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2025 DIGILAW 388 (HP)

Kailash Singh v. Laxmi Singh

2025-03-18

SATYEN VAIDYA

body2025
JUDGMENT : Satyen Vaidya, J. This regular second appeal has been filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 13.11.2014 passed by the learned Additional District Judge-I, Shimla camp at Rohru in civil appeal No.30-R/13 of 2010 whereby the judgment and decree dated 05.04.2010 passed by the learned Civil Judge (Junior Division), Court No.2, Rohru in Civil Suit No.65-1 of 2009 has been affirmed. 2. The appellants herein are the legal representatives of original defendant Shri Deva Singh. The parties hereafter shall be referred to by the same status as they held before the learned trial Court. 3. The plaintiff Shri Laxmi Singh (respondent herein) and the original defendant Shri Deva Singh were real brothers. On death of their mother Smt. Tipsi on 27.02.2009, a dispute arose inter se the plaintiff and defendant with respect to the inheritance of the estate left behind by her. The defendant claimed entire estate of Smt. Tipsi, except a small portion thereof, on the basis of a Will allegedly executed by Smt. Tipsi in his favour on 27.09.1993 and registered in the office of Sub Registrar, Rohru, District Shimla vide registration No.27-III/93. On the other hand, plaintiff disputed the legality and validity of Will of Smt. Tipsi on the ground that the defendant had procured the same by exercise of fraud and undue influence. The plaintiff alleged that Smt. Tipsi was an illiterate and rustic woman with rural background. The defendant had taken benefit of illiteracy and innocence of Smt. Tipsi and had managed execution of Will. As per the plaintiff, the Will of Smt. Tipsi as propounded by the defendant was not result of free volition and consent of Smt. Tipsi. He further alleged that Smt. Tipsi had equal love and affection for both the sons and she had made declarations on many occasions that after her death both her sons would be entitled to her properties. 4. As per plaintiff he was not having any knowledge of the execution of Will by Smt. Tipsi till her death. It was only after the death of Smt. Tipsi that the defendant produced the Will before the revenue authorities for attestation of mutation in his favour. 4. As per plaintiff he was not having any knowledge of the execution of Will by Smt. Tipsi till her death. It was only after the death of Smt. Tipsi that the defendant produced the Will before the revenue authorities for attestation of mutation in his favour. Plaintiff thereafter allegedly made inquiries and found that the defendant had taken Smt. Tipsi to Chirgaon after convincing her that she had to execute Will in favour of the plaintiff and defendant in equal shares. The Will was scribed in connivance with the scribe of the Will. The scribe instead of reading over and explaining the contents of Will to Smt. Tipsi, simply informed that the Will had been scribed equally in favour of both the sons of Smt. Tipsi. The plaintiff also alleged that even the attesting witnesses were under the impression that the Will was executed in favour of the plaintiff and defendant and it was under this bonafide belief that Smt. Tipsi and the attesting witnesses had signed the said Will. Another allegation was that the contents of Will were not read over and explained to Smt. Tipsi even by the Sub Registrar at the time of registration and she was simply asked as to in whose favour the Will was being executed and her natural reply was that it was being executed in favour of both the sons. 5. The plaintiff also challenged the right of Smt. Tipsi to make testamentary disposition of the property on the ground that it was joint with other co-owners. Another averment made in the plaint is that no such circumstances existed during the life time of Smt. Tipsi, which could have motivated her against the plaintiff. The plaintiff also claimed that during the life time of Smt. Tipsi, she sometimes resided with the defendant and sometimes with the plaintiff. 6. In this backdrop, the plaintiff sought a decree of declaration to the effect that Will dated 27.09.1993 of Smt. Tipsi was illegal, wrong, null, void, ineffective and a sham document being result of misrepresentation amounting to fraud. The plaintiff further sought declaration that he was entitled to inherit the estate of Smt. Tipsi along with the defendant in equal shares. In this backdrop, the plaintiff sought a decree of declaration to the effect that Will dated 27.09.1993 of Smt. Tipsi was illegal, wrong, null, void, ineffective and a sham document being result of misrepresentation amounting to fraud. The plaintiff further sought declaration that he was entitled to inherit the estate of Smt. Tipsi along with the defendant in equal shares. A decree of permanent prohibitory injunction was also sought to restrain the defendant from taking any benefit of execution of Will either by getting the revenue entries changed or by alienating or encumbering the suit property. 7. The defendant contested the suit. He alleged that Smt. Tipsi had been looked after by him for about 30 years when she continuously resided with him and the Will was voluntarily executed by Smt. Tipsi in respect of her entire land except one field known as “Pannu” and 30 gms. of gold. The defendant claimed the Will to have been executed by Smt. Tipsi in his favour out of natural love and affection and also on account of services rendered by him to his deceased mother. 8. It was further alleged by the defendant that a private partition had already taken place between the parties on 16.12.1979 and since then the plaintiff and the defendant had been residing separately. Each of them was possessing and managing his own share. As regards the share of Smt. Tipsi, the same was also alleged by the defendant to be possessed by and managed by him after private partition. According to the defendant, the plaintiff was aware about the execution of Will throughout. 9. Defendant denied the allegations of conspiracy, fraud and undue influence. It was averred that Smt. Tipsi had executed the registered Will with her free consent. As per defendant, the contents of Will were read over by Sub Registrar and the same were admitted to be correct by Smt. Tipsi. The defendant further submitted that Smt. Tipsi had admitted the contents of the Will to be correct after putting her thumb impression in presence of attesting witnesses, namely, S/Shri Ram Lal and Saran Dass, who also signed the said Will as attesting witnesses after witnessing Smt. Tipsi putting her thumb impression over the same. The claim of cordial relations between the plaintiff and Smt. Tipsi was also denied. 10. Learned trial Court framed the following issues on 03.08.2009: “1. The claim of cordial relations between the plaintiff and Smt. Tipsi was also denied. 10. Learned trial Court framed the following issues on 03.08.2009: “1. Whether the plaintiff is entitled for the relief of declaration to the effect that the Will bearing registration No.27-III/93 dated 27.09.1993 executed by deceased Smt. Tipsi Devi is illegal, wrong null, void ineffective and a sham document? ...OPP 2. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction, as prayed? ...OPP 3. Whether the plaintiff is estopped from filing the present suit by his act, conduct and acquiescence? ...OPD 4. Whether the present suit is hit by Section 41 of the Specific Relief Act, as prayed? ...OPD 5. Whether the suit of the plaintiff is not properly valued for the purposes of court fee and jurisdiction ...OPD 6. Whether the suit for injunction without possession is not maintainable? ...OPD 7. Relief.” 11. Issues No.1 and 2 were decided in affirmative and rest of the issues were decided in negative. Accordingly, the suit of the plaintiff was decreed declaring Will dated 27.09.1993 of Smt. Tipsi as null and void. A decree of permanent prohibitory injunction was also passed against the defendant restraining him from either getting the revenue entries changed on the basis of Will or from alienating, transferring or creating charge upon the suit property. 12. The defendant assailed the judgment and decree passed by the learned trial Curt by way of appeal under Section 96 of the Code of Civil Procedure, but remained unsuccessful as the learned first appellate Court also affirmed the decree passed by the learned trial Court. 13. The instant appeal has been admitted on the following substantial question of law on 29.05.2015: “Whether on account of misappreciation of the pleadings, misreading and misconstruction of the oral as well as documentary evidence available on record and facts of the case, the findings recorded by both Courts below are erroneous and as such the judgment and decree impugned in the main appeal being perverse and vitiated is not legally sustainable?” 14. I have heard learned counsel for the parties and have also gone through the record carefully. 15. I have heard learned counsel for the parties and have also gone through the record carefully. 15. Learned Senior counsel for the defendant has submitted that since the plaintiff had admitted the execution of Will dated 27.09.1993 by Smt. Tipsi, the entire onus to prove that the said Will was vitiated by fraud or any other ground was on the plaintiff. He further contended that the plaintiff had failed to lead any credible evidence to show that the Will was not genuine and was surrounded by suspicious circumstances. Stress has been laid on the fact that the Will is a registered document and hence carries presumption of correctness and its validity. It has also been submitted that there have been minor discrepancies in the statements of the witnesses produced by defendant, which ought to have occurred due to lapse of long time between the execution of Will and deposition made in the Court. 16. Learned senior counsel for the defendant further submitted that this Court while hearing regular second appeal can re-appreciate the evidence as the appreciation by the Courts while rendering concurrent judgments had fallen in perversity. 17. On the other hand, learned counsel for the plaintiff has submitted that the defendant being propounder of the Will was legally obligated to prove its valid execution. He submitted that the defendant had failed to discharge the burden by not even producing the original Will on record. He further contended that the document i.e. the Will in question was not even shown to the attesting witness DW-4, when he entered the witness box. 18. Section 59 of the Indian Succession Act mandates that the only a person of sound mind who has attained the age of majority is capable of disposition of his property by Will. Explanation 4 appended to the said Section further declares that no person can make a Will while he, is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing. 19. Thus, to be a valid Will it should have been executed by a person of sound mind and at the time of its execution the testator should be in such state of mind that he is not in a position to know what he is doing. 20. 19. Thus, to be a valid Will it should have been executed by a person of sound mind and at the time of its execution the testator should be in such state of mind that he is not in a position to know what he is doing. 20. Section 61 of Indian Succession Act declares a Will or any part thereof to be void if the making of same has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator. 21. Thus, it is sine qua non for a Will to be genuine that the same is executed by person in a sound disposing mind. 22. In order to negate the possibility of any foul play, Section 63 of Indian Succession Act provides for specific mode and manner for execution of Will. It mandates the affixation of signature or mark by the testator to the Will in presence of two attesting witnesses, each of whom has seen the testator sign or affix his mark to the Will. Further each of attesting witnesses should have signed the Will in presence of the testator, however, without making it mandatory that each of them should be present at the same time. All above safety measures have been provided to negate the possibility of inheritance to the estate deceased person against his will. 23. Another aspect is that Will comes into play after the death of the testator. Section 68 of Indian Evidence Act provides for mode of proof of Will by examining at least one attesting witness if such witness is available. 24. It is more than settled that the burden to prove valid execution of Will is on the propounder, including the removal of suspicious circumstance, if any, surrounding the Will. 25. At this stage it will be relevant to reproduce certain extracts from the judgment passed by Hon’ble Supreme Court in Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao , (2006) 13 SCC 433 “32 [Ed.: Para 32 corrected vide O Corrigendum No. F.3/Ed.B.J./86/2007 dated 5-12- 2007.] Section 63 of the Succession Act lays down the mode and manner of execution of an unprivileged will. Section 68 of the Evidence Act postulates the mode and manner of proof of execution of document which is required by law to be attested. Section 68 of the Evidence Act postulates the mode and manner of proof of execution of document which is required by law to be attested. It in unequivocal terms states that execution of will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the court and capable of giving evidence. A will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufÏcient as in terms of Section 68 of the Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable. 33. The burden of proof that the will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufÏcient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufÏcient and cogent evidence if there exists any. In the case of proof of will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. (See Madhukar D. Shende v. Tarabai Aba Shedage [ (2002) 2 SCC 85 ] and Sridevi v. Jayaraja Shetty [ (2005) 2 SCC 784 ] .) Subject to above, proof of a will does not ordinarily differ from that of proving any other document. 34. (See Madhukar D. Shende v. Tarabai Aba Shedage [ (2002) 2 SCC 85 ] and Sridevi v. Jayaraja Shetty [ (2005) 2 SCC 784 ] .) Subject to above, proof of a will does not ordinarily differ from that of proving any other document. 34. There are several circumstances which would have been held to be described by this Court as suspicious circumstances: (i) when a doubt is created in regard to the condition of mind of the testator despite his signature on the will; (ii) when the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances; (iii) where propounder himself takes prominent part in the execution of will which confers on him substantial benefit. (See H. Venkatachala Iyengar v. B.N. Thimmajamma [ AIR 1959 SC 443 ] and Management Committee, T.K. Ghosh's Academy v. T.C. Palit [ (1974) 2 SCC 354 : AIR 1974 SC 1495 ] .) 35. We may not delve deep into the decisions cited at the Bar as the question has recently been considered by this Court in B. Venkatamuni v. C.J. Ayodhya Ram Singh [(2006) 13 SCC 449 : (2006) 11 Scale 148 ] , wherein this Court has held that the court must satisfy its conscience as regards due execution of the will by the testator and the court would not refuse to probe deeper into the matter only because the signature of the propounder on the will is otherwise proved. 36. The proof of a will is required not as a ground of reading the document but to afford the Judge reasonable assurance of it as being what it purports to be. 26. Coming to the facts of the case at hand, the defendant admittedly has not placed on record the original Will. To be precise, the defendant has not placed on record even a certified or photo copy of Will. It is the plaintiff who produced on record a photo copy of Will. There is a specific averment in the plaint that the original Will was lying with the defendant and the defendant had made a specific admission to this effect in his written statement. 27. During recording of evidence, defendant produced DW-1 Surat Ram, Patwari, who stated on oath that he had come along with original Will and the copy produced by the plaintiff (Ext. PW-1/B) was correct copy of the original. 27. During recording of evidence, defendant produced DW-1 Surat Ram, Patwari, who stated on oath that he had come along with original Will and the copy produced by the plaintiff (Ext. PW-1/B) was correct copy of the original. The alleged original WILL was still not placed on record for inspection of the court. In such circumstances and in absence of the production of the original document on record, it cannot be stated to have been proved as the contents of the document have to be proved by primary evidence and the primary evidence means the document itself produced for the inspection of the Court. There could not have been any question of proving the contents of document by any other mode when there was no dispute as to the existence of original. 28. Even the production of alleged original document by DW-1 is not free from suspicion as no explanation has come forward either by said witness or by the defendant as to under what circumstances the original Will had reached the custody of DW-1. As noticed above, there is a clear admission of defendant in the written statement that the original WILL was in his custody. 29. Another fact that deserves notice is that the defendant examined DW-3 Shri Anil Chauhan as his witness, who deposed that he was the Sub Registrar at the time of registration of Will. He deposed that Will Ext. PW-1/B was registered by him and an observation has been made “(original seen and returned)”. It is not the case that DW-1 Shri Surat Ram, Patwari and DW-3 Shri Anil Chauhan were examined on the same day. The statement of DW-1Shri Surat Ram was recorded on 29.12.2009, whereas the statement DW-3 Shri Anil Chauhan was recorded on 19.02.2010. There is nothing on record to suggest that DW-1 was present in Court on 19.02.2010 also along with original Will. There is also nothing on record to suggest that DW-1 had returned back the original Will to the defendant. Thus, the fact as to who had actual custody of original document remained in the realm of suspicion. 30. The fact remained that the original WILL was not placed or proved on record of the civil suit. The document Ext PW-1/B was a photocopy of Will but it could not be looked into for want of proof in accordance with law. 30. The fact remained that the original WILL was not placed or proved on record of the civil suit. The document Ext PW-1/B was a photocopy of Will but it could not be looked into for want of proof in accordance with law. It is trite that mere exhibition of a document do not dispense with the formal proof of its execution and contents. 31. The defendant also produced DW-4 Shri Ram Lal as attesting witness of the Will. As per record, Shri Ram Lal DW-4 was examined on the same day i.e. 19.02.2010 when DW-3 Shri Anil Chauhan was examined. Noticeably, DW-4 was not shown either the original Will or its photo copy as exhibited on record as Ext. PW-1/B. This witness though deposed that Smt. Tipsi had executed Will in favour of the defendant but in absence of the document being shown to him, it is not clear as to regarding which Will, deposition was being made. There also is nothing in the deposition of DW-4 that the contents of Will were read over and explained to Smt. Tipsi before affixation of her thumb mark. He also did not make any mention that he and other attesting witness had affixed their respective signatures in presence of Smt. Tipsi. Thus, the deposition of DW-4 will also not serve the purpose of defendant and in such circumstance there is no hesitation to hold that defendant had miserably failed to prove execution and contents of alleged Will of Smt. Tipsi. 32. Learned senior counsel for the defendant has pointed out from the statement of DW-3 Shri Anil Chauhan that he had asked Smt. Tipsi about the document before its registration. Reference has been made to his examination-in-chief and cross- examination where DW-3 Anil Chauhan has stated that he had asked Smt. Tipsi as to in whose favour she was executing the Will and she had replied that it was being done in the name of both sons. Looking at the entire evidence on record, the above statement of DW-3 will again not help the cause of defendant for the reason that even as per contents of the alleged Will, some portion though menial was bequeathed in favour of the plaintiff also. 33. Both the Courts have concurrently held that the defendant had failed to prove the execution and contents of Will in accordance with law. 33. Both the Courts have concurrently held that the defendant had failed to prove the execution and contents of Will in accordance with law. The said findings cannot be said to be illegal or perverse in light of material on record. 34. Learned senior counsel for the defendant then contended that the onus to prove issues No.1 and 2 was on the plaintiff and no issue was framed placing onus on the defendant. Even such contention on behalf of the defendant is of no use for the reasons that once the parties are aware about the case of each other, the placing of onus is rendered redundant more particularly, when the parties have led evidence knowing each other’s case. The defendant has produced alleged attesting witness as also the Sub Registrar, knowing full well that he had to prove the execution of Will in accordance with Section 68 of the Indian Evidence Act and further, there cannot be any estoppel against law and the defendant cannot evade his legal liability under the garb of framing of wrong issues. The burden to prove due and valid execution of WILL always was on the propounder i.e. the defendant. 35. In result, this Court does not find any illegality and perversity in the judgments recorded by both the Courts. The substantial question of law is answered accordingly. 36. The appeal is accordingly dismissed along with pending application(s), if any. Decree sheet be drawn accordingly.