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2025 DIGILAW 759 (HP)

Soma Devi v. General Public

2025-04-21

VIVEK SINGH THAKUR

body2025
JUDGMENT : Vivek Singh Thakur, J. Appellants-plaintiffs have preferred this appeal against judgment and decree dated 02.04.2012, passed by District Judge, Hamirpur, H.P., in Civil Appeal No.57 of 2009, titled as Soma Devi & others vs. General Public & others, whereby judgment and decree dated 03.03.2009, passed by Civil Judge (Junior Division), Court No.III, Hamirpur, H.P., in Civil Suit No. 146 of 2001, RBT No.870 of 2004, titled as Vijay Kumar vs. General Public & others, has been affirmed dismissing claim of the appellants to declare Will dated 12.02.1997 alleged to be executed by Likhu Ram, is a valid Will and liable to be registered. 2. On 03.10.2016 appeal was admitted on the following substantial question of law:- “1.Whether on account of misappreciation of the pleadings and misreading of the oral as well as documentary evidence available on record the findings recorded by both Courts below are erroneous and as such the judgment and decree impugned in the main appeal being perverse is vitiated and not legally sustainable? 3. It is case of the appellants that Likhu Ram was having two wives and respondents No.2 to 8 were children of first wife, whereas, Vijay Kumar (predecessor-in-interest of present appellants) and Kashmir Singh were sons of second wife. Likhu Ram had expired on 13.02.1997. According to respondents No.2 to 8, Likhu Ram had executed a Will dated 22.03.1995 to bequeath his property in favour of Chuni Lal, Vijay Kumar and Kashmir Singh for the first time. It was registered in the office of Sub-Registrar, Hamirpur. However, the first Will dated 22.03.1995 was revoked/cancelled by Likhu Ram by executing a subsequent Will dated 16.08.1996 whereby Likhu Ram had bequeathed his property in favour of Chuni Lal, Manohar Lal, Dev alias Baldev with specific reference of cancellation of earlier Will dated 22.03.1995 and exclusion of other legal heirs. 4. Claim of Vijay Kumar is that his father Likhu Ram was residing with him during last stage of his life and on 12.02.1997 he had executed a valid Will in favour of Vijay Kumar and Kashmir Singh. 5. For the registration of aforesaid Will dated 12.02.1997, Vijay Kumar filed an application under Sections 40 and 41 of Indian Registration Act, 1908 before Sub-Registrar, Hamirpur, H.P., with submission that it, being a valid Will, was liable to be registered. Registrar vide order dated 22.02.2000 had rejected application filed for registration of Will dated 12.02.1997. 6. 5. For the registration of aforesaid Will dated 12.02.1997, Vijay Kumar filed an application under Sections 40 and 41 of Indian Registration Act, 1908 before Sub-Registrar, Hamirpur, H.P., with submission that it, being a valid Will, was liable to be registered. Registrar vide order dated 22.02.2000 had rejected application filed for registration of Will dated 12.02.1997. 6. Being aggrieved, appellants-plaintiffs filed appeal under Section 72 of Indian Registration Act, 1908, before Registrar, Hamirpur, which was also dismissed on 10.04.2001. 7. Aforesaid orders of Sub-Registrar and Registrar were assailed by filing Civil Suit under Section 77 of Indian Registration Act, 1908, by alleging that the act of non-registration of Will by Sub- Registrar as well as Registrar, Hamirpur, was arbitrary, illegal and against the provisions of law and seeking declaration to the effect that Will executed by Likhu Ram in favour of Vijay Kumar and Kashmir Singh on 12.02.1997 was a valid Will and was liable to be registered. 8. Giving opportunities to the parties to depose and lead evidence, after hearing the arguments, suit was dismissed. 9. Appeal preferred by Vijay Kumar, wherein on account of death of Vijay Kumar, his legal heirs, who are present appellants, were also substituted in place of deceased Vijay Kumar. Appeal preferred by appellants-plaintiffs (successors-in-interest of Vijay Kumar) was also dismissed. Hence, present appeal. 10. I have heard learned counsel for the parties and also gone through the record. 11. Plaintiff-Vijay Kumar appeared in the witness box as PW.1 and examined five witnesses, including him as plaintiff’s evidence. 12. Private defendants had examined eight witnesses, including defendant No. 3 Manohar Lal as DW-1. 13. Plaintiff in evidence has produced copy of order dated 10.04.2001 Ex. .PW-1/A whereby Registrar, Hamirpur, H.P., had dismissed appeal preferred by plaintiff-Vijay Kumar against non-registration of Will by the Registrar. 14. Defendants have placed on record copy of Will dated 16.08.1996 (Ex.DW.5/A); endorsements on Will dated 16.08.1996 (Ex.DW.5/B to Ex.DW.5/D); copy of order dated 22.06.2000 (Ex.D-1); copy of order dated 10.04.2001 (Ex.D-2); copy of notice dated 02.01.1996 (Ex,DW.6/A); and copy of Roznamcha of Patwari dated 01.03.1997 (Ex.DW.2/A). 15. Whole controversy revolved around genuineness of Will dated 12.02.1997 and impact of Will dated 16.08.1996. 16. Admittedly, Will dated 16.08.1996 is a registered Will, whereas, Will dated 12.02.1997 is an unregistered Will. 17. Likhu Ram had expired on 13.02.1997. 15. Whole controversy revolved around genuineness of Will dated 12.02.1997 and impact of Will dated 16.08.1996. 16. Admittedly, Will dated 16.08.1996 is a registered Will, whereas, Will dated 12.02.1997 is an unregistered Will. 17. Likhu Ram had expired on 13.02.1997. It has come on record that after the death of Likhu Ram, Vijay Kumar approached the Patwari for attestation of mutation on the basis of Will dated 22.03.1995, wherein property was proposed to be bequeathed between Chuni Lal, Vijay Kumar and Kashmir Singh. Regarding this fact entry was made by Patwari in his Rapat Roznamcha dated 01.03.1997 (Ex. DW-2/A). However attestation of mutation on the basis of Will dated 22.03.1995 was opposed by private defendants by execution of subsequent Will dated 16.08.1996 (Ex. DW-5/A). Thereafter, plaintiff-Vijay Kumar came with a plea that Likhu Ram had executed last valid Will on 12.02.1997 in favour of Vijay Kumar and Kashmir Singh. Accordingly, he applied for registration thereof and on dismissal of application as well as appeal, he preferred the suit wherefrom present appeal has arisen. 18. It is claim of the appellants that it was not Vijay Kumar who produced Will dated 22.03.1995 before Patwari but it were defendants who produced the same to defeat right of Vijay Kumar and Kashmir Singh accruing in their favour on account of execution of a valid Will dated 12.2.1997 by Likhu Ram before his death which was the latest Will. 19. Claim of private defendants is that Will dated 12.02.1997 is surrounded by suspicious circumstances and keeping in view the date and time of its alleged execution, date and time of death of Likhu Ram, and also for production of Will dated 22.03.1995 at first instance, by Vijay Kumar before Patwari and disclosure of alleged latest Will dated 12.02.1997 lateron, and these circumstances definitely establish that Will dated 12.02.1997 is a fabricated Will. 20. Learned counsel for the appellants submits that evidence has not been interpreted and read by the Courts below in its right perspective resulting into a wrong conclusion that Will dated 12.02.1997 is not valid Will, particularly for believing alleged production of Will dated 22.03.1995 by Vijay Kumar before Patwari, and this conclusion is contrary to the record. 21. Learned counsel for the defendants has supported the impugned judgments and decrees for the reasoning assigned therein. 22. 21. Learned counsel for the defendants has supported the impugned judgments and decrees for the reasoning assigned therein. 22. The claim of the appellants is that Patwari, who allegedly recorded Roznamcha dated 01.03.1997 (Ex.DW.2/A) was not having acquaintance with Vijay Kumar and, therefore, he was not in a position to identify him as, in his cross-examination also, he has admitted that he was not knowing Vijay Kumar personally and, therefore, it is contended that Roznamcha dated 01.03.1997 is a suspicious document which has been concocted and fabricated by defendants in connivance with DW.3-Balwant Singh by producing Will dated 22.03.1995 themselves with false claim that one of them was Vijay Kumar. This plea of the appellants is not sustainable as Vijay Kumar while appearing as PW.1, in his cross-examination, has categorically admitted production of Will dated 22.3.1995 by stating that it was correct that when he went to the Patwari then, he had produced Will dated 22.03.1995. Admitted facts need not to be proved by leading further evidence. Thus, it has been clearly established on record that after death of Likhu Ram, Vijay Kumar had produced Will dated 22.03.1995 before Patwari for inheritance of the property of Likhu Ram in terms of the said Will. 23. Private defendants have proved execution and registration of Will dated 16.08.1996 as Ex.DW.5/A, wherein it has been clearly stated that earlier Will dated 22.03.1995 executed by Likhu Ram stood cancelled for execution of Will dated 16.08.1996 (Ex. DW-5/A). It is note-worthy that when this Will (Ex. DW-5/A) was produced by private defendants, Vijay Kumar came up with plea that another latest Will dated 12.02.1997 was also executed by Likhu Ram. 24. It is also undisputed fact that Kashmir Singh, who allegedly was present at the time of execution of Will dated 12.02.1997, did not put forth any claim on the basis of the said Will. It is also apt to note that Will dated 12.02.1997 is claimed to have been executed after 4.00-5.00 p.m. on 12.02.1997 and Likhu Ram had expired in the morning of 13.02.1997. 25. It stands proved, particularly for admission by Vijay Kumar as PW.1, that it was he who produced Will dated 22.03.1995 before the Patwari. It is also apt to note that Will dated 12.02.1997 is claimed to have been executed after 4.00-5.00 p.m. on 12.02.1997 and Likhu Ram had expired in the morning of 13.02.1997. 25. It stands proved, particularly for admission by Vijay Kumar as PW.1, that it was he who produced Will dated 22.03.1995 before the Patwari. In case, he (Vijay Kumar) was having latest Will dated 12.02.1997 executed by Likhu Ram in his favour alongwith Kashmir Singh then, there was not prudent reason preventing him from producing the said Will before Patwari at the first instance, however contrary, at the first instance he produced Will dated 22.03.1985 before Patwari when this was objected by private defendants by producing subsequent registered Will dated 16.08.1996, Vijay Kumar came with latest Will dated 12.02.1997. 26. It is also apt to record that alongwith this Regular Second Appeal, appellants have also filed an application under Order 41 Rule 27 CPC (CMP No. 8307 of 2016) for producing and proving original Will dated 12.02.1997. Even if, original Will dated 12.02.1997 is taken on record in evidence, it would neither be helpful to the appellants to establish their case nor it would be a relevant document for deciding the appeal as production and proving this document on record will not cause any change in facts which have demonstated the claim of Vijay Kumar for his own admission, because Vijay Kumar, at the first instance, had produced Will dated 22.03.1995 but not Will dated 12.02.1997. Had this Will been in existence at the time of death of Likhu Ram, there was no reason for Vijay Kumar to approach Patwari alongwith Will dated 22.03.1995, which had already been revoked by Likhu Ram at the time of execution of Will dated 16.08.1996. Therefore, document proposed to be placed and proved on record in evidence of plaintiff is neither necessary nor required for complete and final adjudication of present matter as its presence or absence in evidence on record will be of no consequence for having no bearing on the merits of the case. Accordingly, application is liable to be rejected and dismissed accordingly. 27. In aforesaid facts, definitely evidence of defendants is inspiring confidence, whereas, evidence led by Vijay Kumar is itself demolishing case of the appellants. Accordingly, application is liable to be rejected and dismissed accordingly. 27. In aforesaid facts, definitely evidence of defendants is inspiring confidence, whereas, evidence led by Vijay Kumar is itself demolishing case of the appellants. Therefore, there is no misleading or misinterpretation of the evidence on record and there is no perversity in the impugned judgments and decrees warranting interference under Regular Second Appeal. Substantial question framed is answered accordingly. 28. Resultantly, appeal is dismissed, so also pending application(s), if any.