Himachal Pradesh High Court
Beant Kaur And Anr vs Coram on 12 July, 2019
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 513 of 2004.
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Reserved on : 3rd July, 2019.
Decided on : 12th July, 2019.
Beant Kaur and Anr. .....Appellants/defendants.
Versus Coram:
r to Inder Pal Singh Rana (since deceased) through his legal heirs and others ....Respondents/plaintiffs.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Appellants: Mr. Ramakant Sharma, Sr. Advocate with Mr. Dinesh Bhatia, Advocate.
For the Respondents: Mr. Rajneesh K. Lall, Advocate vice Mr. Sanjeev Sood, Advocate.
Sureshwar Thakur, Judge.
The plaintiffs' suit, for, rendition of a decree for declaration, and, also for rendition of a decree, for permanent prohibitory injunction, stood, under concurrently recorded verdicts, hence, decreed by both the learned courts below. The defendants/appellants 1 Whether reporters of the local papers may be allowed to see the judgment?
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herein are aggrieved therefrom, hence, institute the instant appeal before this Court.
2. Briefly stated the facts of the case are that one Smt. Karam Kaur, widow of Sh. Moti Singh was owner in possession of the suit land detailed in the plaint.
After the death of Moti Singh his estate vested in Karam to the extent of ½ share and in Smt. Shardi widow of Sh.
Moti Singh, predecessor-in- tile of the plaintiffs, and, after death of Shardi, her estate was inherited by son of Smt. Jit Kaur, plaintiffs No.1 to 3 and Sh. Surinder Pal Singh Rana. Sh. Surinder Pal Singh Rana died and his estate vested in his widow Smt. Paramjit Kaur, daughter Ekta Rana and Angad Singh. Plaintiffs No. 1 to 3 and their brother Sh. Surinder Pal Singh Rana had been serving, looking after and managing the estate of Smt. Karam Kaur. The plaintiffs are the successors of Smt. Jit Kaur daughter of Shardhi. Smt. Karam Kaur executed a will of her estate in favour of plaintiffs No.1 to 3 on 21.9.1981 to ::: Downloaded on - 29/09/2019 00:43:46 :::HCHP ...3...
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the extent of ¼ share and got the same registered. Shri Surinder Pal Singh Rana died. Smt. Karam Kaur came to village Jagatpur to join a function of retirement of Sh.
Avtar Singh. Sh. Raminder Pal Singh son of Plaintiff No.1 accompanied her from Kiratpur Sahib to Jagatpur and stayed in her home. Smt. Karam Kaur executed her last will on 31.1.1997 in faovur of the plaintiffs to provide for inheritance of her estate of the share of Surinder Pal Singh Rana. Smt. Karam Kaur died on 2.2.1997 and her last rites were performed by plaintiff No.1. The estate of Smt. Karam Kaur vested in the plaintiffs to the extent of ¼ share each. The defendants fabricated a will on 27.1.1997 alleged to have been executed by Smt. Karam Kaur which is the result of forgery and in alternative has been fabricated by way of mis-representation and fraud.
The mutation had been sanctioned in favour of defendant No.1, at the instance of defendant No.2, who was working in the office of SDO (Civil) Nalagarh. The plaintiffs are ::: Downloaded on - 29/09/2019 00:43:46 :::HCHP ...4...
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owners in possession of the land in suit and the defendants are threatening to interfere with the possession of the plaintiffs over the land in suit. So, the plaintiff filed the suit for declaration that they were owners in possession of the land in suit and the entries in the revenue record are wrong, illegal, void, invalid, malafide along with a decree for permanent injunction restraining the defendants from forcibly dispossessing and interfering in the possession of the plaintiffs over the land in suit.
3. The defendants contested the suit and filed written statement, wherein, it has been averred that Smt. Karam Kaur was the widow of Sh. Moti Singh. The plaintiffs did not have any concern with Smt. Karam Kaur and she was not being served by the plaintiffs. Smt. Karam Kaur used to reside in village Joghon and was patient of paralysis. The defendants were serving her and her last rites were performed by the defendants. The ::: Downloaded on - 29/09/2019 00:43:46 :::HCHP ...5...
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mutation of the estate of Smt. Karam Kaur had been attested in the names of the defendants on the basis of Will dated 27.1.1997 executed by Smt. Karam Kaur in favour of defendant No.1. Smt. Karam Kaur had executed her last will in favour of defendant No.1 The alleged Will dated 21.9.1981 and 31.1.1997 were manipulated. The mutation had been validly attested in favour of the defendant No.1. The defendant No.1 was absolute owner in possession of the suit land.
4. The plaintiffs filed replication to the written statement of the defendant(s), wherein, they denied the contents of the written statement(s), and, re-affirmed, and, re-asserted the averments, made in the plaint.
5. On the pleadings of the parties, the learned trial Court, struck, the following issues inter-se the parties at contest:-
1. Whether deceased Smt. Karam Kaur executed a legal and valid will on 21.9.1981 in favour of plaintiffs No.1 ::: Downloaded on - 29/09/2019 00:43:46 :::HCHP ...6...
to 3 and Surinder Pal Singh, .
predecessor-in-title of the plaintiffs No.4 to 6, as alleged?OPP.
2. Whether deceased Karam Kaur executed Will dated 31.1.1997 in favour of the plaintiffs ,as alleged? OPP.
3. Whether the plaintiffs are nearest legal heirs of deceased Smt. Karam Kaur, as alleged?OPP.
4. Whether deceased Smt. Karam Kaur executed a legal and valid will dated 27.1.1997 in favour of the defendant No.1, as alleged?OPD.
5. Whether this suit is not maintainable?OPD.
6. Whether the plaintiffs have no locus standi to file the present suit?OPD.
7. Whether the plaintiffs have no cause of action?OPD.
8. Relief.
6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed, the suit, of, the plaintiffs/respondents herein. In an appeal, preferred therefrom, by, the ::: Downloaded on - 29/09/2019 00:43:46 :::HCHP ...7...
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defendants/appellants herein, before the learned First Appellate Court, the latter Court dismissed, the, appeal, and, affirmed the findings recorded by the learned trial Court.
7. Now the defendant(s)/appellant(s) herein, have instituted the instant Regular Second Appeal, before, this Court, wherein they assail the findings, recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, on 24th November, 2004, this Court, admitted the appeal, instituted by the defendant(s)/appellant(s) against the judgment and decree, rendered by the learned first Appellate Court, on, the hereinafter extracted substantial question of law:-
1. Whether the findings of the learned first appellate Court are dehors the evidence on record and wrong application of law, particularly Section 60(c) of the Indian Succession Act?
Substantial question of Law No.1 :
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8. The deceased testator one Karam Kaur, allegedly executed three Wills, respectively on 21.9.1981, on 27.1.1997, and, on 31.1.1997. The testamentary disposition executed by deceased Karam Kaur, on 21.9.1981, and, borne in Ex.P-2, is, a registered testamentary disposition, (i) whereas, the subsequent thereto executed testamentary dispositions, respectively on 27.1.1997, and, on 31.1.1997, and, as respectively borne in Ex.D-1, and, in Ex. P-1, are, both unregistered testamentary dispositions. However, the Will propounded by the plaintiffs, and, as, embodied in Ex.P-2, stood concluded, by both the learned courts below, to stand proven, hence, to be validly, and, duly executed, by the deceased testator. The Will, borne in Ex.P-2, annuls the unregistered testamentary disposition, as, executed by deceased testator, and, as respectively borne in Ex.D-1, and, in Ex. P-1. Nonetheless, obviously hence both the learned courts below, proceeded to, concurrently ::: Downloaded on - 29/09/2019 00:43:46 :::HCHP ...9...
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pronounce rather qua the registered testamentary disposition, borne in Ex.P-2, and, executed by the deceased testator, hence prevailing over, the, subsequent thereto, executed unregistered testamentary dispositions, respectively borne in Ex.P-1, and, in Ex.D-1, her legatees, r as, to (I) AND, wherethrough, she, bestowed her estate, upon, recited therein. The afore pronouncements, as, concurrently recorded, by both the learned courts below, remain unchallenged, at the instance of the plaintiffs/respondents herein, and, the challenge thrown before this Court, by the aggrieved defendants, is centered, upon, both the learned courts below, despite, the scribe, and, marginal witness to Ex.
D-1, (ii) exhibit whereof comprises, an unregistered testamentary disposition, executed, vis-a-vis, the defendants, by the deceased testator, hence, within the statutory domain, of, Section 63 of the Indian Evidence Act, making unequivocally echoings, in their respective ::: Downloaded on - 29/09/2019 00:43:46 :::HCHP ...10...
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testification(s) qua (iii) the deceased testator, appending her thumb impression, upon Ex.D-1, respectively in their presence, and, thereafter each of the witnesses, also making their relevant signatures thereon, hence, also in the presence, of, the deceased testator, (iv) yet both the learned courts below proceeding to construe, qua it, not being proven to be validly, and, duly executed, by the deceased testator, rather merely, on anvil, of certain suspicious circumstances, surrounding, the, due and valid execution, of, Will borne, in Ex. D-1.
9. This court has proceeded to, keenly discern, the testification(s) respectively rendered by the scribe of Ex. D-1, namely, Pushpinder Singh, who stepped into the witness box as DW-3, as also, has, with circumspect care and precision, hence, perused the testification, of, a marginal witness thereto, one Randeep Singh, and, who stepped into the witness box as DW-4. However, though, in their, respectively recorded testifications, they ::: Downloaded on - 29/09/2019 00:43:46 :::HCHP ...11...
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rendered echoings, vis-a-vis, (a) the deceased terstator being possessed with, the, requisite compos mentis, (b) hers after being readover, and, explained, the contents borne in Ex.D-1, hers thereafter, in their respective presence(s), hence, appending her thumb impressions thereon, and, thereafter, in her presence, theirs also appending their signatures thereon.
r The afore testified
articulations, occurring, in, the testifications, as,
respectively rendered by the scribe, and, the marginal witness to Ex. D-1, do prima facie, fall within the sanctified, domain of Section 63 of the Indian Evidence Act, (c) and, when thereupon this Court, may proceed, to dis-concur hence with the findings recorded, by both the learned courts below, hence, irrevering their testifications. However, the mere factum, of the afore testifying, rather within the statutory parameters, as, encapsulated in Section 63, of, the Indian Evidence Act,
(d) would not per se constrain this Court, to mete ::: Downloaded on - 29/09/2019 00:43:46 :::HCHP ...12...
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deference, to their testifications, (e) as both, the, afore defendants' witnesses, as, is evident, from their respective cross-examinations, and, for the reasons to be assigned hereinafter, rather render their testifications being incredible, (f) given Ex. D-1 standing scribed, by the brother of the legatee, and, it being scribed in a grossly unnatural manner, and, the recitals borne therein, vis-a-vis, the deceased testator, hence during her life time, rather standing served by the defendants, also standing belied by the factum, given, the legatee, during, the course of his cross-examination, being unable to describe, the apt part of the body, of, the deceased testator, whereon she, stood afflicted with paralysis, (g) despite, DW-1 in his cross-examination rendering a testification, with clear echoings therein qua, at the time contemporaneous, to the deceased testator hence executing Ex.D-1, hers being afflicted with paralysis. The testification, of, the marginal witness, vis-a-vis, Ex. D-1, ::: Downloaded on - 29/09/2019 00:43:46 :::HCHP ...13...
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is also unamenable for any meteings, hence, of, any credence thereto, as, upon, a thorough reading, of his deposition, comprised in his cross-examination, he has acquiesced to a suggestion, put thereat, to him, by the counsel for the plaintiff, with, echoings therein, qua the regarding r to defendant rather assisting him in an earlier case, encroachments made by him, upon, government land, (h) thereupon, when he is a witness, who is deeply interested, in, rather furthering the espousal of the defendants, and, with no explanation, standing, meted, by the defendants, for theirs not joining any independent persons, as marginal witnesses to Ex. D-
1, (i) thereupon, when his testimony is stained, with, deep pervasive stains, of his hyper interestedness, vis-a-
vis, the, espousal of the defendants, (j) thereupon, dehors the factum, given his rendering, a, testification hence strictly in accordance with provisions, of Section 63 of the Indian Evidence Act, (k) yet would not incline ::: Downloaded on - 29/09/2019 00:43:46 :::HCHP ...14...
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this Court, to accept his testification, (l) rather this Court is constrained to conclude, that, the Will propounded by the defendants, and, borne in Ex. D-1, being stained with gross vices, and, it being executed, by the deceased testator, upon, the legatee(s) thereof, hence, exerting
10. The r above to undue influence, and, pressure upon her.
discussion, unfolds, that the conclusions as arrived by both the learned Courts below, being based, upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned courts below have not excluded germane and apposite material from consideration. Accordingly, the substantial question(s), of law are answered in favour of the respondents/plaintiffs, and, against the defendants/appellants.
11. In view of the above discussion, there is no merit in the instant appeal, and, it is dismissed accordingly. In sequel, the judgments, and, decrees, ::: Downloaded on - 29/09/2019 00:43:46 :::HCHP ...15...
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impugned before this Court are affirmed and maintained.
Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs.
Records be sent back forthwith.
(Sureshwar Thakur) 12 th July, 2019. Judge.
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