facts and circumstance of the case, the learned Courts below did not commit any error in partly decreeing the suit of the plaintiffs. Hence, the impugned judgment and decree passed by the learned trial Court are perfectly sustainable. 25. Thus, for the above said reasons, as has been discussed hereinabove, Substantial Questions of Law as framed by this Court on 17.05.2007 are answered holding that as the Will is not proved, the findings of the Court below are as per law and after appreciating the evidence documentary as well as oral to its true perspective, so, the Substantial Question No.1 is answered accordingly. Substantial Question of Law No.2 is answered holding that Sh. Devi Chand was not a marginal witness, the learned Court below has rightly held that the Will is not proved as per law. As the Will is full of suspicious circumstances, which are not dispelled by the propounder, so, the findings of the learned Court below are as per law and the Substantial Question No.4 is answered accordingly. The plaintiff is co-owner alongwith the other legal heirs of Thakur Chand, so, the decree passed by the learned Court below is in accordance with law and the Substantial Question No.5 is answered accordingly. 26. In these circumstances, as discussed hereinabove, the appeal, which sans merit deserves dismissal and is accordingly dismissed. However, in the peculiar facts and circumstances of this case, there is no orders as to costs. 27. Pending application (s) if any, also stands disposed of.