Himachal Pradesh High Court
Hira Singh vs Narinder Kumar And Others on 28 August, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.177 of 2018.
Date of decision: 28.08.2018.
.
Hira Singh ..... Appellant/Plaintiff.
Versus
Narinder Kumar and others ....Defendant/Respondents.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 No For the Appellant r : Mr. Y.P. Sood, Advocate.
For the Respondents : Ms. Seema K. Guleria, Advocate, for respondent No.1.
Tarlok Singh Chauhan, Judge (Oral).
Appellant is one of the plaintiffs, who after having lost before both the learned Courts, has filed the instant appeal. The parties shall be referred to as the plaintiff and the defendant.
2. The suit was filed by the present appellant along with his brothers, who have been arrayed as proforma respondents in this case, for declaration and permanent prohibitory injunction on the allegations that one Shri Mushu was the owner of the land bearing Khata No.79min, Khatauni No. 293, Khasra Nos. 515, 516, 531, 532, 533, 536, 538 and 539, kitas-8, measuring 00-06-19 hectares, situated 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 31/08/2018 22:53:00 :::HCHP 2 at Bhagwati Nagar, Patwar Circle, Badhai, Tehsil Shimla, Gramin, District Shimla, H.P. (hereinafter referred to as the suit land). The .
aforesaid Mushu was having one son Shri Shivia, who is father of plaintiff No.1 and grandfather of plaintiffs No.2 to 4. Shri Shivia had two sons namely Bala Ram and Chandu Ram. Shri Bala Ram was having his wife namely Smt. Prabhu Devi. They were issue-less and after the death of Shri Bala Ram, his property was devolved upon Smt. Prabhu Devi. In the said property, there were three houses with two single rooms in one side and two single rooms with kitchen on the other side. Plaintiff No.1 is son of Shri Shivia and brother of Shri Bala Ram and Shri Chandu Ram. Shri Jeet Ram was son of Shri Shivia and Smt. Shanti and Smt. Suni were daughters of Shri Shivia. After the death of Shri Shivia, the property devolved upon Shri Bala Ram and Shri Chandu Ram. After the death of Bala Ram, Smt. Prabhu Devi had inherited the suit property, whereas, plaintiffs No.2 to 4 have inherited the property of Shri Chandu Ram. Thus, after the death of Shri Mushu, his property was inherited by his legal heirs. The property is stated to be ancestral property and required to be further devolved upon his legal heirs and no other has any right, title and interest in the same. The plaintiffs have relied upon the pedigree table as mentioned in para-4 of the plaint, which is reproduced as under:-
::: Downloaded on - 31/08/2018 22:53:00 :::HCHP 3Mushu | | | | | | .
Shivia Hira Singh Jeet Singh Shanti
Sunni
(Plaintiff No.1)
(Shivia)
|
| |
Bala Ram Chandu Ram
| |
| | | | |
Smt. Prabhu Ramesh Bhuma Nand Pramod Sevti
(Plaintiffs No.2 to 4)
3. After relying upon the pedigree table, it was averred that after the death of Shri Bala Ram, the property of his share was inherited by Smt. Prabhu and similarly the property of Shri Chandu Ram was inherited by plaintiffs No.2 to 4 and Smt. Sevti Devi wd/o Shri Chandu Ram. Smt. Prabhu had expired on 27.05.2017. Since, Smt. Prabhu had died issue-less, therefore, the suit property is liable to be reverted back to the natural legal heirs as per the Hindu Succession Act and as per the pedigree table. It was further averred that after the death of Smt. Prabhu Devi, the suit property is liable to be mutated in the names of the plaintiffs as per the schedule of Hindu Succession Act, but the defendant, who is not the family member and related to Smt. Prabhu Devi being his nephew, got registered and executed fresh ::: Downloaded on - 31/08/2018 22:53:00 :::HCHP 4 Will dated 11.12.2013 by manipulating the same in his favour and the same was also got registered in the Office of Sub Registrar, Shimla .
Gramin, on 11.12.2013. According to the plaintiffs, in the aforesaid Will, reference of previous Will as executed in favour of Shri Kewal Ram, s/o Shri Khushi Ram has also been given and by virtue of Will dated 11.12.2013, the property has been shown to have been given to the defendant. It was also averred that defendant is not the natural legal heir of the family of the plaintiffs and he has manipulated fabricated the execution and registration of the Will in his favour in order to grab the suit property. According to the plaintiffs, the and defendant, in connivance with the witnesses, got manipulated the Will dated 11.12.2013 and moreover at the time of alleged execution of the Will, Smt. Prabhu Devi was more than 74 years of age and was not keeping sound disposing state of mind. She was not aware about the consequences of the registration and execution of the Will due to her old age. It was further averred that the defendant in connivance with the witnesses of the Will has played fraud upon Smt. Prabhu Devi.
The natural legal heirs were diverted from the natural succession.
According to the plaintiffs, the Sub-Registrar was required to hold proper inquiry in the matter as the natural successors were being deprived of from the ancestral property. The Will is also stated to be a ::: Downloaded on - 31/08/2018 22:53:00 :::HCHP 5 result of fraud, undue influence exercised upon Smt. Prabhu Devi. As per the plaintiffs, the defendant has no right, title or interest in the suit .
property on the basis of the Will dated 11.12.2013. Moreover, the suit property is joint and the same has not been partitioned and till the partition, the question of title as raised on behalf of the defendant regarding the inheritance of the property of Prabhu Devi is not to be decided.
4. On the basis of the aforesaid facts, the plaintiffs had sought the relief that a decree for declaration be passed in their favour to the effect that the Will No.144 dated 11.12.2013 allegedly executed by Smt. Prabhu Devi in favour of the defendant is result of fraud, coercion, undue influence played by defendant in order to defeat the legal vested rights of the plaintiffs to inherit the suit property on the basis of natural succession under Hindu Law. Apart from this, the plaintiffs had also sought the relief of permanent prohibitory injunction restraining the defendant from getting the mutation entered and attested in his favour qua the share of Smt. Prabhu Devi in the suit property and further the defendant be restrained from selling, alienating, transferring, disposing, creating any charge and encumbering the same.
::: Downloaded on - 31/08/2018 22:53:00 :::HCHP 65. The defendant contested the suit by filing written statement wherein preliminary objections have been taken to the effect .
that the plaintiffs have not approached court with clean hands and they have suppressed the material facts. According to the defendant, he had taken care of Smt. Prabhu Devi prior and upto her death. The plaint lacks full and material particulars. Smt. Prabhu Devi was never looked after by the plaintiffs after the death of her husband. The objections qua valuation, locus-standi and cause of action have also been taken. On merits, the defendant has denied the allegations as levelled in the plaint. Though, it has not been denied that after the death of Sh. Bala Ram, the property of his share was inherited by Smt. Prabhu Devi, however, the inheritance qua the share of Sh. Chandu Ram by plaintiffs No.2 to 4 has been denied for want of knowledge.
6. The plaintiffs filed replication denying the preliminary objections as well as the contents of the written statement.
7. The learned trial Court framed the following issues on 06.07.2015:-
"1. Whether the plaintiffs are entitled for the decree of declaration to the effect that Will No. 144 dated 11.12.2013 executed by late Smt. Prabhu Devi in favour of the defendant is a result of fraud, coercion, undue ::: Downloaded on - 31/08/2018 22:53:00 :::HCHP 7 influence and not binding upon the right, title and interest of the plaintiffs, as alleged? OPP.
2. Whether the plaintiffs are entitled to inherit the property .
falling in the share of late Smt. Prabhu Devi on the basis of natural succession, as alleged? OPP.
3. Whether the plaintiffs are entitled for the decree of permanent prohibitory injunction, as alleged? OPP.
4. Whether the suit of the plaintiffs is neither competent nor maintainable, as alleged? OPD.
5. Whether the plaintiffs have no locus standi to file the present suit, as alleged? OPD.
6. Whether the Will dated 11.12.2013 stated to be executed by Smt. Prabhu Devi is valid in the eyes of the law, as alleged? OPD.
7. Relief."
8. After recording evidence and evaluating the same, the learned trial Court dismissed the suit filed by the plaintiffs on 27.04.2017 and the appeal filed against the judgment and decree passed by the learned trial Court, also came to be dismissed by the learned first appellate Court vide judgment and decree dated 26.12.2017.
9. Aggrieved by the judgments and decrees passed concurrently by the learned Courts below, the plaintiff has filed the instant appeal on the ground that both the learned Courts below have ::: Downloaded on - 31/08/2018 22:53:00 :::HCHP 8 committed grave illegality in upholding the validity of Will Ex. DW1/A which otherwise has not been proved in accordance with law.
.
10. On the other hand, Ms. Seema K. Guleria, learned counsel for respondent No.1, would contend that the findings recorded by both the learned Courts below are based upon correct appreciation of law, pleadings as also evidence on record and being pure finding of fact are immune from challenge in the instant second appeal.
11.
r to I have heard the learned counsel for the parties and have also gone through the records of the case.
At the outset, it may be noticed that the plaintiff (s) had not disputed the execution of the Will but had only claimed the same to be an outcome of fraud and is a result of undue influence. Therefore, the first question that arises for consideration is as to whether the plaintiff
(s) has raised these pleas as contemplated under Order 6 Rule 4 CPC which reads thus:-
"4. Particulars to be given where necessary.- In all cases in which the party pleadings relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading."::: Downloaded on - 31/08/2018 22:53:00 :::HCHP 9
12. The answer to this question is definitely in the negative for the simple reason that apart from using the words like fraud, undue .
influence, not genuine, there are no specific particulars having been set-forth and it is more than settled that a vague of general plea can never serve this purpose and the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence and the unfair advantage obtained by the other.
13. to Reference in this regard can conveniently be made to the judgment of the Hon'ble Supreme Court in Subhas Chandra Das Mushib vs. Ganga Prosad Das Mushib and others AIR 1967 SC 878 wherein it was held as under:-
"10. Before, however a court is called upon to examine whether undue influence was exercised or not, it must scrutinize the pleadings to find out that such a case has been made out and that full particulars of undue influence have been given as in the case of fraud. See Order 6 Rule 4 of the Code of Civil Procedure. This aspect of the pleading was also given great stress in the case of Ladli Prasad Jaiswal (1964) 1 SCR 270: (AIR 1963 SC 1279) above referred to. In that case it was observed (at p. 295 of SCR): (at p. 1288 of AIR):
"A vague of general plea can never serve this purpose; the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use ::: Downloaded on - 31/08/2018 22:53:00 :::HCHP 10 of the influence, and the unfair advantage obtained by the other."
"25. There was practically no evidence about the domination .
of Balaram over Prasanna at the time of the execution of the deed of gift or even thereafter. Prasanna, according to the evidence, seems to have been a person who was taking an active interest in the management of the property even shortly before his death. The circumstances obtaining in the family in the year 1944 do not show tht the impugned transaction was of such a nature as to shock one's conscience. The plaintiff had no son. For a good many years before 1944 he had been making a living elsewhere. According to his own admission in cross-examination, he owned a jungle in his own right (the area being given by the defendant as 80 bighas) and was therefore possessed of separate property in which his brother or nephew had no interest. There were other joint properties in the village of Parbatipur which were not the subject matter of the deed of gift. It may be that they were not as valuable as the Lokepur properties. The circumstances that a grandfather made a gift of a portion of his properties to his only grandson a few years before his death is not on the face of it an unconscionable transaction. Moreover, we cannot lose sight of the fact that if Balaram was exercising undue influence over his father he did not go to the length of having the deed of gift in his own name. In this he was certainly acting very unwisely because it was not out of the range of possibility that Subhas after attaining majority might have nothing to do with his father."::: Downloaded on - 31/08/2018 22:53:00 :::HCHP 11
14. It shall be apt to make reference to the judgment of the Hon'ble Supreme Court in Afsar Shaikh and another vs. Soleman .
Bibi and others AIR 1976 Supreme Court, 163, wherein the Hon'ble Supreme Court has held as under:-
"While it is true that 'undue influence', 'fraud', 'misrepresentation' are cognate vices and may, in part, overlap in some cases, they are in law distinct categories, and are in view of Order 6, Rule 4, read with Order 6, Rule 2 of the Code of Civil Procedure, required to be separately pleaded, with specificity, particularity and precision. A general allegation in the plaint, that the plaintiff was a simple old man of ninety who had reposed great confidence in the defendant, was much too insufficient to amount to an averment of undue influence of which the High Court could take notice, particularly when no issue was claimed and no contention was raised on that point at any stage in the trial court, or, in the first round, even before the first appellate court."
15. The correct legal position in matters of Will was laid down by the three Hon'ble Judges of the Hon'ble Supreme Court in H. Venkatachala Iyengar vs. B.N. Thimmajamma and others AIR 1959 SC 443 and thereafter approved by the Hon'ble Constitution Bench of the Hon'ble Supreme Court in Shashi Kumar Banerjee and others vs. Subodh Kumar Banerjee and others AIR 1964 SC 529 and thereafter reiterated in a number of cases including three Judges of the Hon'ble Supreme Court in Smt. Jaswant Kaur vs. Smt. Amrit ::: Downloaded on - 31/08/2018 22:53:00 :::HCHP 12 Kaur and others (1977) 1 SCC 369, wherein the legal position was succinctly summed up in the following manner:-
.
"10. "There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v.B.N. Thirnmajamma & Others.(AIR 1959 SC 443). The Court, speaking through Gajendragadkar J., laid down in that case the following propositions :
1. Stated generally, a will has to be proved like any other r document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the ease of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
2. Since section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by section 63 of the Evidence Act, 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.
3. Unlike other documents, the will speaks from the death o[ the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on ::: Downloaded on - 31/08/2018 22:53:00 :::HCHP 13 the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
.
4. Cases in which the execution of the will is surround- ed by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
5. It is in connection with wills, the execution of which is surrounded by suspicious circumstance that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.::: Downloaded on - 31/08/2018 22:53:00 :::HCHP 14
6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the .
very circumstances surrounding the execution' of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
16. Thus, it is absolutely clear from the aforesaid exposition of law that if a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the Will, such pleas have to be proved by him and only where the circumstances surrounding the execution of the Will may raise a doubt as to whether the testator was acting of his own free Will, then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter.
17. Adverting to the facts, paragraph-8 of the plaint contains the plea of fraud and undue influence and the relevant portion of the same reads thus:-
".....In fact, the Will is result of fraud, undue influence exercised upon late Smt. Prabhu Devi. Had it not been so, late Smt. Prabhu Devi would not have executed prior Will in favour of some other person......"
18. Not only are the pleadings qua fraud, undue influence deficit, even the evidence led in this behalf is wanting and that is why the plaintiffs themselves have not seriously contested the findings ::: Downloaded on - 31/08/2018 22:53:00 :::HCHP 15 recorded by both the learned Courts below negating the plea of fraud and undue influence.
.
19. Nonetheless, as per settled law, it is for the propounder of the Will to repel all the suspicious circumstances surrounding the Will and to prove the genuineness of the Will. Besides this, the propounder would also be required to satisfy the following points qua the due execution of the Will:-
(i)
(ii) r to the Will was signed by the testator;
at the relevant time, the testator was in sound disposing state of mind; and
(iii) testator had understood the nature and effect of depositions and had put his signatures on the document of his own free volition and will.
20. Adverting to the facts of the case, it would be noticed that the plaintiff (appellant herein) appeared as PW-1 and deposed that Smt. Prabhu Devi was his sister-in-law, who died at the age of 75 years and her husband died in the year 2002. According to PW-1, Smt. Prabhu Devi was residing with him. She was issue-less and was illiterate and used to remain ill. She was being looked after by the witness, his wife and children. They also used to bear the expenses of her treatment. Smt. Prabhu Devi was unable to move 5-6 years prior to her death and her eyesight was also weak and she was hard of ::: Downloaded on - 31/08/2018 22:53:00 :::HCHP 16 hearing and could hear by using hearing-aid. In cross-examination, this witness feigned ignorance regarding the date of death of Smt. .
Prabhu Devi and deposed that she died in her parental house at Mashobra. At the time of her death, she was residing with her nephew. According to him, Prabhu Devi had gone there about 20-22 days prior to her death. In further cross-examination, this witness stated that neither he maintained any record with regard to the amount spent on the treatment of Prabhu Devi nor kept the receipts. He also deposed that Smt. Prabhu Devi had gone along with her brother's son in a vehicle, but again stated that he was not aware with whom she had gone. The nephew referred to above is none other than the defendant with whom Smt. Prabhu Devi was residing. This witness denied the suggestion that Prabhu Devi was residing with the defendant, who used to look after her, however, he candidly admitted that she had lived with the defendant during her life time. He further admitted that till her death, Smt. Prabhu Devi was in a fit state of mind.
21. PW-2 Nisha Thakur deposed that Smt. Prabhu Devi died in the month of May, 2014. She was ill prior to her death and aged about 75 years. Her eyesight was weak and she was hard of hearing.
According to this witness, she was being looked after by the plaintiff-
::: Downloaded on - 31/08/2018 22:53:00 :::HCHP 17appellant and his wife Sheela and children. Smt. Prabhu Devi died issue-less and no one was looking after her. Noticeably, this witness .
was not a summoned witness and was running a shop at Bhagwati Nagar. However, this witness was not aware about the place where Smt. Prabhu Devi died. She candidly admitted that wife of the plaintiff-
appellant is a member of an organization by the name 'Akhil Bharti Mahila Samiti' where this witness is working. She feigned ignorance that the last rites of Smt. Prabhu Devi were performed by the defendant. Like, PW-1 this witness is also not aware about the Will which was executed by Smt. Prabhu Devi in favour of the defendant.
22. PW-3 Smt. Krishana Sharma, Patwari, has proved the document Ex. PW3/A.
23. On the other hand, defendant examined Shri Ashok Chaudhary, document writer, from D.C. Office, Shimla, who deposed that he is working as a document writer from the year 1980. He had brought the records, according to which, a document was entered at serial number 333 dated 11.12.2013 executed by Smt. Prabhu Devi.
By virtue of this document, the earlier Will was cancelled and a new Will was registered which was duly entered in the records and proved the same as Ex.DW1/A. He further deposed that Smt. Prabhu Devi had signed in the presence of two witnesses. Lastly, he deposed that ::: Downloaded on - 31/08/2018 22:53:00 :::HCHP 18 at the time when the Will was executed, the same was read over and explained to Smt. Prabhu Devi in vernacular and she was made to .
understand the same. The Will was also read by the witnesses. In cross-examination, this witness denied all the suggestions that were put to him by learned counsel appearing for the plaintiff (s).
24. DW-2 Shri Joginder Lal deposed that Smt. Prabhu Devi was paternal aunt of the defendant and she was initially residing at Bhagwati Nagar, however, during the year 2011, she came to reside with the defendant at Kyarkoti. There, she was being looked after by the defendant and except him, there was no other person, who met her. The last rites of Smt. Prabhu Devi were performed by the defendant at Kyarkoti. This witness accompanied the defendant to Haridwar to perform her last rites. Even though, this witness was not aware about the name of husband of Smt. Prabhu Devi or the fact that he had died or that she was issue-less. However, the same has no bearing in this case as this witness has only deposed about the facts as stated above. This witness reiterated that the last rites of Smt. Prabhu Devi were performed by the defendant at Kyarkoti.
25. DW-3 Khem Dass deposed that Smt. Prabhu Devi was paternal aunt (Bua) of the defendant. In the year 2011, Smt. Prabhu Devi was residing in the house of the defendant. Smt. Prabhu Devi ::: Downloaded on - 31/08/2018 22:53:00 :::HCHP 19 was issue-less and was being looked after by the defendant and his family. After her death, her last rites were performed by Narinder. On .
10.12.2013, the defendant telephonically informed this witness that her aunt wanted to execute a Will in his favour and requested this witness and Anokhi Ram to go to D.C. Office upon which on 11.12.2013 at about 8.00 a.m., this witness started from his house and reached Shimla at 10.00 a.m. at the seat of DW-1 and then DW-1 enquired from Smt. Prabhu Devi about the reasons for coming. Upon this, Smt. Prabhu Devi disclosed him that defendant and his family members have been looking after her, as such, she wanted to execute a Will of her entire property in his favour. When the Will was prepared, DW-1 read over the same to Smt. Prabhu Devi and this witness also read the same. Thereafter, Smt. Prabhu Devi put her signatures over the Will in the presence of attesting witnesses. Thereafter, this witness and other attesting witness Anokhi Ram signed the same. The document writer thereafter entered the Will in his register and obtained the signatures all of them. The Will was thereafter produced before the Tehsildar for registration where the Tehsildar also enquired from Smt. Prabhu Devi about the document and she reiterated her stand that she had executed a Will in favour of the defendant keeping in view the services rendered by him and his family members. Before ::: Downloaded on - 31/08/2018 22:53:00 :::HCHP 20 Tehsildar, photographs of the attesting witnesses and the testatrix were clicked. Even though, Smt. Prabhu Devi was known to this .
witness, however, she was not related to him. This witness put his signatures over the Will and then the witness had put his signatures over the document in the office of the Tehsildar. He further deposed that Smt. Prabhu Devi was married with Bala Ram of village Vihar.
According to him, Smt. Prabhu Devi was the first person, who signed the Will, whereas, the defendant had not signed the same.
witness admitted that he had put the signatures on the document for cancellation of the Will, but at the same time, deposed that by virtue of This the said document, a new Will was executed.
26. DW-4 Narinder Kumar deposed that Smt. Prabhu Devi was his paternal aunt and was residing at Bhagwati Nagar and further in the year 2011 she was residing with him. He along with his family members looked after her. Till her last breath, Smt. Prabhu Devi lived with him. No one from her family came to enquire about her welfare.
They also did not perform her last rites. Prior to her death, Smt. Prabhu Devi had expressed her intention to execute a Will in favour of this witness keeping in view the services rendered by him and his family members and had directed this witness to call for two persons and take her to the document writer. Consequently, they had gone ::: Downloaded on - 31/08/2018 22:53:00 :::HCHP 21 to Ashok Chaudhary for execution of the Will and then the Will was scribed by DW-1 at the instance of Smt. Prabhu Devi and was read .
over to her and only thereafter had Smt. Prabhu Devi put her signatures on it. The Will was also witnessed by Khem Dass and Anokhi Ram. Thereafter, they had gone to the Office of the Tehsildar where the Will was registered.
27. This in entirety is the evidence led by the parties which clearly goes to show that the Will in question had been prepared by Ashok Chaudhary, document writer, at the instance of Smt. Prabhu Devi and the same was signed by two witnesses as per requirement of law. The earlier Will Ex. DX which was executed by Smt. Prabhu Devi in favour of Kewal Ram had been cancelled by her.
28. Apart from the fact that the Will has been duly proved by the witnesses, it would be noticed that the Will in question is otherwise registered one and, therefore, there is presumption of its being validly executed and the onus of proof will be on the other party, who wants to set off the above presumption.
29. In Ningawwa vs. Byrappa Shiddappa Hireknrabar AIR 1968, SC 956, the Hon'ble Supreme Court held as under:
"27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima- facie would be valid in law. The onus of proof, thus, would be ::: Downloaded on - 31/08/2018 22:53:00 :::HCHP 22 on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption."
.
30. In Prem Singh vs. Birbal (2006) 5 SCC 353, it was held as under:
"27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima-facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, respondent No.1 has not been able to rebut the said presumption."
31. It is otherwise more than settled that the appellate Court continues to be a final court of fact and law and second appeal to the High Court lies only where there is a substantial question of law.
Meaning thereby, the pure findings of fact remain immune from challenge before this Court in second appeal. It shall be apt to refer to three Judges Bench decision of the Hon'ble Supreme Court in Santosh Hazari vs. Purushottam Tiwari (deceased) by LRs (2001) 3 SCC 179 wherein it was observed as follows:
"15......The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because ::: Downloaded on - 31/08/2018 22:53:00 :::HCHP 23 the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless .
such question of law be a substantial one."
32. What would be the substantial question of law was thereafter considered in para 12 of the judgment, which reads thus:
"12. The phrase 'substantial question of law', as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying "question of law", means - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of substantial question of law by suffixing the words of general importance as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta & Anr. Vs. T. Ram Ditta, AIR 1928 Privy Council 172, the phrase "'substantial question of law" as it was employed in the last clause of the then existing Section 110 of the C.P.C. (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. Vs. The Century Spinning and ::: Downloaded on - 31/08/2018 22:53:00 :::HCHP 24 Manufacuring Co., Ltd., (1962) Supp.3 SCR 549, the Constitution Bench expressed agreement with the following view taken by a Full Bench of Madras High Court in .
Rimmalapudi Subba Rao Vs. Noony Veeraju, ILR 1952 Madras 264:-
"When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative view, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest Court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law."
and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:-
"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in ::: Downloaded on - 31/08/2018 22:53:00 :::HCHP 25 determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be .
a substantial question of law."
33. Finally, in paragraph 14, the Hon'ble Supreme Court laid down the guidelines on the test of as to what is the substantial question of law, which reads thus:
"14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial", a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."::: Downloaded on - 31/08/2018 22:53:00 :::HCHP 26
34. The findings recorded by the learned Courts below are based on the correct appreciation of the pleadings and evidence and .
are pure findings of fact which are immune from challenge in second appeal.
35. No question of law much less substantial question of law arises for consideration in this appeal.
36. Accordingly, there is no merit in this appeal and the same is dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.
( Tarlok Singh Chauhan ) th 28 August, 2018. Judge (krt) ::: Downloaded on - 31/08/2018 22:53:00 :::HCHP