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2019 DIGILAW 1289 (HP)

Shakuntla Devi v. Amar Singh

2019-09-03

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. By way of this appeal, appellant has challenged the judgment and decree passed by the Court of learned Civil Judge (Sr. Divn.), Sirmour District at Nahan, HP, in Civil Suit No. 89/1 of 2001, decided on 26.02.2005, vide which, learned Trial Court dismissed the suit filed by the present appellant for declaration and permanent prohibitory injunction, as also the judgment and decree passed by the Court of learned District Judge, Sirmaur District at Nahan, H.P., in Civil Appeal No. 33-CA/13 of 2005, dated 21.04.2006, whereby learned Appellate Court while dismissing the appeal filed by the appellant, upheld the judgment and decree passed by the learned trial Court. 2. Brief facts necessary for adjudication of the present appeal are as under:- Plaintiff Shakuntla Devi filed a suit for declaration and permanent prohibitory injunction against the defendants on the ground that Duni Chand, father of the parties to the suit, was the owner of the landed property with abadi comprised of Khasra No. 360/227, measuring 23 bighas, khata khatauni No. 134/179, situated at village Devni, Tehsil Nahan, District Sirmaur, H.P. Parties to the suit were having good relations with their deceased father. It was the plaintiff who used to look after and serve her father in old and ailing condition. Her father had committed to her that he would give landed property of his share, which comes to about 71/2 bighas to her, as she was married in a poor family. According to the plaintiff, late Duni Chand was an aged person and was suffering from Asthama, on account of which, he had become feeble and weak, both mentally and physically. His power of hearing and vision was greatly impaired and weakened. Duni Chand died on 06.03.1999 at Zonal Hospital, Nahan. On 15.07.2000, plaintiff asked defendant No. 1 for amicable partition of the suit land, however, defendant No. 1 clearly refused to do so and stated that plaintiff had no right, title or interest over the suit land, as defendant No. 1 was the absolute owner of the suit property. Plaintiff thereafter approached Halqua Patwari and procured Jamabandi, perusal of which demonstrated that on the basis of a Will dated 06.03.1999, defendant No. 1 had got incorporated revenue entries in his favour qua the suit land. Plaintiff thereafter approached Halqua Patwari and procured Jamabandi, perusal of which demonstrated that on the basis of a Will dated 06.03.1999, defendant No. 1 had got incorporated revenue entries in his favour qua the suit land. According to the plaintiff, said Will as well as the entries of mutation which were recorded in favour of defendant No. 1 were fraudulent, wrong, illegal, manipulated and collusive and were inoperative as far as the plaintiff was concerned. According to the plaintiff, Duni Chand had not executed any Will during his lifetime. She being a co-sharer in joint possession to the extent of 1/3rd share, had a right to seek partition of her share and defendant No. 1 had no right to alienate the property in excess of his share. 3. Whereas defendant No. 1 denied the claim of the plaintiff, defendant No. 2 admitted the claim of the plaintiff. Defendant No. 1 while contesting the plaint took the stand that late Duni Chand had executed a valid Will on 06.03.1999 in his favour which was duly registered before the Sub Registrar, Nahan, on the same day. The property stood bequeathed in his favour by way of Will as he was the only son of deceased Duni Chand. Duni Chand was residing with defendant No. 1. Plaintiff as well as proforma defendant No. 2 were also aware of this fact and mutation was also attested in favour of defendant No. 1 on the basis of said Will. According to defendant No. 1, it was only on account of greed that the suit stood filed by the plaintiff. 4. On the basis of pleadings of the parties, learned Trial Court framed the following issues:- "1. Whether Will No. 17 dated 06-03-1999 is the last and final Will of late Shri Duni Chand, executed in favour of defendant No. 1, as alleged? If so its effect?. OPD-1 2. If Issue No. (1) is proved in affirmative, whether the Will is a result of fraud, misrepresentation, as alleged?.OPP. 3. Whether the suit of the plaintiff is not maintainable as the plaintiff is not in possession of the suit land?.OPD. 4. Whether the plaintiff is estopped by her act, and conduct to file the present suit?.OPD. (5) Relief." 5. If Issue No. (1) is proved in affirmative, whether the Will is a result of fraud, misrepresentation, as alleged?.OPP. 3. Whether the suit of the plaintiff is not maintainable as the plaintiff is not in possession of the suit land?.OPD. 4. Whether the plaintiff is estopped by her act, and conduct to file the present suit?.OPD. (5) Relief." 5. On the basis of pleadings and evidence led by the parties in support of their respective cases, the Issues so framed were answered by the learned Trial Court as under:- "Issue No.1 : Yes. Issue No. 2 : No. Issue No. 3 : Yes. Issue No.4 : Yes. Issue No. 5 : The Suit dismissed with costs as per operative part of the judgment." 6. The suit was dismissed by the learned Trial Court by holding that whereas Will Ext. D-A stood duly proved on record, it also stood established that said Will was the last Will executed by deceased Duni Chand. Mutation Ext. P-1 demonstrated that plaintiff and proforma defendants were aware of the execution of the Will in favour of defendant No. 1 as they had voluntarily agreed for attestation of the mutation of the property of late Duni Chand in favour of defendant No.1. Learned Trial Court further held that Will dated 06.03.1999 was the last and final Will of late Duni Chand executed in favour of defendant No. 1 and the same was not result of fraud and misrepresentation. 7. In appeal, these findings were affirmed by the learned Appellate Court. While dismissing the appeal, learned Appellate Court also held that though it was a matter of record that Duni Chand died on the same night, on which he had registered the Will, however, the Will stood registered at around 11:00 a.m. whereas Duni Chand died in the Hospital at about 10:00 p.m. on the same day. Learned Appellate Court held that there is nothing on record to suggest that mental condition of Duni Chand during date time was not sound or that prior to or on 06.03.1999, he was suffering from any mental disorder. It held that death of a person can be sudden but that does not mean that prior to death, that person was not in a sound state of mind. It held that death of a person can be sudden but that does not mean that prior to death, that person was not in a sound state of mind. It further held that as the Will stood duly proved by the scribe of the Will as also by the marginal witness, this demonstrated that Duni Chand was in a perfect state of mind at the time of execution of the Will. Learned Court also held that if a propounder of Will was in a position to establish that testator was in sound state of mind at the time of execution of the Will and if it is found that Will does not suffers from any illegality, then the onus of the propounder stands discharged and the Will in that eventuality is required to declared as a valid document in favour of the propounder. It further held that no material illegality or irregularity could be traced in the Will under challenge and as logical reasoning stood assigned by the learned Trial Court, said judgment called for no interference. 8. Feeling aggrieved, the appellant-plaintiff has filed this appeal, which was admitted on 25.07.2007, on the following substantial questions of law:- "1. Whether the judgment and decree of the Courts below can be sustained when it ignores the statement of DW-3 proving the Will Ex. DA? 2. Whether the judgment and decree of the Court below is against the evidence on record, more especially of PW-1 and PW-2?" 9. I have heard learned Counsel for the parties and gone through the record of the case as well as the judgments and decrees passed by the learned Courts below:- 10. Both the substantial questions of law are being answered together. A perusal of the plaint demonstrates that the case of the plaintiff in unequivocal terms was that Duni Chand in his lifetime had not executed any Will and Will Ext. D-A propounded by defendant No. 1 was a forged Will. In these circumstances, onus was upon the plaintiff to have had substantiated by placing material on record that the Will propounded by defendant No. 1 was a forged and fabricated Will. I may add that, in my considered view, there is a difference between a forged and fabricated Will as compared to a Will which a propounder might have got executed from the testator under coercion or misrepresentation. I may add that, in my considered view, there is a difference between a forged and fabricated Will as compared to a Will which a propounder might have got executed from the testator under coercion or misrepresentation. I repeat, the case of the plaintiff was not of coercion or misrepresentation but was that Will in question was a forged and fabricated Will. 11. In order to prove her case, plaintiff entered the witness box as PW1 and she also examined one Ishaq Mohammad, who deposed in the Court as PW2. Plaintiff as PW1 deposed in the Court that the suit property was owned by her father and her father had told her that he would give his share in favour of the plaintiff. She also stated that her father had given up food etc. much before his death and the day on which her father died, defendant No. 1 had taken him to the Hospital. In her cross examination, plaintiff admitted it to be correct that her father used to reside with defendant No. 1and that the land was being cultivated by defendant No. 1. Perusal of the statement of PW2 demonstrates that he nowhere stated that the Will propounded by defendant No. 1 was a forged and fabricated Will. 12. On the other hand, in order to prove that late Duni Chand had executed a valid Will in his favour, defendant besides himself, examined DW2 Puroshattam Saini, Advocate, who has scribed the Will as also Raj Mohammad, who was one of the marginal witness to the Will as DW3. A perusal of statements of these witnesses clearly demonstrates that they have duly proved on record that the Will in issue was scribed at the behest of the testator. The same was duly read over and explained to the testator and thereafter only, the testator and marginal witnesses appended their signatures upon it. Therefore, on one hand, whereas the plaintiff has not led any evidence on record to substantiate that the Will in issue was a forged and fabricated document, defendant No. 1 has placed on record reliable evidence to demonstrate that the Will in issue was a valid Will executed by Duni Chand and the same was the last Will of late Duni Chand. In this view of the matter, it cannot be said that the learned Courts below have erred in appreciating the statements of the parties, have misread the contents of Will Ext. D-A, have erred in not appreciating that the Will was not proved on record in accordance with law. Substantial questions of law are answered accordingly. In view of above discussion, as this Court does not finds any merit in the present appeal, the same is dismissed. Pending miscellaneous application(s), if any, also stand disposed of. JUDGMENT : Ajay Mohan Goel, J. By way of this appeal, appellant has challenged the judgment and decree passed by the Court of learned Civil Judge (Sr. Divn.), Sirmour District at Nahan, HP, in Civil Suit No. 89/1 of 2001, decided on 26.02.2005, vide which, learned Trial Court dismissed the suit filed by the present appellant for declaration and permanent prohibitory injunction, as also the judgment and decree passed by the Court of learned District Judge, Sirmaur District at Nahan, H.P., in Civil Appeal No. 33-CA/13 of 2005, dated 21.04.2006, whereby learned Appellate Court while dismissing the appeal filed by the appellant, upheld the judgment and decree passed by the learned trial Court. 2. Brief facts necessary for adjudication of the present appeal are as under:- Plaintiff Shakuntla Devi filed a suit for declaration and permanent prohibitory injunction against the defendants on the ground that Duni Chand, father of the parties to the suit, was the owner of the landed property with abadi comprised of Khasra No. 360/227, measuring 23 bighas, khata khatauni No. 134/179, situated at village Devni, Tehsil Nahan, District Sirmaur, H.P. Parties to the suit were having good relations with their deceased father. It was the plaintiff who used to look after and serve her father in old and ailing condition. Her father had committed to her that he would give landed property of his share, which comes to about 71/2 bighas to her, as she was married in a poor family. According to the plaintiff, late Duni Chand was an aged person and was suffering from Asthama, on account of which, he had become feeble and weak, both mentally and physically. His power of hearing and vision was greatly impaired and weakened. Duni Chand died on 06.03.1999 at Zonal Hospital, Nahan. According to the plaintiff, late Duni Chand was an aged person and was suffering from Asthama, on account of which, he had become feeble and weak, both mentally and physically. His power of hearing and vision was greatly impaired and weakened. Duni Chand died on 06.03.1999 at Zonal Hospital, Nahan. On 15.07.2000, plaintiff asked defendant No. 1 for amicable partition of the suit land, however, defendant No. 1 clearly refused to do so and stated that plaintiff had no right, title or interest over the suit land, as defendant No. 1 was the absolute owner of the suit property. Plaintiff thereafter approached Halqua Patwari and procured Jamabandi, perusal of which demonstrated that on the basis of a Will dated 06.03.1999, defendant No. 1 had got incorporated revenue entries in his favour qua the suit land. According to the plaintiff, said Will as well as the entries of mutation which were recorded in favour of defendant No. 1 were fraudulent, wrong, illegal, manipulated and collusive and were inoperative as far as the plaintiff was concerned. According to the plaintiff, Duni Chand had not executed any Will during his lifetime. She being a co-sharer in joint possession to the extent of 1/3rd share, had a right to seek partition of her share and defendant No. 1 had no right to alienate the property in excess of his share. 3. Whereas defendant No. 1 denied the claim of the plaintiff, defendant No. 2 admitted the claim of the plaintiff. Defendant No. 1 while contesting the plaint took the stand that late Duni Chand had executed a valid Will on 06.03.1999 in his favour which was duly registered before the Sub Registrar, Nahan, on the same day. The property stood bequeathed in his favour by way of Will as he was the only son of deceased Duni Chand. Duni Chand was residing with defendant No. 1. Plaintiff as well as proforma defendant No. 2 were also aware of this fact and mutation was also attested in favour of defendant No. 1 on the basis of said Will. According to defendant No. 1, it was only on account of greed that the suit stood filed by the plaintiff. 4. On the basis of pleadings of the parties, learned Trial Court framed the following issues:- "1. According to defendant No. 1, it was only on account of greed that the suit stood filed by the plaintiff. 4. On the basis of pleadings of the parties, learned Trial Court framed the following issues:- "1. Whether Will No. 17 dated 06-03-1999 is the last and final Will of late Shri Duni Chand, executed in favour of defendant No. 1, as alleged? If so its effect?. OPD-1 2. If Issue No. (1) is proved in affirmative, whether the Will is a result of fraud, misrepresentation, as alleged?.OPP. 3. Whether the suit of the plaintiff is not maintainable as the plaintiff is not in possession of the suit land?.OPD. 4. Whether the plaintiff is estopped by her act, and conduct to file the present suit?.OPD. (5) Relief." 5. On the basis of pleadings and evidence led by the parties in support of their respective cases, the Issues so framed were answered by the learned Trial Court as under:- "Issue No.1 : Yes. Issue No. 2 : No. Issue No. 3 : Yes. Issue No.4 : Yes. Issue No. 5 : The Suit dismissed with costs as per operative part of the judgment." 6. The suit was dismissed by the learned Trial Court by holding that whereas Will Ext. D-A stood duly proved on record, it also stood established that said Will was the last Will executed by deceased Duni Chand. Mutation Ext. P-1 demonstrated that plaintiff and proforma defendants were aware of the execution of the Will in favour of defendant No. 1 as they had voluntarily agreed for attestation of the mutation of the property of late Duni Chand in favour of defendant No.1. Learned Trial Court further held that Will dated 06.03.1999 was the last and final Will of late Duni Chand executed in favour of defendant No. 1 and the same was not result of fraud and misrepresentation. 7. In appeal, these findings were affirmed by the learned Appellate Court. While dismissing the appeal, learned Appellate Court also held that though it was a matter of record that Duni Chand died on the same night, on which he had registered the Will, however, the Will stood registered at around 11:00 a.m. whereas Duni Chand died in the Hospital at about 10:00 p.m. on the same day. While dismissing the appeal, learned Appellate Court also held that though it was a matter of record that Duni Chand died on the same night, on which he had registered the Will, however, the Will stood registered at around 11:00 a.m. whereas Duni Chand died in the Hospital at about 10:00 p.m. on the same day. Learned Appellate Court held that there is nothing on record to suggest that mental condition of Duni Chand during date time was not sound or that prior to or on 06.03.1999, he was suffering from any mental disorder. It held that death of a person can be sudden but that does not mean that prior to death, that person was not in a sound state of mind. It further held that as the Will stood duly proved by the scribe of the Will as also by the marginal witness, this demonstrated that Duni Chand was in a perfect state of mind at the time of execution of the Will. Learned Court also held that if a propounder of Will was in a position to establish that testator was in sound state of mind at the time of execution of the Will and if it is found that Will does not suffers from any illegality, then the onus of the propounder stands discharged and the Will in that eventuality is required to declared as a valid document in favour of the propounder. It further held that no material illegality or irregularity could be traced in the Will under challenge and as logical reasoning stood assigned by the learned Trial Court, said judgment called for no interference. 8. Feeling aggrieved, the appellant-plaintiff has filed this appeal, which was admitted on 25.07.2007, on the following substantial questions of law:- "1. Whether the judgment and decree of the Courts below can be sustained when it ignores the statement of DW-3 proving the Will Ex. DA? 2. Whether the judgment and decree of the Court below is against the evidence on record, more especially of PW-1 and PW-2?" 9. I have heard learned Counsel for the parties and gone through the record of the case as well as the judgments and decrees passed by the learned Courts below:- 10. Both the substantial questions of law are being answered together. I have heard learned Counsel for the parties and gone through the record of the case as well as the judgments and decrees passed by the learned Courts below:- 10. Both the substantial questions of law are being answered together. A perusal of the plaint demonstrates that the case of the plaintiff in unequivocal terms was that Duni Chand in his lifetime had not executed any Will and Will Ext. D-A propounded by defendant No. 1 was a forged Will. In these circumstances, onus was upon the plaintiff to have had substantiated by placing material on record that the Will propounded by defendant No. 1 was a forged and fabricated Will. I may add that, in my considered view, there is a difference between a forged and fabricated Will as compared to a Will which a propounder might have got executed from the testator under coercion or misrepresentation. I repeat, the case of the plaintiff was not of coercion or misrepresentation but was that Will in question was a forged and fabricated Will. 11. In order to prove her case, plaintiff entered the witness box as PW1 and she also examined one Ishaq Mohammad, who deposed in the Court as PW2. Plaintiff as PW1 deposed in the Court that the suit property was owned by her father and her father had told her that he would give his share in favour of the plaintiff. She also stated that her father had given up food etc. much before his death and the day on which her father died, defendant No. 1 had taken him to the Hospital. In her cross examination, plaintiff admitted it to be correct that her father used to reside with defendant No. 1and that the land was being cultivated by defendant No. 1. Perusal of the statement of PW2 demonstrates that he nowhere stated that the Will propounded by defendant No. 1 was a forged and fabricated Will. 12. On the other hand, in order to prove that late Duni Chand had executed a valid Will in his favour, defendant besides himself, examined DW2 Puroshattam Saini, Advocate, who has scribed the Will as also Raj Mohammad, who was one of the marginal witness to the Will as DW3. A perusal of statements of these witnesses clearly demonstrates that they have duly proved on record that the Will in issue was scribed at the behest of the testator. A perusal of statements of these witnesses clearly demonstrates that they have duly proved on record that the Will in issue was scribed at the behest of the testator. The same was duly read over and explained to the testator and thereafter only, the testator and marginal witnesses appended their signatures upon it. Therefore, on one hand, whereas the plaintiff has not led any evidence on record to substantiate that the Will in issue was a forged and fabricated document, defendant No. 1 has placed on record reliable evidence to demonstrate that the Will in issue was a valid Will executed by Duni Chand and the same was the last Will of late Duni Chand. In this view of the matter, it cannot be said that the learned Courts below have erred in appreciating the statements of the parties, have misread the contents of Will Ext. D-A, have erred in not appreciating that the Will was not proved on record in accordance with law. Substantial questions of law are answered accordingly. In view of above discussion, as this Court does not finds any merit in the present appeal, the same is dismissed. Pending miscellaneous application(s), if any, also stand disposed of.