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Himachal Pradesh High Court · body

2019 DIGILAW 1143 (HP)

Prem Lal v. Ram Lal

2019-08-13

SURESHWAR THAKUR

body2019
JUDGMENT : SURESHWAR THAKUR, J. 1. The instant appeal, stands directed, by the appellant herein, against, the concurrently recorded verdicts rendered by both the learned courts below, wherethrough, the plaintiffs' suit for rendition, of, the espoused decree for declaration, along with consequential relief, of, permanent prohibitory injunction, vis-a-vis, the suit khasra number, and, against the defendant, hence, stood decreed. The aggrieved therefrom defendant has through the instant appeal, strived, to beget reversal of the verdicts concurrently pronounced against him. 2. Briefly stated the facts of the case are that the one Smt. Suharu, wd/o Sh. Musaddi was owner in possession of the land as detailed in para No.1 of the plaint. The case of the plaintiff is that said Smt. Suharu had executed a registered Will dated 24.6.1994 in his favour and by virtue of this Will he has become owner in possession of the suit land. But the revenue authorities have wrongly ignored the Will executed by deceased Smt. Suharu in his favour and sanctioned mutation No.408 dated 30.5.1998 in favour of the defendant without proof of Will alleged to have been executed in favour of the defendant. According to him, he along with his family members had been serving and maintaining the deceased since the year 1993-94 till her death on 31.1.1998. The defendant being close neighbour of the deceased also used to come to her house in the presence of the plaintiff to extend his sympathy towards deceased. The deceased was seriously ill since May, 1997, and, her condition had become worse in the month of July, 1997 and thereafter she could not recover from the disease. When the wife of the plaintiff had gone to Shimla to meet the plaintiff who is in Govt. service, she kept the deceased under the care of the defendant, who was in good terms with the plaintiff. On return from Shimla, the wife of the plaintiff found that the condition of the deceased was more serious. The defendant told her that he had taken the deceased to Arki in Doli for treatment as her condition was not good. Thereafter the plaintiff and his wife attended, served and maintained the deceased and also spent thousands of rupees to repair her house and improve her barren land. The defendant told her that he had taken the deceased to Arki in Doli for treatment as her condition was not good. Thereafter the plaintiff and his wife attended, served and maintained the deceased and also spent thousands of rupees to repair her house and improve her barren land. The deceased never wanted to make will in favour of the defendant and the subsequent will, if any, in the possession of the defendant has been procured by way of fraud and tricks and as such the same is void. 3. The defendant contested the suit, and, filed separate written statement to the plaint, wherein he has taken preliminary objections qua maintainability, cause of action, locus standi etc. On merits, the defendant has pleaded that he has become owner in possession of the suit land, on the basis of Will, dated 21.8.1997 executed by deceased Suharu, in his favour, and, as such mutation No. 408 has been rightly sanctioned in his favour. He has denied, if the plaintiff, and, his family members had been serving the deceased and pleaded that he had been serving the deceased and had also performed her last rites and ceremonies. He has denied the rest of the averments of the plaintiff and prayed for dismissal of the suit. 4. The plaintiff filed replication to the written statement of the defendant, wherein, he denied the contents of the written statement and re-affirmed and re-asserted 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 on the basis of Will dated 24.6.1994, as alleged? OPP. 2. Whether the mutation No. 408, dated 30.05.1998 sanctioned in favour of the defendant qua the suit land is illegal and void being the result of fraud and misrepresentation, as alleged? 3. Whether the plaintiff is entitled to the relief of injunction, as alleged? OPP. 4. Whether the suit is not maintainable in the present form? OPD. 5. Whether the plaintiff has no cause of action to file the present suit? OPD. 6. Whether the plaintiff has no locus standi to file the present suit as alleged? OPD. 7. Whether the plaintiff is estopped to file the present suit by his act and conduct? OPD. 8. Whether the suit is not maintainable in the present form? OPD. 5. Whether the plaintiff has no cause of action to file the present suit? OPD. 6. Whether the plaintiff has no locus standi to file the present suit as alleged? OPD. 7. Whether the plaintiff is estopped to file the present suit by his act and conduct? OPD. 8. Whether the suit is bad for non joinder of necessary parties? OPD. 9. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD. 10. Whether the suit is barred by limitation? OPD. 11. Whether the deceased Smt. Suharu had executed a valid Will dated 21.8.1997 in favour of the defendant, as alleged. If so, its effect? 12. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiff(s)/respondent(s)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 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, 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 the learned first appellate court has wrongly and incorrectly dismissed application under Order 41, Rule 27, CPC filed by the appellant/defendant seeking permission to place on record the original Will dated 21.8.1997, a copy of which is Ex.DW2/A and by such wrongly dismissal of the application under Order 41, Rule 27, CPC, grave prejudice has been caused on the appellant/defendant in his defence? 2. Whether once it is proved that propounder/plaintiff himself has taken active part in the execution of the alleged Will dated 24.6.1994 and the said alleged Will confers substantial benefit on him, that itself is a suspicious circumstance sufficient to discard the Will dated 24.6.1994? 3. 2. Whether once it is proved that propounder/plaintiff himself has taken active part in the execution of the alleged Will dated 24.6.1994 and the said alleged Will confers substantial benefit on him, that itself is a suspicious circumstance sufficient to discard the Will dated 24.6.1994? 3. Whether registration of Will dated 21.8.1997 dispel any alleged suspicious circumstance especially when it is proved that it was brought home to the testatrix (deceased Smt. Suharu) that it was the Will and thereafter she admitted and signed in the presence of Sub Registrar? 4. Whether once it is proved from the contents that the Will dated 21.8.1997, a copy of which is Ex.DW2/A, the earlier alleged Will in favour of the plaintiff/respondent was revoked/cancelled by deceased Smt. Suharu, the learned Courts below have wrongly and incorrectly discarded the Will dated 21.8.1997 which is proved to be the last Will of the testatrix? Substantial questions of Law No.1 to 4: 8. Since, this Court has permitted, the, learned counsel appearing for the aggrieved defendant, to address arguments, vis-a-vis, hence existence, of, evidence, in, proof of, the, purported valid, and, due execution of Ex.DW2/A, and, also qua the afore evidence, being within or outside the domain, of, the mandatory, and, peremptory mandate, cast in Section 63 of the Indian Succession Act, thereupon, this Court, need not mete, any answer to substantial question of law No.1. Accordingly, substantial question of law No.1, is, rendered redundant. 9. The testamentary disposition, propounded by the plaintiff, is borne in Ex.PW2/A, and, it was executed prior in time, vis-a-vis, the execution, by deceased Suharu, of, the, testamentary disposition, borne in Ex.DW2/A, hence qua the defendant, (a) and, naturally, upon, the latter testamentary disposition being construed to be validly and duly executed, thereupon, it would per se annul or rescind the prior thereto executed, hence, testamentary disposition, by deceased testator, vis-a-vis, the deceased plaintiff. 10. Be that as it may, Ex.PW2/A, is, a registered testamentary disposition, and, in conformity with the mandate, enshrined in Section 63, of, the Indian Succession Act, both the marginal witnesses thereto render, in their respective testifications, hence, echoing(s) qua the deceased testator, thumb marking Ex.PW2/A, in their presence, and, also render further echoings qua thereafter each, in the presence of the deceased testator, hence, making their requisite signatures thereon. Consequently, with, the peremptory ingredients, as, embodied in Section 63 of the Indian Succession Act, being meted, the, absolutest satiation, and, also when the signatured, and, sealed endorsements made on Ex.PW2/A, by the Registering Officer concerned, carry clear, and, explicit echoing(s), qua (i) after the Registering Officer explaining the contents thereof, to, the deceased testator, and, his ensuring qua hers comprehending them, his making the statutory endorsements, and, when there underneath hence, exist, the, uncontested signatures, of, the deceased testator, (ii) and, also when thereon, hence exist, the, signatures, of, one of the marginal witnesses to Ex.PW2/A, (iii) and, when no evidence is adduced, vis-a-vis, the afore statutory endorsement, being engulfed with any aura, of, falsity, and, doubt, (iv) therefrom, an assured conclusion is derivable qua the plaintiff proving, the, valid, and, due execution, of, Ex.PW2/A, rather also obviously, within, the ambit of the provisions, of, Section 63, of, the Indian Succession Act. 11. Be that as it may, since as aforestated, the, Will propounded by the defendant, stood, executed subsequent, to the execution of Ex.PW2/A, hence, upon, the defendant adducing relevant discharging evidence, rather, within the domain, of, Section 63, of, the Indian Succession Act, (a) thereupon, Ex.DW2/A would prevail, upon, Ex.PW2/A, and, also obviously thereupon, the, annulment, and, rescission of Ex.PW2/A, hence, would ensue. However, for, Ex.DW2/A ensuring, the, underwhelming, of, and, the, ripping apart, of, the vigour of Ex.PW2/A, it is enjoined, upon, the defendant, to, prove qua all the peremptory statutory ingredients borne, in, Section 63 of the Indian Succession Act, being completely satiated. 12. In discharge of the afore onus, the defendant led into the witness box, both the marginal witnesses, vis-a-vis, Ex.DW2/A, inasmuch, as, he, ensured the stepping into the witness box of DW-2, one Baldev Singh, and, of DW-4 one Sukh Ram. Consequently, the testification(s) embodied, in their respective depositions, do, require their indepth perusal. 12. In discharge of the afore onus, the defendant led into the witness box, both the marginal witnesses, vis-a-vis, Ex.DW2/A, inasmuch, as, he, ensured the stepping into the witness box of DW-2, one Baldev Singh, and, of DW-4 one Sukh Ram. Consequently, the testification(s) embodied, in their respective depositions, do, require their indepth perusal. A reading of the deposition, of, DW-2 one Baldev Singh, as embodied, in his examination-in-chief, though, unfolds qua his proving, the, factum qua the deceased testator, appending, in his presence, her thumb impression, upon, Ex.PW2/A. However, thereafter he omits to make, the, peremptory statutorily enjoined testification qua his also thereafter, in the presence, of, the deceased testator, appending his signatures thereon, (a) and, also DW-4, though, has rendered a testification, vis-a-vis, the deceased testator, in his presence, appending her thumb impression, upon, Ex.DW2/A, however, thereafter also alike DW-2, he, has omitted, to, render, the, statutorily enjoined echoing qua his thereafter, in, the presence of the deceased testator, making his signatures thereon. Nonetheless, though, both the afore marginal witnesses, in their respective testifications, rendered echoings qua at the stage prior, to, the registration of Ex.DW2/A, the latter visibly not begetting satiation, of, the requisite peremptory ingredients, borne in Section 63 of the Indian Succession Act, (b) yet both make depositions qua thereafter, hence, before the Sub Registrar concerned, the deceased testator, appending her thumb impression thereon, and, the afore embossings occurring, after, the Sub Registrar concerned, reading, and, explicating all the recitals occurring therein, and, also after hers thereafter comprehending, all, the contents thereof. 13. Be that as it may, DW-3, the scribe of the Will, Ex.DW2/A, has, in his deposition, not, made any echoings hence contradicting, the, echoings rendered, by DW-2 Baldev Singh, and, by DW-4 Sukh Ram, (a) wherein, both the afore Dws, do not convey, qua the requisite peremptory statutory parameters, enshrined in Section 63, of, the Indian Succession Act, begetting their apt completest satiation. Consequently, at the stage, prior, to, the registration of Ex.DW2/A, all, the imperative statutory para-meters, visibly do not, beget, the, absolutest, and, the, completest satiation, (b) thereupon, Ex.DW2/A, is, to be concluded, to be, not proven, validly, and, duly executed. Consequently, at the stage, prior, to, the registration of Ex.DW2/A, all, the imperative statutory para-meters, visibly do not, beget, the, absolutest, and, the, completest satiation, (b) thereupon, Ex.DW2/A, is, to be concluded, to be, not proven, validly, and, duly executed. Since, Ex.DW2/A, is, a registered testamentary disposition, and, thereunderin, hence, the sealed, and, signatured statutory endorsements, rather carrying the afore recitals, rather exist, and, where underneath, also exist, the thumb impression, of, the deceased testator, (c) and, when thereat, she is purportedly identified by Sukh Ram, and, also thereon exist, the, signatures of Baldev Singh, and, of, Sukh Ram, (d) thereupon, in case cogent evidence exists on record, and, it makes vivid displays qua both DW-2 and DW-4, being contemporaneously present alongwith, the, deceased testator, before the Registering Officer concerned, (e) thereupon, at, the pre-registration stage, the effects, if any, of minimal deviation(s), vis-a-vis, compliance(s) being meted vis-a-vis, the statutory parameters, enshrined in Section 63 of the Indian Succession Act, may be under whelmed. For making the afore conclusion, it is significant to allude, to, the testification, of, DW-2, (f) wherein he has made, a, testification qua, excepting one, hence made before the Sub Registrar, the, deceased testator embossing her thumb impression, on Ex.DW2/A. The afore deposition, would, carry immense vigour, only, when he also had made bespeakings, in his testification, qua his also before the Sub Registrar, making his signatures, on Ex.DW2/A. However, he has not made, the, afore testification, and, besides when DW-4, though, is the identifier of the deceased testator, purportedly before the Sub Registrar concerned, and, who rather has rendered, a, testification qua, upon, presentation of Ex.DW2/A before the Sub Registrar concerned, the latter querying her, vis-a-vis, the, veracity, of, the contents of the Will. Nonetheless, he has not rendered any testification qua in his presence, and, imperatively before the Sub Registrar concerned, hence, the, deceased testator appending her thumb impression thereon, and, contrarily, he, has proceeded to depose, that, rather before the Registration Clerk, the deceased testator, on his identification, hence appending her thumb impressions. Nonetheless, he has not rendered any testification qua in his presence, and, imperatively before the Sub Registrar concerned, hence, the, deceased testator appending her thumb impression thereon, and, contrarily, he, has proceeded to depose, that, rather before the Registration Clerk, the deceased testator, on his identification, hence appending her thumb impressions. The necessary sequel therefrom, (g) is, qua the statutory presumption, visited, vis-a-vis, signatured, and, sealed endorsements, made, on Ex.DW2/A, by the Registering Officer concerned, being hence rebutted, and, also the further derivative, therefrom, inference, is, (h) qua DW-2, and, DW-4, for avoiding investigations, by the Sub Registrar concerned, vis-a-vis, the identity of the deceased testator, theirs, not ensuring qua the deceased testator, embossing her thumb impressions before him, rather theirs proceeding, to, take the purported deceased testator, for, hence hers making her thumb impressions, before the Registration Clerk concerned, (I) and, thereafter the registering officer only routinely, and, as, a, ministerial act, proceeding, to, make his signatures, upon, Ex.DW2/A, dehors, his personally reading the recitals borne in Ex.DW2/A, to the deceased testator, and, also without his ensuring qua hers comprehending them, and, without his ensuring, qua the deceased testator, in his presence, making, her thumb markings, under, the statutory endorsements. The corollary thereof, is, qua, upon, erosion, of, the veracity, of, the statutory endorsements, hence, all ill-effects thereof, comprised, in, the identity, of the deceased testator hence being faked, rather making upsurgings. Further thereonwards, since, as aforestated DW-2, has omitted, to make, a deposition qua his signaturing Ex.DW2/A, before the Sub Registrar concerned, thereupon also it appears, that, his signatures, occurring on the reverse of Ex.DW2/A, and, purportedly appended, before the Sub Registrar, rather not being appended therebefore, contrarily theirs being made, at a place, other than, the office of the Sub Registrar, and, thereupon, it can safely be concluded, that, the defendant, has failed to prove the valid, and, due execution, of, Ex.DW2/A. 14. Furthermore, the learned counsel, appearing for the defendant, has contended, that, since the deceased plaintiff, has taken active participation, in the execution of, Ex.PW2/A, thereupon, the execution of Ex.PW2/A, stands surrounded, by suspicious circumstance. However, the afore submission, stands straightway rejected, given, the mere participation of the plaintiff, in the execution, of, Ex.PW2/A, rather not, constituting any purported suspicious ground, and, also when the afore requisite suspicious circumstance, is not pleaded, by the defendant, hence, evidence beyond pleadings, being also discardable. 15. However, the afore submission, stands straightway rejected, given, the mere participation of the plaintiff, in the execution, of, Ex.PW2/A, rather not, constituting any purported suspicious ground, and, also when the afore requisite suspicious circumstance, is not pleaded, by the defendant, hence, evidence beyond pleadings, being also discardable. 15. The above discussion, unfolds, that the conclusions, as arrived, by both the learned courts below, being based, upon a proper and mature appreciation, of, evidence on record. While rendering the findings, both the learned Courts below have not excluded germane and apposite material from consideration. Accordingly, all the substantial questions, of law are answered in favour of the plaintiff(s)/respondents, and, against the appellant/defendant. 16. In view of the above discussion, there is no merit in the instant appeal, and, it is dismissed accordingly. In sequel, the impugned judgments, and, decrees, rendered by both the learned Courts below, are, affirmed, and, maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs. Records be sent back forthwith.