Research › Search › Judgment

Himachal Pradesh High Court · body

2019 DIGILAW 1413 (HP)

Jagdish Chand v. Jai Kishan

2019-09-19

AJAY MOHAN GOEL

body2019
JUDGMENT : Ajay Mohan Goel, J. By way of this appeal, appellant/plaintiff has challenged the judgment and decree passed by the Court of learned Civil Judge (Sr. Divn.), Baijnath, District Kangra, H.P. in Civil Suit No. 45/05, decided on 21.03.2005, vide which, learned Trial Court dismissed the suit filed by the present appellant/plaintiff for declaration, as also the judgment and decree passed by the Court of learned District Judge, Kangra at Dharamshala, District Kangra (HP), in Civil Appeal No. 59-B/XIII/2005, dated 28.09.2007, whereby learned Appellate Court while dismissing the appeal filed by the present appellant/plaintiff, upheld the judgment and decree passed by the learned trial Court. 2. Brief facts necessary for adjudication of the present appeal are as under:- Appellant/plaintiff Jagdish Chand filed a suit for declaration on the ground that he was the legal heir of deceased Kaulan Devi as per her Will dated 21.09.1992 and had thus become owner in possession of the suit land bearing Khata No. 5 min, Khatauni No. 10, Khasra Nos. 135, 136 and 139, measuring 0-04-89 hectares and of Khata No. 8, Khatauni No. 47, Khasra No. 134, measuring 0-01-40 hectares situated at Mohal-Madho Nagar, Mauja Lanod, Tehsil Baijnath, Distt. Kangra (HP) (hereinafter referred to as the 'suit land') and Will dated 11.01.1993 alleged to be executed by deceased Kaulan Devi in favour of defendant was wrong, illegal, null and void, result of fraud and misrepresentation and not binding on the plaintiff. It was further the case of the plaintiff that mutation Nos. 306, 316 and 318 attested on the basis of Will in the name of defendant were also null and void. Plaintiff also prayed that a consequential relief of permanent prohibitory injunction by restraining the defendant from taking forcible possession of the suit land or alienating the suit land. 3. The suit of the plaintiff was resisted by the defendant on the ground that Kaulan Devi was looked after and maintained by the defendant and accordingly, she executed her last and valid Will dated 11.01.1993 in his favour. As per him, Kaulan Devi had not executed any other Will in favour of anyone, except the defendant, and thus, he was the only successor of deceased Kaulan Devi. As per him, Kaulan Devi had not executed any other Will in favour of anyone, except the defendant, and thus, he was the only successor of deceased Kaulan Devi. It was the case of the defendant that plaintiff was fully aware about the presentation of the Will dated 11.01.1993 before the Patwari and attestation of mutation in pursuance thereof and mutations have rightly been attested in favour of the defendant. According to the defendant, Will executed by deceased Kaulan Devi in his favour was a result of free will of the testator as she was served upon by the defendant and even her last rites were performed by the defendant. 4. On the basis of pleadings of the parties, learned Trial Court framed the following issues:- "1.Whether the plaintiff is entitled for the relief of declaration, as prayed for? OPP 2. Whether the plaintiff is legal heir of deceased Kaulan Devi on the basis of Will dated 21.9.1992 and is exclusive owner in possession of the suit land, as alleged? OPP. 3. Whether the mutation No. 306 dated 3.12.1998 and mutation Nos. 316 and 318 dated 7.8.1999 sanctioned in favour of the defendant on the basis of Will dated 11.1.1993 are null and void and result of fraud and mis-representation and are not binding upon the plaintiff as alleged? OPP. 4. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction, as prayed for? OPP 5. Whether the suit is time barred? OPD 6. Whether the plaintiff is estopped by his act and conduct from filing the present suit? OPD 7. Whether the suit is vague and therefore liable to be dismissed, as alleged? OPD 8. Whether the suit is filed by unauthorised agent of the plaintiff, as alleged? OPD 9. Whether Kaulan Devi has executed a valid Will in favour of the defendant on 11.1.1993 out of her sweet Will, as alleged? OPD. 10. 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 : No Issue No. 2 : No. Issue No. 3 : No. Issue No. 4 : No. Issue No. 5 : No. Issue No. 6 : No. Issue No. 7 : No. Issue No. 8 : No. Issue No. 9 : Yes. Issue No.4 : The suit of the plaintiff is dismissed as per operative part of the judgment." 6. The suit was dismissed by the learned Trial Court by holding that it was not the case of the plaintiff that he was related to Kaulan Devi and was disinherited from the suit land by way of Will in issue. Learned Trial Court also held that defendant had produced on record trustworthy and unimpeachable evidence to establish genuineness and authenticity of the Will dated 11.01.1993. It held that there was nothing suspicious about the execution of the Will in question, and in fact, defendant had proved all the necessary conditions for the valid execution of the Will. Learned Trial Court held that a close scrutiny of Will Ext. DW3/A demonstrated that testator had put her thumb impression upon the same and the document was duly signed by the marginal witnesses. It held that cross examination of the witnesses of the defendant had not disclosed that Kaulan Devi was of feeble mind and that no Will was executed by her in favour of defendant. Learned Trial Court also held that undoubtedly the execution of Will Ext. PW2/A, which was executed by the testator in favour of the plaintiff, also stood proved, however, as the Will in favour of defendant dated 11.01.1993 was the last Will, therefore, it was the defendant who had become owner in possession of the entire estate of Kaulan Devi. Learned Trial Court also held that as mutations in issue were sanctioned on the basis of Will Ext. DW3/A, which was duly proved to be the last Will of the testator, therefore, it could not be said that the attestation of the mutations was bad in law. Learned Trial Court also held that plaintiff had failed to prove that he was the owner in possession of the suit land, and in fact, plaintiff was a stranger as far as the suit land was concerned and he had no right over the same. 7. In appeal, the findings so returned by the learned Trial Court were upheld. Learned Appellate Court while dismissing the appeal filed by the plaintiff held that it stood duly proved on record that Will Ext. DW3/A, dated 11.01.1993 was the last and final Will of deceased Kaulan Devi which was executed in favour of the defendant. 7. In appeal, the findings so returned by the learned Trial Court were upheld. Learned Appellate Court while dismissing the appeal filed by the plaintiff held that it stood duly proved on record that Will Ext. DW3/A, dated 11.01.1993 was the last and final Will of deceased Kaulan Devi which was executed in favour of the defendant. Learned Appellate Court further held that defendant was entitled to succeed to the estate of deceased Kaulan Devi on the strength of the said Will and the mutations which stood attested in his favour on the basis of said Will were legal mutations. Learned Appellate Court also held that the findings recorded by the learned Trial Court were based on proper appreciation of evidence on record as also the legal provisions and the same did not call for any interference. 8. Feeling aggrieved, the appellant/plaintiff has filed this appeal, which was admitted on 29.02.2008, on the following substantial questions of law:- "(i). Since both the wills have been held to be genuine and valid by the Ld. First appellate Court and will Ext. PW2/A is the registered will, whether presumption of genuineness is attached to registered will in view of section 60 of Registration Act. (ii) Whether the will Ext. DW3/A dated 11.10.1993 can be held to be valid and genuine will as the same had been executed within 4 months of the execution of will Ext. PW2/A dated 21.09.1993 and there is no mentioned of execution of earlier will. (iii) Whether the Will Ext. DW3/A is the result of fraud, misrepresentation of facts and surrounded by suspicious circumstances and have been prepared just to grab the land in question. 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. Learned Senior Counsel appearing for the appellant in support of substantial questions of law has argued that judgments and decree passed by learned Courts below are liable to be quashed and set aside because both the learned Court below have erred in not appreciating that Will Ext. DW3/A was a result of fraud and misrepresentation and same was shrouded with suspicious circumstances as same was purportedly executed shortly after the earlier Will. No other point was argued. 11. DW3/A was a result of fraud and misrepresentation and same was shrouded with suspicious circumstances as same was purportedly executed shortly after the earlier Will. No other point was argued. 11. On the other hand, learned Counsel for the respondent has argued that there was no infirmity with the judgments and decrees passed by the learned Courts below. He argued that simply because the subsequent Will was executed within four months of the earlier Will, the same did not lead to the inference that subsequent Will was a forged Will or was a result of any misrepresentation. He further argued that in law there is no requirement that the testator has to refer to any previous Will executed by him/her in case he/she subsequently executes a Will. 12. In the present case, there are concurrent findings returned by both the learned Courts below against the plaintiff and in favour of the defendant that Will dated 11.01.1993, Ext. DW3/A was a valid and genuine Will. A perusal of the record of the case demonstrates that in order to prove the said Will, defendant besides himself, examined DW2 Bikham Ram, scribe of the Will, as also DW3 Roshan Lal and DW4 Ishwar Dass, who were the marginal witnesses to the Will Ext. DW3/A. A perusal of the statement of these three witnesses demonstrates that they have unequivocally stated that Will was executed on 11.01.1993 at the behest of testator Kaulan Devi. The scribe after writing the Will as per the wish of Kaulan Devi, had read over the same to her and the testator appended her signatures upon the same after understanding the contents thereof. It is also apparent from the statements of the said three witnesses that thereafter marginal witnesses had appended their signatures upon the Will in issue. These facts clearly demonstrate that Will dated 11.01.1993 Ext. DW3/A stood proved on record to have been executed strictly in accordance with law. During the course of arguments, learned Counsel for the appellant could not draw the attention of the Court to any evidence on record from which it could be inferred that Will Ext. DW3/A was a result of fraud. DW3/A stood proved on record to have been executed strictly in accordance with law. During the course of arguments, learned Counsel for the appellant could not draw the attention of the Court to any evidence on record from which it could be inferred that Will Ext. DW3/A was a result of fraud. Now when one peruses the plaint filed by the appellant, para 10 thereof demonstrates that the stand of the plaintiff before the learned Trial Court was that deceased Kaulan Devi had not executed any Will dated 11.01.1993 in favour of defendant and said Will was result of fraud and mis-representation. When the statement of the plaintiff categorically was that no Will was executed by Kaulan Devi in favour of the defendant, then the onus was upon the plaintiff to have had produced cogent evidence on record to demonstrate that the Will in issue was a forged Will. Plaintiff has miserably failed to do so. On the other hand, defendant has led cogent evidence on record to prove that Will Ext. DW3/A was duly executed by the testator in favour of the defendant. Execution of the Will stands duly proved by the scribe as also two marginal witnesses to the Will in issue. In these circumstances, it cannot be said that learned Courts below have erred in coming to the conclusion that Will dated 11.01.1993 was a valid and genuine Will. As far as the execution of the said Will within four months of the earlier Will by deceased Kaulan Devi is concerned, there is no law which prevents the testator from doing so. Similarly, in law, it is not necessary that in case a subsequent Will has been executed by the testator, then, in all circumstances, in the subsequent Will, reference has to be made of any previous Will, which might have been executed by the testator. Here, it is a peculiar case where neither plaintiff nor the defendant were related to Kaulan Devi. Thus, it is not a case where it could be said that there were suspicious circumstances surrounding the Will as by way of execution of the same, the natural successor stood disinherited from the property of the testator. Here, it is a peculiar case where neither plaintiff nor the defendant were related to Kaulan Devi. Thus, it is not a case where it could be said that there were suspicious circumstances surrounding the Will as by way of execution of the same, the natural successor stood disinherited from the property of the testator. As neither the plaintiff nor the defendant were in any manner related to Smt. Kaulan Devi, therefore, in this peculiar circumstance, if there is no reference of the previous Will in subsequent Will executed by Kaulan Devi, the same will not render the subsequent Will to be bad in law, especially when the specific stand of the plaintiff, as I have already mentioned hereinabove, was that no Will whatsoever was executed by Smt. Kaulan Devi in favour of the defendant and the Will being relied upon by the defendant was a forged Will, which the plaintiff miserably failed to prove. 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 accordingly. Pending miscellaneous applications, if any, also stand disposed of. No order as to costs. JUDGMENT : Ajay Mohan Goel, J. By way of this appeal, appellant/plaintiff has challenged the judgment and decree passed by the Court of learned Civil Judge (Sr. Divn.), Baijnath, District Kangra, H.P. in Civil Suit No. 45/05, decided on 21.03.2005, vide which, learned Trial Court dismissed the suit filed by the present appellant/plaintiff for declaration, as also the judgment and decree passed by the Court of learned District Judge, Kangra at Dharamshala, District Kangra (HP), in Civil Appeal No. 59-B/XIII/2005, dated 28.09.2007, whereby learned Appellate Court while dismissing the appeal filed by the present appellant/plaintiff, upheld the judgment and decree passed by the learned trial Court. 2. Brief facts necessary for adjudication of the present appeal are as under:- Appellant/plaintiff Jagdish Chand filed a suit for declaration on the ground that he was the legal heir of deceased Kaulan Devi as per her Will dated 21.09.1992 and had thus become owner in possession of the suit land bearing Khata No. 5 min, Khatauni No. 10, Khasra Nos. 135, 136 and 139, measuring 0-04-89 hectares and of Khata No. 8, Khatauni No. 47, Khasra No. 134, measuring 0-01-40 hectares situated at Mohal-Madho Nagar, Mauja Lanod, Tehsil Baijnath, Distt. 135, 136 and 139, measuring 0-04-89 hectares and of Khata No. 8, Khatauni No. 47, Khasra No. 134, measuring 0-01-40 hectares situated at Mohal-Madho Nagar, Mauja Lanod, Tehsil Baijnath, Distt. Kangra (HP) (hereinafter referred to as the 'suit land') and Will dated 11.01.1993 alleged to be executed by deceased Kaulan Devi in favour of defendant was wrong, illegal, null and void, result of fraud and misrepresentation and not binding on the plaintiff. It was further the case of the plaintiff that mutation Nos. 306, 316 and 318 attested on the basis of Will in the name of defendant were also null and void. Plaintiff also prayed that a consequential relief of permanent prohibitory injunction by restraining the defendant from taking forcible possession of the suit land or alienating the suit land. 3. The suit of the plaintiff was resisted by the defendant on the ground that Kaulan Devi was looked after and maintained by the defendant and accordingly, she executed her last and valid Will dated 11.01.1993 in his favour. As per him, Kaulan Devi had not executed any other Will in favour of anyone, except the defendant, and thus, he was the only successor of deceased Kaulan Devi. It was the case of the defendant that plaintiff was fully aware about the presentation of the Will dated 11.01.1993 before the Patwari and attestation of mutation in pursuance thereof and mutations have rightly been attested in favour of the defendant. According to the defendant, Will executed by deceased Kaulan Devi in his favour was a result of free will of the testator as she was served upon by the defendant and even her last rites were performed by the defendant. 4. On the basis of pleadings of the parties, learned Trial Court framed the following issues:- "1.Whether the plaintiff is entitled for the relief of declaration, as prayed for? OPP 2. Whether the plaintiff is legal heir of deceased Kaulan Devi on the basis of Will dated 21.9.1992 and is exclusive owner in possession of the suit land, as alleged? OPP. 3. Whether the mutation No. 306 dated 3.12.1998 and mutation Nos. 316 and 318 dated 7.8.1999 sanctioned in favour of the defendant on the basis of Will dated 11.1.1993 are null and void and result of fraud and mis-representation and are not binding upon the plaintiff as alleged? OPP. 4. OPP. 3. Whether the mutation No. 306 dated 3.12.1998 and mutation Nos. 316 and 318 dated 7.8.1999 sanctioned in favour of the defendant on the basis of Will dated 11.1.1993 are null and void and result of fraud and mis-representation and are not binding upon the plaintiff as alleged? OPP. 4. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction, as prayed for? OPP 5. Whether the suit is time barred? OPD 6. Whether the plaintiff is estopped by his act and conduct from filing the present suit? OPD 7. Whether the suit is vague and therefore liable to be dismissed, as alleged? OPD 8. Whether the suit is filed by unauthorised agent of the plaintiff, as alleged? OPD 9. Whether Kaulan Devi has executed a valid Will in favour of the defendant on 11.1.1993 out of her sweet Will, as alleged? OPD. 10. 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 : No Issue No. 2 : No. Issue No. 3 : No. Issue No. 4 : No. Issue No. 5 : No. Issue No. 6 : No. Issue No. 7 : No. Issue No. 8 : No. Issue No. 9 : Yes. Issue No.4 : The suit of the plaintiff is dismissed as per operative part of the judgment." 6. The suit was dismissed by the learned Trial Court by holding that it was not the case of the plaintiff that he was related to Kaulan Devi and was disinherited from the suit land by way of Will in issue. Learned Trial Court also held that defendant had produced on record trustworthy and unimpeachable evidence to establish genuineness and authenticity of the Will dated 11.01.1993. It held that there was nothing suspicious about the execution of the Will in question, and in fact, defendant had proved all the necessary conditions for the valid execution of the Will. Learned Trial Court held that a close scrutiny of Will Ext. DW3/A demonstrated that testator had put her thumb impression upon the same and the document was duly signed by the marginal witnesses. Learned Trial Court held that a close scrutiny of Will Ext. DW3/A demonstrated that testator had put her thumb impression upon the same and the document was duly signed by the marginal witnesses. It held that cross examination of the witnesses of the defendant had not disclosed that Kaulan Devi was of feeble mind and that no Will was executed by her in favour of defendant. Learned Trial Court also held that undoubtedly the execution of Will Ext. PW2/A, which was executed by the testator in favour of the plaintiff, also stood proved, however, as the Will in favour of defendant dated 11.01.1993 was the last Will, therefore, it was the defendant who had become owner in possession of the entire estate of Kaulan Devi. Learned Trial Court also held that as mutations in issue were sanctioned on the basis of Will Ext. DW3/A, which was duly proved to be the last Will of the testator, therefore, it could not be said that the attestation of the mutations was bad in law. Learned Trial Court also held that plaintiff had failed to prove that he was the owner in possession of the suit land, and in fact, plaintiff was a stranger as far as the suit land was concerned and he had no right over the same. 7. In appeal, the findings so returned by the learned Trial Court were upheld. Learned Appellate Court while dismissing the appeal filed by the plaintiff held that it stood duly proved on record that Will Ext. DW3/A, dated 11.01.1993 was the last and final Will of deceased Kaulan Devi which was executed in favour of the defendant. Learned Appellate Court further held that defendant was entitled to succeed to the estate of deceased Kaulan Devi on the strength of the said Will and the mutations which stood attested in his favour on the basis of said Will were legal mutations. Learned Appellate Court also held that the findings recorded by the learned Trial Court were based on proper appreciation of evidence on record as also the legal provisions and the same did not call for any interference. 8. Feeling aggrieved, the appellant/plaintiff has filed this appeal, which was admitted on 29.02.2008, on the following substantial questions of law:- "(i). Since both the wills have been held to be genuine and valid by the Ld. First appellate Court and will Ext. 8. Feeling aggrieved, the appellant/plaintiff has filed this appeal, which was admitted on 29.02.2008, on the following substantial questions of law:- "(i). Since both the wills have been held to be genuine and valid by the Ld. First appellate Court and will Ext. PW2/A is the registered will, whether presumption of genuineness is attached to registered will in view of section 60 of Registration Act. (ii) Whether the will Ext. DW3/A dated 11.10.1993 can be held to be valid and genuine will as the same had been executed within 4 months of the execution of will Ext. PW2/A dated 21.09.1993 and there is no mentioned of execution of earlier will. (iii) Whether the Will Ext. DW3/A is the result of fraud, misrepresentation of facts and surrounded by suspicious circumstances and have been prepared just to grab the land in question. 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. Learned Senior Counsel appearing for the appellant in support of substantial questions of law has argued that judgments and decree passed by learned Courts below are liable to be quashed and set aside because both the learned Court below have erred in not appreciating that Will Ext. DW3/A was a result of fraud and misrepresentation and same was shrouded with suspicious circumstances as same was purportedly executed shortly after the earlier Will. No other point was argued. 11. On the other hand, learned Counsel for the respondent has argued that there was no infirmity with the judgments and decrees passed by the learned Courts below. He argued that simply because the subsequent Will was executed within four months of the earlier Will, the same did not lead to the inference that subsequent Will was a forged Will or was a result of any misrepresentation. He further argued that in law there is no requirement that the testator has to refer to any previous Will executed by him/her in case he/she subsequently executes a Will. 12. In the present case, there are concurrent findings returned by both the learned Courts below against the plaintiff and in favour of the defendant that Will dated 11.01.1993, Ext. DW3/A was a valid and genuine Will. 12. In the present case, there are concurrent findings returned by both the learned Courts below against the plaintiff and in favour of the defendant that Will dated 11.01.1993, Ext. DW3/A was a valid and genuine Will. A perusal of the record of the case demonstrates that in order to prove the said Will, defendant besides himself, examined DW2 Bikham Ram, scribe of the Will, as also DW3 Roshan Lal and DW4 Ishwar Dass, who were the marginal witnesses to the Will Ext. DW3/A. A perusal of the statement of these three witnesses demonstrates that they have unequivocally stated that Will was executed on 11.01.1993 at the behest of testator Kaulan Devi. The scribe after writing the Will as per the wish of Kaulan Devi, had read over the same to her and the testator appended her signatures upon the same after understanding the contents thereof. It is also apparent from the statements of the said three witnesses that thereafter marginal witnesses had appended their signatures upon the Will in issue. These facts clearly demonstrate that Will dated 11.01.1993 Ext. DW3/A stood proved on record to have been executed strictly in accordance with law. During the course of arguments, learned Counsel for the appellant could not draw the attention of the Court to any evidence on record from which it could be inferred that Will Ext. DW3/A was a result of fraud. Now when one peruses the plaint filed by the appellant, para 10 thereof demonstrates that the stand of the plaintiff before the learned Trial Court was that deceased Kaulan Devi had not executed any Will dated 11.01.1993 in favour of defendant and said Will was result of fraud and mis-representation. When the statement of the plaintiff categorically was that no Will was executed by Kaulan Devi in favour of the defendant, then the onus was upon the plaintiff to have had produced cogent evidence on record to demonstrate that the Will in issue was a forged Will. Plaintiff has miserably failed to do so. On the other hand, defendant has led cogent evidence on record to prove that Will Ext. DW3/A was duly executed by the testator in favour of the defendant. Execution of the Will stands duly proved by the scribe as also two marginal witnesses to the Will in issue. Plaintiff has miserably failed to do so. On the other hand, defendant has led cogent evidence on record to prove that Will Ext. DW3/A was duly executed by the testator in favour of the defendant. Execution of the Will stands duly proved by the scribe as also two marginal witnesses to the Will in issue. In these circumstances, it cannot be said that learned Courts below have erred in coming to the conclusion that Will dated 11.01.1993 was a valid and genuine Will. As far as the execution of the said Will within four months of the earlier Will by deceased Kaulan Devi is concerned, there is no law which prevents the testator from doing so. Similarly, in law, it is not necessary that in case a subsequent Will has been executed by the testator, then, in all circumstances, in the subsequent Will, reference has to be made of any previous Will, which might have been executed by the testator. Here, it is a peculiar case where neither plaintiff nor the defendant were related to Kaulan Devi. Thus, it is not a case where it could be said that there were suspicious circumstances surrounding the Will as by way of execution of the same, the natural successor stood disinherited from the property of the testator. As neither the plaintiff nor the defendant were in any manner related to Smt. Kaulan Devi, therefore, in this peculiar circumstance, if there is no reference of the previous Will in subsequent Will executed by Kaulan Devi, the same will not render the subsequent Will to be bad in law, especially when the specific stand of the plaintiff, as I have already mentioned hereinabove, was that no Will whatsoever was executed by Smt. Kaulan Devi in favour of the defendant and the Will being relied upon by the defendant was a forged Will, which the plaintiff miserably failed to prove. 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 accordingly. Pending miscellaneous applications, if any, also stand disposed of. No order as to costs.