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Himachal Pradesh High Court · body

2019 DIGILAW 259 (HP)

Om Prakash v. Vidya Sagar

2019-03-13

AJAY MOHAN GOEL

body2019
JUDGMENT : AJAY MOHAN GOEL, J. 1. By way of this appeal, appellants/plaintiffs have challenged the judgment and decree passed by the Court of learned District Judge, Kullu, in Civil Appeal No. 55 of 2005/8 of 2007, decided on 11.10.2007, vide which learned Appellate Court while dismissing the appeal filed by the present appellants, has upheld the judgment and decree passed by the Court of learned Civil Judge (Senior Division), Lahaul & Spiti at Kullu, dated 31.05.2005, whereby said Court has dismissed the suit filed for declaration and injunction filed by the appellants/plaintiffs. 2. This appeal was admitted on 05.12.2008 on the following substantial question of law:- “Whether the courts below have erred by not appreciating the provision of law relating to Will when the executor has himself explain in Will it self regarding its execution, whereby vitiating the judgment and decree.?” 3. Brief facts necessary for adjudication of this appeal are as under:- Appellants/plaintiffs (hereinafter referred to as ‘plaintiffs’) filed a suit for declaration and injunction against the respondents/defendants (hereinafter referred to as ‘defendants’) to the effect that Jagat Ram son of Lotam Chand, who was the real uncle of plaintiffs and defendants No. 2 and 3 and real brother of defendant No. 1, was the owner of the suit land measuring 34-8-9 bighas in Phati Kharahal Kothi Kais, Tehsil and District Kullu. Jagat Ram out of love and affection had executed a Will dated 14.10.1996 in favour of plaintiffs vide which he had bequeathed his entire estate to them. After the death of Jagat Ram, plaintiffs were in possession of his entire estate. In June, 2001, plaintiff No. agricultural loan. It is then that he came to know that defendant No. 1 at the back of the plaintiffs in connivance with revenue officials had got mutation No. 8240 of Phati Kharahal attested in favour of plaintiffs as also defendants with regard to estate of deceased Jagat Ram. According to the plaintiffs, mutation No. 8240 dated 27.1.1997 warranted cancellation and the entire estate of deceased Jagat Ram was required to be mutated in their name. They filed the suit that they be declared to be owners-in-possession of the estate of deceased Jagat Ram on the basis of Will dated 18.10.1996 and mutation No. 8240, dated 27.1.1997 be declared null and void. They filed the suit that they be declared to be owners-in-possession of the estate of deceased Jagat Ram on the basis of Will dated 18.10.1996 and mutation No. 8240, dated 27.1.1997 be declared null and void. Decree of permanent prohibitory injunction was also sought against the defendants for restraining them from interfering with the possession of the plaintiffs over the suit land. 4. The suit was contested by the defendants who inter alia took the plea that no Will was ever executed by Jagat Ram in favour of plaintiffs and the Will being propounded by the plaintiffs was a forged and fictitious Will. According to the defendants, Jagat Ram used to live with defendant No. 1 and the relations between plaintiffs and deceased Jagat Ram were quite strained. The alleged Will was forged and set up by plaintiffs with an ulterior motive. As per the defendants, after the death of Jagat Ram his entire estate was inherited by defendant No. 1 as owner and plaintiffs had no concern with the same. According to the defendants, the mutation to the extent half share of the estate of Jagat Ram stood mutated in favour of plaintiffs was bad. 5. On the basis of pleadings of the parties, learned trial Court framed the following issues:- “1.Whether late Sh. Jagat Ram executed a valid Will dated 14.10.1996 in favour of the plaintiffs s alleged? OPP 2. Whether the plaintiffs are entitled to the declaration prayer for? OPP 3. Whether the plaintiffs are entitled to the permanent prohibitory injunction as claimed? OPP 4. Whether the plaintiffs have a cause of action? OPP 5. Whether the plaintiffs have the locus-standi to sue? OPP 6. Whether the suit is not maintainable in the present form? OPD 7. Whether the suit is time barred? OPD 8. Whether the plaintiffs are estopped from filing the suit by their act and conduct? OPD 9. Whether the suit is bad for mis-joinder of the parties, as alleged? OPD 10. Whether the defendant No. 1 is the sole heir of late Sh. Jagat Ram as alleged, if so, its effect? OPD 11. Relief.” 6. The issues so framed were answered by the learned trial Court in the following manner:- “Issue No.1 : No. Issue No. 2 : No. Issue No. 3 : No. Issue No.4 : No Issue No. 5 : No. Issue No. 6 : Yes. Jagat Ram as alleged, if so, its effect? OPD 11. Relief.” 6. The issues so framed were answered by the learned trial Court in the following manner:- “Issue No.1 : No. Issue No. 2 : No. Issue No. 3 : No. Issue No.4 : No Issue No. 5 : No. Issue No. 6 : Yes. Issue No. 7 : Not pressed. Issue No. 8 : Not pressed. Issue No. 9 : Not pressed. Issue No. 10 : Yes Issue No. 11 : Suit dismissed vide operative portion of the judgment.” 7. Vide its judgment and decree dated 31.05.2005, learned Civil Judge (Sr. Divn.) Lahaul & Spiti, at Kullu, dismissed the suit of the plaintiffs. Learned Court held that perusal of Exhibit P-A demonstrated that the same was copy of Will allegedly executed by late Jagat Ram. It held that it was not the case of the plaintiffs that the original Will had been lost or the same was in possession of their adversaries. It held that even the permission of the Court to prove the copy of the Will was not taken by the plaintiffs. It further held that even if Ext. P-A was considered to be the original Will, yet the same was shrouded with grave suspicious circumstances. Learned lower Court thus concluded that in the absence of original Will having been produced/exhibited by the plaintiffs and further the copy thereof being shrouded by suspicious circumstances, the plaintiffs were not entitled to any relief and in fact there was no cogent and convincing evidence to this effect also that after the expiry of Jagat Ram, the suit property was under the possession of the plaintiffs. Learned Court below also returned the findings that as it was the admitted case of the parties that Jagat Ram had died issue-less and as he had not left behind any Class-1 heir, his property will devolve by way of natural succession upon Class-II heirs. It further held that defendant No. 1 being real brother of the deceased-owner would inherit the estate of Jagat Ram to the exclusion of plaintiffs and defendants No. 2 and 3 being Class-II heir. 8. Feeling aggrieved, plaintiffs filed an appeal. 9. It further held that defendant No. 1 being real brother of the deceased-owner would inherit the estate of Jagat Ram to the exclusion of plaintiffs and defendants No. 2 and 3 being Class-II heir. 8. Feeling aggrieved, plaintiffs filed an appeal. 9. Record demonstrates that during the pendency of the appeal, an application was filed by plaintiffs under Order 41, Rule 27 of the Code of Civil Procedure to bring on record the original Will, which was allowed by the learned Appellate Court on 19.01.2006. It directed the learned trial Court to record evidence in support of the original Will and thereafter return the record after recording the evidence. 10. Record further demonstrates that in compliance to the order passed by learned Appellate Court, learned lower Court recorded the statements of some of the witnesses. 11. On merit, learned Appellate Court after taking on record the original Will as also the subsequent statements of the parties, which were recorded before the learned lower Court while concurring with the learned trial Court, dismissed the appeal by inter alia holding that the Will was shrouded by suspicious circumstances as there were contradictions in the statements of material witnesses. 12. Feeling aggrieved, the plaintiffs have filed this appeal. 13. Mr. Jiya Lal Bhardwaj, learned Counsel for the appellants has argued that the judgments passed by both the learned Courts below are not sustainable in the eyes of law as the learned Courts have erred in not appreciating that there were no material contradictions in the statements of material witnesses and discrepancies, if any, were likely to occur as there was a considerable gap between the date when the Will was executed and when these witnesses appeared in the Court for the purpose of recording their respective statements. He further submitted that the scribe of the Will as also the marginal witnesses were respected persons of the locality and there was no reason to disbelieve their version. As per Mr. Bhardwaj, there was no need to indicate in the Will as to why defendant No. 1 was excluded by the testator because the very purpose of the Will was to bequeath the property in a manner which was different from the mode of natural succession. As per Mr. Bhardwaj, there was no need to indicate in the Will as to why defendant No. 1 was excluded by the testator because the very purpose of the Will was to bequeath the property in a manner which was different from the mode of natural succession. He further argued that once the beneficiaries had produced the scribe as also the marginal witnesses, then the Court could not have had held the Will to be shrouded with suspicious circumstances and the Will being a pious document ought to have been upheld for all intents and purposes. As per him, the execution of Will stood duly proved and findings returned by the learned Court to the contrary were liable to be set aside. 14. On the other hand, Mr. Bimal Gupta, learned Senior Counsel appearing for respondent No. 1 while supporting the findings returned by both the learned Courts below has argued that learned Courts have rightly held the Will to be shrouded with suspicious circumstances as the same was a fabricated document. According to Mr. Gupta, no Will whatsoever was executed by deceased Jagat Ram and the Will propounded by the plaintiffs was a forged and fabricated document and was correctly ignored by the learned Courts below. He has further argued that simply because the scribe and marginal witness entered the witness box in support of execution of the Will, this does not ipso facto means that the Will in question is a valid Will. As per Mr. Gupta, statements made by the scribe as also the marginal witnesses clearly and categorically demonstrate that the Will was a forged and fabricated document as there were material contradictions in their respective statements with regard to the execution of the Will which have remained unexplained. Besides, as per him active participation of the beneficiaries in the preparation of the forged document was also duly proved. He prays that as there is no merit in the appeal, the same be dismissed with costs. 15. I have heard learned Counsel for the parties at a considerable length and also gone through the record of the case as also the judgments and decrees passed by the learned Courts below. 16. He prays that as there is no merit in the appeal, the same be dismissed with costs. 15. I have heard learned Counsel for the parties at a considerable length and also gone through the record of the case as also the judgments and decrees passed by the learned Courts below. 16. The substantial question of law which this Court has to answer is as under:- “Whether the courts below have erred by not appreciating the provision of law relating to Will when the executor has himself explain in Will it self regarding its execution, whereby vitiating the judgment and decree.?” 17. Copy of the purported Will of deceased Jagat Ram is on record as Ext. P-A whereas the original of the said purported Will is on record as E-A. It is not in dispute that the Will propounded by the plaintiffs is dated 14.10.1996. It is also not in dispute that testator of the Will, i.e. late Shri Jagat Ram died on 18.10.1996, i.e. four days after the alleged Will was executed. It is a matter of record that mutation of the estate of deceased Jagat Ram was entered in favour of plaintiffs and defendants on 27.01.1997 vide mutation No. 8240. It is also a matter of record that plaintiff No. 1 was present when the mutation was attested and one of the marginal witness to the purported Will namely Shri Ashok Kumar was also present at the time of attestation of the mutation. It is also a matter of record that at the time when the said mutation was attested, no reference of Will was made by the plaintiffs and it was stated by marginal witness Ashok Kumar before the revenue Authorities that plaintiffs and defendants were legal heirs of the deceased. It is also a matter of record that mutation proceedings were not assailed by the plaintiffs before filing of the suit, out of which, the present appeal has arisen and that too in the year 2002. 18. Before I proceed any further it is relevant to refer to para 7 of the plaint, which reads as under:- “7. That after the death of Jagat Ram the plaintiffs are in possession of his entire estate. 18. Before I proceed any further it is relevant to refer to para 7 of the plaint, which reads as under:- “7. That after the death of Jagat Ram the plaintiffs are in possession of his entire estate. In June 2001 the plaintiff No. 1 required copies of jamabandi to raise a agricultural loan and came to know that the defendant No. 1 in the absence of plaintiffs in connivance with the revenue officials has got the mutation No. 8240 of Phati Kharahal attested in favour of the parties to this lis though the respondents are not in possession of any share of the estate of deceased Jagat Ram.” 19. As per averments made in the plaint, the plaintiffs wanted the Court to believe that after the death of Shri Jagat Ram, till June 2001, plaintiffs were not aware about the attestation of mutation No. 8240 dated 27.01.1997. These pleadings are palpably incorrect and it appears that said story was introduced in the plaint to bring the suit within limitation. This I say for the reason that plaintiffs could not have pleaded ignorance qua the factum of attestation of mutation dated 27.1.1997 of the estate of deceased Jagat Ram because this mutation was attested in the presence of plaintiff No. 1 Om Prakash. No convincing reply has come forth from the appellants as to why the purported Will was not relied upon by the plaintiffs at the time when mutation No. 8240 was attested in their presence on 27.1.1997 by the revenue authorities. The only inference which can be drawn by the Court in the absence of there being any cogent explanation on behalf of the appellants is that as on the date when the said mutation was attested, there existed no Will executed by late Shri Jagat Ram in their favour. 20. While holding that the Will propounded by the plaintiffs was shrouded with suspicious circumstances, learned lower Court as also learned Appellate Court have held that there were contradictions in the statements of the material witnesses which shroud the Will with suspicion. 21. 20. While holding that the Will propounded by the plaintiffs was shrouded with suspicious circumstances, learned lower Court as also learned Appellate Court have held that there were contradictions in the statements of the material witnesses which shroud the Will with suspicion. 21. It is pertinent to mention that the statements of the scribe as also the marginal witnesses were recorded (a) before the learned trial Court when the civil suit was pending there and (b) by the learned lower Court upon the directions issued by the learned Appellate Court after it allowed the purported original Will to be taken on record. 22. Learned Appellate Court has returned the findings that not only were there contradictions in the statements of the material witnesses, but there were contradictions in the two statements recorded of the same witness too. 23. In order to ascertain as to whether said findings returned by the learned Appellate Court were born out from the records of the case or were perverse, this Court with the assistance of learned Counsel for the parties has carefully gone through the statements of the plaintiffs’ witnesses. 24. First I will refer to the statements made by scribe i.e. PW2 Baldev Krishan. He initially deposed in the Court on 17.11.2004 that copy of Will Ext. P-A was entered in his register at serial No. 423, copy of which he produced as Ext. P-B. In his cross examination, he deposed that the original Will was not shown to him in the Court. He further deposed that Ext. P-A was prepared by him in the presence of plaintiff Om Prakash. He also admitted in his cross examination that ink used for entry made at serial No. 423 was different from the one used for entries made at serial No. 422 and 424. Statement of this witness was recorded for the second time in the Court on 27.02.2006. A perusal of his subsequent cross examination demonstrates that he admitted therein that there was no entry in his register with regard to preparation of copy of the original Will. He also admitted it to be correct that entries made in his register from Sr. No. 385 to 422 and 424 to 430 were in the same ink whereas entry made at Sr. No. 423 is in different ink. He justified it by saying that he used to keep 2-3 pens. He also admitted it to be correct that entries made in his register from Sr. No. 385 to 422 and 424 to 430 were in the same ink whereas entry made at Sr. No. 423 is in different ink. He justified it by saying that he used to keep 2-3 pens. He stated that plaintiff Om Prakash was present at the time when the Will was scribed by him. He also admitted that the date at Sr. No. 424 of the Register had been altered by way of cutting from 13.10.1996 to 14.10.1996. He also admitted that the ink with which the cutting was carried out, was different from the ink otherwise used for making entry No. 424. 25. The two marginal witnesses to the purported execution of the Will are PW3 Smt. Prabha Devi and PW4 Shri Ashok Kumar. 26. Statement of PW3 Smt. Prabha Devi was initially recorded on 17.11.2004. In her cross examination, she stated that in Ext. P-A, her signatures were at mark ‘A’ and Mark ‘B’. She further stated that except appending her signatures on the two pages of Ext. P-A, she had not signed any other paper on 14.10.1996. She admitted it to be correct that deceased Jagat Ram was having cordial relations with the defendants. This witness for the second time entered the witness box on 27.10.2006. She tendered in evidence her evidence by way of affidavit wherein it is mentioned that on 14.10.1996, late Jagat Ram got scribed Will Ext. E-A from document writer Baldev Krishan and she appended her signatures alongwith Ashok Kumar as attesting witness upon the same. In her subsequent cross examination, she admitted that in her earlier statement recorded on 17.11.2004, she had deposed that on 14.10.1996, she had signed only two pages of Ext. P-A and nothing else. She further stated in her cross examination that immediately after appending her signatures on Ext. E-A, she had left as Jagat Ram had asked her to leave. She also stated that in her presence no discussion about registration of the Will took place. 27. PW3 Ashok Kumar initially entered the witness box on 17.11.2004 and tendered his evidence by way of affidavit. He stated that he had appended his signatures on Will Ext. P-A on 14.10.1996 as attesting witness, which Will was executed by Jagat Ram. She also stated that in her presence no discussion about registration of the Will took place. 27. PW3 Ashok Kumar initially entered the witness box on 17.11.2004 and tendered his evidence by way of affidavit. He stated that he had appended his signatures on Will Ext. P-A on 14.10.1996 as attesting witness, which Will was executed by Jagat Ram. In his cross examination, he admitted that mutation of the estate of Jagat Ram on 28.1.1997 was entered on the basis of his identification. He admitted it to be correct that at the time of the attestation of the mutation, he had stated that Vidya Sagar, Om Prakash, Rajender Praksh, Shanti and Inder were the legal heirs of Jagat Ram. He further stated in his cross examination that copy of the Will was prepared for the purpose of registration. This witness deposed before the Court for the second time on 27.2.2006. In the affidavit filed by him by way of evidence, he stated that on 14.10.1996, Jagat Ram executed Will E-A. It was scribed by document writer Baldev Krishan. He signed the same as a marginal witness in presence of Jagat Ram. In his subsequent cross examination recorded on 17.11.2004, he denied that he had referred to defendant No. 1 as legal heir of deceased Jagat Ram at the time of mutation he feigned ignorance that on 17.11.2004, he had deposed in the Court that he had introduced Vidya Sagar etc. as legal heirs of Jagat Ram. He also denied that Jagat Ram had not executed any Will. 28. Now when we peruse the initial statements of the two marginal witnesses and compare them with the subsequent statement of all these witnesses, one thing which is clearly evident is this that there is no mention of Ext. E-A i.e. the purported original Will in the statement of either of the witnesses. They deposed only about their attesting Ext. PA which turned out to be a copy of the purported Will. In fact, marginal witness Prabha Devi categorically stated in her cross examination that she had not appended her signatures on any paper except the two pages of Ext. P-A on 14.10.1996. This demonstrates that the subsequent deposition made by them later on that they had also appended their signatures on Ext. E-A, the purported original Will is an afterthought. In fact, marginal witness Prabha Devi categorically stated in her cross examination that she had not appended her signatures on any paper except the two pages of Ext. P-A on 14.10.1996. This demonstrates that the subsequent deposition made by them later on that they had also appended their signatures on Ext. E-A, the purported original Will is an afterthought. As far as the other marginal witness Ashok Kumar is concerned, in his subsequent cross examination, he has resiled from the statement he had made in the earlier cross examination of his before the learned trial Court. The conduct of both the said two marginal witnesses thus creates doubt over their credibility as a witness and in my considered view, their statements do not inspire any confidence. 29. Now, these contradictions have to be seen vis-a-vis the statement of the document writer i.e. PW2 Baldev Krishan, who has admitted in his cross examinations that in the register maintained by him whereas entries of the documents scribed by him at serial No. 385 to 422 and 424 to 420 were recorded in same ink however entry at serial No. 423 which pertained to the purported Will in question was in different ink. The explanation given by him that he used to keep 2-3 pens does not inspires confidence because had that been the case then it would not have had been only one solitary entry in different ink and that too pertaining to the purported Will in dispute. Not only this, the cutting which was made in the subsequent entry at Sr. No. 424 to post date the same, is incidentally with the same ink with which entry No. 423 has been made. All this is suggestive of the fact that there has been interpolation made with the Register by PW2 in order to justify the existence of a document which otherwise was not validly existing. 30. In the background of the discussion held hereinabove, it cannot be said that the findings returned by both the learned Courts below and especially the learned Appellate Court that the Will was shrouded with suspicious circumstances, are perverse and not borne out from the record of the case. 30. In the background of the discussion held hereinabove, it cannot be said that the findings returned by both the learned Courts below and especially the learned Appellate Court that the Will was shrouded with suspicious circumstances, are perverse and not borne out from the record of the case. Further it cannot be said that the learned Courts below have erred by not appreciating the provision of law relating to Will because in the peculiar facts of this case it is clearly borne out from the record that the Will in fact was shrouded with suspicious circumstances and simply because the scribe and marginal witnesses of the purported Will entered the witness box to prove the existence of the Will, the same will not make said document a legal and valid document. Substantial question of law is answered accordingly. In view of above discussion, as there is no merit in the present appeal, the same is accordingly dismissed with costs. Pending miscellaneous application(s), if any, also stand disposed of.