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2021 DIGILAW 170 (HP)

Vikash Sharma And Anr v. Sh Dulo Ram

2021-03-22

SURESHWAR THAKUR

body2021
JUDGMENT Sureshwar Thakur, J. - The plaintiffs, through, instituting Civil Suit No. 307-I/2010, before the learned Civil Judge (Jr. Divn.), Jogindernagar, District Mandi, H.P., claimed rendition, of, a declaratory decree, for annulment of will Ex.DW3/A, and, also for quashing the consequent thereto mutation No.79, as, became attested, vis-a-vis, the defendants. The plaintiffs also claimed, the further relief of permanent prohibitory injunction, being pronounced against the propounders, of, the Will, Ex.DW3/A. The learned Civil Judge concerned, on 16.2.2015, made a decision, wherethrough, he proceeded to grant the afore claimed decrees qua the plaintiffs. The aggrieved defendants constituted thereagainst, Civil Appeal No. 8 of 2015, before the learned First Appellate Court, and, the latter Court, dismissed the afore appeal through a verdict made on 1.9.2015. 2. The defendants constitute thereagainst the extant appeal before this Court. 3. When the appeal came up for admission, this Court, on 17.04.2016, hence, admitted the appeal instituted by the defendants/appellants, against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial question of law:- 1. Whether on account of mis-appreciation of the pleadings and law and also misreading of the oral as well as documentary evidence available on record, the findings recorded by courts below are erroneous and, as such, the judgment and decree impugned in this appeal being perverse and vitiated is not legally sustainable? Substantial question of Law No.1: 4. The contentious testamentary disposition, as, embodied in Ex.DW3/A, is, a registered testamentary disposition. The afore exhibit, is, the last testamentary disposition of the deceased testator, and, it prevails upon, any prior thereto testamentary disposition(s), as made by the deceased testator. 5. The discharging onus for proving the valid, and, due execution of Ex.DW3/A, was cast upon the propounders, of the Will, who are the defendants, in, Civil Suit No. 307-1/2010, and, the appellants herein. 6. Ex. DW3/A is attested by two marginal witnesses, namely, one Kashmir Singh, and, one Kali Dass. However, only one amongst the two afore, inasmuch, as, Kali Dass stepped into the witness box, as, DW-2, for proving the valid, and, due execution, of, Ex.DW3/A, by the deceased testator. 7. The mandate borne in Section 68, of, the Indian Evidence Act, 1872, provisions whereof stand extracted hereinafter:- "68. Proof of execution of document required by law to be attested. 7. The mandate borne in Section 68, of, the Indian Evidence Act, 1872, provisions whereof stand extracted hereinafter:- "68. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: [Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]" does not enjoin, the leading into the witness box, by the propounders, of, the Will/testamentary disposition, of, both the marginal witnesses thereto, (i) rather the leading into the witness box, of only one, amongst the two, is sufficient, (ii) yet subject, to the testification made by the marginal witness concerned, withstanding the mandate, of, Section 63, of, the Indian Succession Act, provisions whereof also stand extracted hereinafter:- "63. Execution of unprivileged Wills. Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules: (a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary." 8. Consequently, it is to be discerned, from a reading of the testification, made by one Kali Dass, who stepped into the witness box as DW-2, whether, he had seen the deceased testator signaturing, the, Will, and, also that he had done likewise, in, the presence of the deceased testator. However, the simultaneous presence, of, both the marginal witnesses to Ex.DW3/A, is not, a mandatory requirement under Section 63 of the Indian Evidence Act. A reading of the testification, occurring in the examination-in-chief of Kali Dass, does not disclose, that the deceased testator, had at the pre-registration stage of Ex.DW3/A, hence, made in his presence, his signatures thereon. Obviously, hence, he has been unable to prove that he, at the pre-registration stage, of Ex.DW3/A, rather seen the deceased testator to make his signatures thereon, nor obviously, he has lent proof, to the factum of, his too, thereat, and, in the presence of the deceased testator, hence making, his signatures thereon. 9. Be that as it may, in his cross-examination, he has admitted that he had before the registering officer concerned, appended his signatures, on Ex.DW3/A. 10. Both the learned courts below, emphasised upon the factum of DW-2 omitting to, in his examinationin-chief, make, a, candid testification, vis-a-vis, his, at the pre-registration stage, hence, sighting the deceased testator to signature Ex. DW3/A, and, also, upon, his obviously omitting to testify qua his thereat appending, his signatures on Ex.DW3/A, in the presence, of, the deceased testator. Both the learned courts below, emphasised upon the factum of DW-2 omitting to, in his examinationin-chief, make, a, candid testification, vis-a-vis, his, at the pre-registration stage, hence, sighting the deceased testator to signature Ex. DW3/A, and, also, upon, his obviously omitting to testify qua his thereat appending, his signatures on Ex.DW3/A, in the presence, of, the deceased testator. Furthermore, both the learned Courts below concluded, that the requirement, of, law, that the testifying attesting witness, being legally obliged to rather make the afore echoings, in his examination-inchief, and, which obligation, he did not discharge, therefore the mandate of Section 63 of the Indian Succession Act, remaining unproven, and, further concluded, that Ex.DW3/A, also remaining unproven by its propounders, to be validly, and, duly executed, by the deceased testator. 11. However, for the reasons to be assigned hereinafter, the afore made conclusions are infirm. (I) the afore conclusions would warrant validation, only when, the propunders make dependence(s), upon, an unregistered testamentary disposition. However, when the propounders depended, upon, a registered testamentary disposition, and, when the marginal witness thereto, rather makes an unimpeached testification, in his cross-examination, that he had made his signatures thereon, in the presence of the registering officer, besides when in contemporaneity thereto, the deceased testator had also made his signatures thereon, (ii) thereupon, the onus, vis-a-vis, the proof, of, valid, and, due execution of Ex.DW-3/A becomes completely, and, satisfactorily discharged, by the propounders, of, the Will. 12. The afore made inference, that one Kali Dass had along with the deceased testator, made his signatures, before the registering officer concerned, gains immense momentum (i) from no elicitations, being attempted to be made, by the counsel for the plaintiffs, during the course of his making cross-examination, upon, Kalli Dass, hence, suggestive that both, the deceased testator, and, Kali Dass, had not in their respective presence(s), or/and, had not conjointly made their respective signatures hence before the Sub Registrar concerned. The effect of lack, of, afore elicitation(s), is that, it mobilises (ii) an inference that both the deceased testator and Kali Dass, had made, their conjoint appearances, and, also conjoint signatures before the Sub Register concerned, (iii) and, further that the deceased testator had been seen by Kali Dass, to make his signatures, upon, Ex.DW3/A, in the presence of the registering officer, (iv) and, that Kali Dass had also likewise before the registering officer concerned, and, in the presence of the deceased testator hence had made his signatures, upon, Ex.DW3/A. Conspicuously, vis-a-vis, a registered testamentary disposition, the afore made inference, further coaxes this Court to draw a conclusion, that the requirement of Section 63 of the Indian Succession Act, inasmuch, as, (a) the testifying attesting witness thereto, proving his sighting the deceased testator to make his signatures on Ex.DW3/A; (b) and also the attesting witness(es) likewise in the presence of the deceased testator, provenly making his signatures thereon, becoming completely, and, satisfactory established. 13. In sequel, the concurrent findings recorded by both the learned courts below, do obviously, warrant interference, as, both the learned courts below, remained oblivious to the factum, of, Ex.DW3/A, being a registered testamentary disposition. 14. The sanctity of the statutory endorsements, made by the Registering Officer, on Ex.DW3/A, is, both grave, and, creditworthy. The statutory endorsements are made with the seal and signatures, of, the Registering Officer, hence, ipso facto personify the volitional making of Ex.DW3/A, by the deceased testator, (i) and, also further personify, that only after contents thereof being readover, and, explained, and, also upon theirs being comprehended by the deceased testator, hence the statutory endorsements becoming sealed, and, signatured by the Registering Officer. The making of statutory endorsements, upon, Ex.DW3/A, by the Registering Officer, is, a statutory duty or is a public function, and, thereons, a, rebuttable presumption of truth is carried. Since, the onus to rebut the presumption of truth, as, attached to the making, of, statutory endorsements, by the Sub Registrar concerned, shifted onto the plaintiff, yet the later did not rebut, the efficacy of the presumption of truth, as, attached to the statutory endorsement(s). Since, the onus to rebut the presumption of truth, as, attached to the making, of, statutory endorsements, by the Sub Registrar concerned, shifted onto the plaintiff, yet the later did not rebut, the efficacy of the presumption of truth, as, attached to the statutory endorsement(s). The effect of the plaintiff declining to discharge the onus of disproving the validity, of, the statutory endorsement(s), as, made by the Registering Officer, on Ex.DW3/A, (i) is that conclusivity is to be assigned thereto, (ii) and, the further effect thereof, is, that there was no occasion for both the learned courts below, to decline, to assign probative efficacy thereto. Moreover, hence was also most inappropriate, for both, the learned courts below, to, make a conclusion that the deceased testator, did not hold, the requisite compos mentis. 15. Dehors the above, the propounders of the Will were also under an obligation, to dispel, all the purported suspicious circumstances hence surrounding the execution of Ex.DW 3/A. Both the learned courts below, had assigned, falsity to the recitals carried in Ex. DW3/A, inasmuch, as, the deceased testator being ingratiated with the services rendered to him, by the minor legatees, whereas, given the incapacity of the minor legatees to render services, to the deceased testator, rather rendered the afore recitals to be false. However, even though, the minor legatees are school going children, and, since, they are not infants, nor hence, are incapacitated to render any iota of ingratiating services, to their grand father, (i) thereupon even some iota of ingratiating services, rendered to the deceased testator, by the minor legatees, would be sufficient, (ii) unless evidence became adduced, that there was no occasion for the minor legatees to, in any manner, render any iota of ingratiating services to their grandfather. However, the afore evidence is amiss. Consequently, the, mere factum of the minority of the legatees, did not, per se, render them incapacitated to render in any manner, pleasing services to their grandfather, the maker of Ex.DW3/A, nor hence the afore can be concluded, to be a grave suspicious circumstance, surrounding the execution of Ex.DW3/A. 16. However, the afore evidence is amiss. Consequently, the, mere factum of the minority of the legatees, did not, per se, render them incapacitated to render in any manner, pleasing services to their grandfather, the maker of Ex.DW3/A, nor hence the afore can be concluded, to be a grave suspicious circumstance, surrounding the execution of Ex.DW3/A. 16. Moreover, since, prior to the making of Ex.DW3/A, the deceased testator had executed, a, cancellation deed, Ex.PW3/A, wherethrough, he had canceled a Will made by him on 12.05.1998, vis-a-vis, the propounders, of, Ex.DW3/A, (i) thereupon, it was concurrently concluded by both the learned courts below that Ex.DW3/A, is surrounded with a grave aura of suspicion. However, even if, the deceased testator had taken, to through Ex.PW3/A, rescind an earlier Will executed by him, qua the legatees of Ex.DW3/A, yet he was not barred to make a Will, vis-a-vis, the minor legatees of Ex.DW3/A, (ii) unless the valid, and, due execution of Ex.DW3/A, became not firmly proven by the propunders thereof, inasmuch, as, by the defendants. However, when for the reasons aforestated, the valid, and, due execution of Ex.DW3/A, has been proven, thereupon, the mere factum of his prior thereto, through Ex.PW3/A, canceling a earlier bequest made by him, visa-vis, the propounders of Ex.DW3/A, does not, constitute any valid suspicious circumstances, surrounding the valid, and, due execution of Ex.DW3/A. 17. The above discussion, unfolds, that the conclusions as arrived by the learned first Appellate Court as also by the learned trial Court, are not based, upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court as well as the learned trial Court, have excluded germane and apposite material from consideration. Accordingly, the substantial questions of law are answered in favour of the appellants, and, against the respondents. 18. In view of the above discussion, there is merit in the extant appeal, and, it is allowed. In sequel, the judgements and decrees, rendered by both the learned Courts below, annulling Ex.DW3/A, and, also theirs quashing mutation No. 79, as, attested inconsonance with Ex.DW3/A, are quashed and set aside. Decree sheet be prepared accordingly. Consequently, the suit of the plaintiffs is dismissed. All pending applications also stand disposed of. No order as to costs.