Himachal Pradesh High Court
Shiv Chand vs Parwati Devi on 3 November, 2015
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
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RSA No. 144 of 2012-D
Judgment Reserved on : 27.8.2015
Date of Decision : November 3 , 2015
Shiv Chand ... Appellant/defendant
of
Versus
Parwati Devi ... Respondent/plaintiff.
Coram:
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The Hon'ble Mr. Justice Sanjay Karol, Judge.
Whether approved for reporting? 1
Yes.
For the appellant : Mr. Bimal Gupta, Sr. Advocate with Mr. Satish
Sharma, Advocate, for the appellant.
For the respondent : Mr. G. R. Palsra, Advocate, for the respondent.
Sanjay Karol, J.
This is the defendant's Regular Second Appeal filed under Section 100 of the Code of Civil Procedure.
2. Jogu Ram owned land comprising of khewat No. 45/44, khatauni No. 73, khasra Nos. 207, 210, 211, 213, 215, 208, 209, 212 and 214, kita - 9, measuring 22-10-5 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 19:17:05 :::HCHP 2bighas situated in village/Muhal Shilh/511, Sub Tehsil Aut, District Mandi, H.P. with other co-sharers to the extent of .
1380 shares out of 18010 shares. On 9.7.2007, Parwati (plaintiff - respondent herein) filed a suit claiming to be owner in possession of the same (suit land) as legally wedded wife of Sh. Jogu Ram who expired on 8.2.2007.
of Challenge was laid to an unregistered Will dated 21.1.2007 propounded by Shiv Chand (defendant - appellant herein), rt who also got entries of mutation recorded in his name.
Plaintiff pleaded the Will to be an act of fraud, misrepresentation, deception etc.
3. In defence, defendant who is the real nephew of Jogu Ram pleaded valid execution of the Will in lieu of the services rendered by him. Jogu Ram was issueless and since there was none to look after him, defendant took care of him.
4. Based on the respective pleadings of the parties, trial Court framed the following issues:
1. Whether the plaintiff is owner in possession of the suit land? OPP
2. Whether the plaintiff being legally wedded wife of Jogu Ram is entitled to inherit the property of Jogu Ram, as alleged? OPP ::: Downloaded on - 15/04/2017 19:17:05 :::HCHP 3
3. Whether the Will dated 21.1.2007 of Jogu Ram in favour of the defendant is forged fictitious document and is the result of fraud and .
mis-representation, as alleged? If so, its effect?
OPP
4. Whether the mutation No. 957, dated 25.4.2007 is wrong and illegal, as alleged? OPP
5. Whether the plaintiff is entitled for permanent prohibitory injunction, as prayed?OPP of
6. Whether the suit is not maintainable in the present form? OPD
7.rt Whether the plaintiff has no cause of action to file the present suit? OPD
8. Whether the plaintiff has no locus standi to file the present suit? OPD
9. Whether the suit of the plaintiff is not properly valued for the purpose of court fee and jurisdiction, as alleged? OPD
10. Whether Jogu Ram has executed legal and valid Will in favour of the defendant dated 21.1.2007, as alleged? If so, its effect? OPD
11. Relief."
5. Finding the Will to have been validly executed in favour of the defendant, trial Court in terms of judgment and decree dated 30.4.2011, passed in Civil Suit No. 56 of 2007, titled as Smt. Parwati vs. Sh. Shiv Chand, dismissed the suit.
::: Downloaded on - 15/04/2017 19:17:05 :::HCHP 46. In the plaintiff's appeal, the lower appellate Court in terms of judgment and decree dated 20.1.2012, .
passed in Civil Appeal No. 25 of 2011, titled as Smt. Parwati Devi vs. Shiv Chand, while reversing the findings of fact, decreed the suit, holding the plaintiff to be the sole legal heir of deceased Jogu Ram and the Will propounded by the of defendant to be not only shrouded by suspicious circumstances but also not proved in accordance with law.
rt Consequently entries of mutation effected in favour of the defendant, based on the Will in question, were also held to be null and void and plaintiff being the owner, defendant was restrained from interfering with her ownership and possession of the suit land.
7. Hence the present appeal admitted on the following substantial questions of law:-
"1. Whether the learned first appellate Court below was right in making out a new case for the plaintiff, which was neither pleaded nor otherwise proved on record?
2. Whether the learned first appellate Court below while passing the impugned judgment and decree has rightly not considered the plea of fraud and misrepresentation for execution of Will Ext. DW-1/A ::: Downloaded on - 15/04/2017 19:17:05 :::HCHP 5 in the absence of particulars of such fraud and mis- representation?
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3. Whether the learned first appellate Court below has misread, misinterpreted the statement of DW-4 Shri Bhag Chand and has rightly held DW-4 Shri Bhag Chand not as an attesting witness but as an identifier in an unregistered Will?
4. Whether the learned Court below has rightly of set aside the Will Ext. DW-1/A, when it has come on record that at the time of attestation of mutation in favour of appellant on the basis of Ext. DW-1/A, rt plaintiff was present and plaintiff at no point of time assailed the said mutation in the hierarchy of revenue Courts and failed to give explanation for assailing the mutation Ext. DW-1/F when stepped into witness box."
8. Having heard learned counsel for the parties as also perused the record, I am of the considered view that no ground for interference is made out in the present appeal.
9. It is a settled position of law that entries of mutation in the revenue record do not confer any title to the property. It is only an entry for collection of land revenue from the person in possession. The title to the property has to be on the basis of the title with regard to the acquisition of land and not by mutation entries. Unless contrary is established, entries of mutation are taken to be correct.
::: Downloaded on - 15/04/2017 19:17:05 :::HCHP 6[See: Durga Das vs. Collector & others, (1996) 5 SCC 618 {relied upon in Suman Verma vs. Union of India & others, .
(2004) 12 SCC 58}; Balwant Singh & another vs. Daulat Singh (Dead) by LRs & others, (1997) 7 SCC 137; Mahila Bajrangi (dead) through LRs & others vs. Badribai w/o Jagannath & another, (2003) 2 SCC 464; and H. Lakshmaiah of Reddy & ors. vs. L. Venkatesh Reddy, JT 2015 (4) SC 284.]
10. On the strength of Will (Ext. DW-1/A), entry of rt mutation No. 957 dated 25.4.2007 was effected in favour of the defendant. Record reveals that on 9.7.2007 itself, plaintiff laid challenge to the same. Hence there is no question of acquiescence on the part of the plaintiff. It also cannot be argued that the plaintiff accepted the Will. The suit was very much maintainable as only a Civil Court could have gone into the validity of the Will and title of the land in question. Effective remedy only lied with the Civil Court.
11. It is argued that the plaintiff accepted and acted upon the Will inasmuch as, in terms thereof, she withdrew the amount lying in the bank account of late Sh. Jogu Ram.
The testator, as per the Will, had desired that she be given the money lying in the account. Significantly there is ::: Downloaded on - 15/04/2017 19:17:05 :::HCHP 7 nothing on record to establish the exact amount which the plaintiff received from the bank. Also there is nothing on .
record to establish that such withdrawal was by way of acceptance of the Will. Record of the bank from where the amount was withdrawn is neither produced nor proved by the defendant.
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12. Perusal of the written statement as also findings returned by the trial Court, which remain unassailed, rt establish that there is not much challenge to the fact that plaintiff was the only legally wedded wife of Jogu Ram. In any event, such fact stands proved through the testimony of the plaintiff, as also Bhan Singh (PW-2) and Shaila Devi (PW-3) who have proved the pariwar register (Ext.PW-1/E).
13. It is not the case of the parties that relation between Jogu Ram and plaintiff were either strained or that they were residing separately. It is a fact that deceased Jogu Ram had no issue and defendant is his real nephew.
14. It also cannot be disputed, as is evident from the ocular evidence, that Jogu Ram was a rustic villager;
illiterate and a simpleton. Jogu Ram aged 75 years, died on 8.2.2007. The Will which is an unregistered document was ::: Downloaded on - 15/04/2017 19:17:05 :::HCHP 8 executed on 21.1.2007, just eighteen days prior to his death.
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15. Plaintiff, as is evident from the amended plaint, categorically pleaded fraud and misrepresentation. Also it is her case, so emerging from the record, that the execution of the Will is shrouded with suspicious circumstances.
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16. Under these circumstances, onus to prove the Will is on the propounder.
rt
17. There is no cogent evidence, establishing the fact that the defendant ever served or stayed with Jogu Ram. Though it has come on record that last rites were performed by the defendant but then one cannot lose sight of the fact that customarily in the absence of any direct male descendant, falling within Class-I heir, last rites are normally performed by a male lineal descendant (collateral). But then this would not mean that rights of Class-I heirs, specifically protected by law, would automatically stand ignored and defeated. There is no custom to such effect.
18. Undisputedly the Will is scribed by an Advocate namely Sh. Ram Dayal Rathour (DW-1), according to whom, ::: Downloaded on - 15/04/2017 19:17:05 :::HCHP 9 on the asking of Jogu Ram he prepared the Will, which was signed by Chaman Lal (DW-2) as an attesting witness. Bhag .
Chand (DW-4) signed it as an identifier and as a witness.
But perusal of the document reveals that there is only one attesting witness i.e. Chaman Lal and not Bhag Chand who has signed only as an identifier. His version is uninspiring of and the witness not worthy of credence. He admits to have been interrogated by the police in connection with a rt complaint filed by the plaintiff under the provisions of Section 420 of the Indian Penal Code. His version that Jogu Ram had desired bequeathing his immoveable property in favour of his nephew Shiv Chand is absolutely uninspiring in confidence. It is not the case of the parties that Jogu Ram was a litigant; familiar with the legal procedures or functioning of the Courts. Even by conduct, he had not expressed such desire, for it is not the case of the defendant that even during the life time of Jogu Ram he used to till the land. The Will, even according to the scribe was executed in the house of Jogu Ram where Chaman Lal and Bhag Chand had reached before him. Who and how this witness was brought remains unproven on record. Even ::: Downloaded on - 15/04/2017 19:17:05 :::HCHP 10 he does not state who took him, for it is not that Jogu Ram knew him from before and that he went to the Court or to .
his office. Why would this witness visit the house of the testator, remains unexplained, for after all it is not his case or that of the defendant that Jogu Ram knew him from before and reposed confidence only in him. He never of advised the testator of getting the Will registered. Why so?
he does not disclose. Yet he got his photograph affixed on rt the Will. His version that Jogu Ram was not unwell and was of sound disposing state of mind cannot be said to be inspiring in confidence for under normal circumstances the testator, who died within eighteen days, would have come to the office of the Advocate or the Court complex. The Will, scribed in Hindi, bears thumb impression of Jogu Ram. The scribe could have very well written that Bhag Chand signed both as a witness and an identifier, which he did not do so.
Also if the scribe knew Jogu Ram from before, then where was the question of getting the testator identified from a third person. Also Will does not assign any special reason for bequeathing the immoveable property in favour of the defendant. Testimonies of Chaman Lal (DW-2) and Bhag ::: Downloaded on - 15/04/2017 19:17:05 :::HCHP 11 Chand (DW-4) also cannot be said to be inspiring in confidence. Bhag Chand is the Nambardar of the area. He .
does not convincingly depose any special reason, which prompted Jogu Ram to divest the plaintiff from his immoveable property.
19. One cannot ignore the fact that the property in of question is a huge chunk of land of approximately 22 bighas having high value and great potential of being put to rt commercial use. The will was executed just eighteen days prior to the death. While ascertaining the intent of the testator, Court is duty bound to factor all attending circumstances in the execution of a valid Will. Lower appellate Court found the Will not to have been signed by two attesting witnesses. Such findings are correct. In law there is no bar for either the identifier or the scribe to be an attesting witness [S.R. Srinivasa and others vs. S. Padmavathamma, (2010) 5 SCC 274; Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas Kataria, (2008) 15 SCC 365;
Mathew Oommen vs. Suseela Mathew, (2006) 1 SCC 519;
Pentakota Satyanarayana and others vs. Pentakota Seetharatnam and others, (2005) 8 SCC 67; N. Kamalam ::: Downloaded on - 15/04/2017 19:17:05 :::HCHP 12 (Dead) & another vs. Ayyasamy & another, (2001) 7 SCC 503; M.L. Abdul Jabbar Sahib vs. M.V. Venkata Sastri & Sons .
and others, (1969) 1 SCC 573; and Durgi Devi & others vs. Krishan Chand & another, Latest HLJ 2014 (HP) 1338], but then such fact needs to be pleaded and proved by leading clear, cogent and consistent piece of evidence, which in the of instant case is missing. As already observed, testimonies of the witnesses so examined by the defendant cannot be said rt to be inspiring in confidence on the question of execution of a valid will.
20. Substantial questions of law which stand considered cumulatively are answered accordingly.
21. Reference of decisions rendered by various courts of the land is of no avail to the appellant. However it is reflective of the Counsel's industry.
22. Hence, in my considered view, there is no merit in the present appeal and the same is accordingly dismissed. It cannot be said that the judgment passed by the lower appellate Court is based on incorrect and incomplete appreciation of facts and material placed on ::: Downloaded on - 15/04/2017 19:17:05 :::HCHP 13 record by the parties or that the same is perverse which has resulted into miscarriage of justice.
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Pending application(s), if any, also stand disposed of accordingly.
(Sanjay Karol), of Judge.
November 3 , 2015 (PK)
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