Himachal Pradesh High Court
Vikram Singh And Others vs Tota Ram (Since Deceased) Through L.Rs on 29 March, 2017
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 392 of 2005.
Reserved on: 02.03.2017.
.
Decided on: 29.03.2017.
Vikram Singh and others ....Appellants.
Versus
Tota Ram (since deceased) through L.Rs ... Respondents.
of
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 Yes rt For the appellants. : Mr. G.D. Verma, Sr. Advocate with Mr. B.C. Verma, Advocate.
For the respondents : Ms. Ruma Kaushik, Advocate. Ajay Mohan Goel, Judge.
By way of this appeal, the appellant/defendant has challenged the judgment and decree passed by the Court of learned District Judge, Hamirpur, in Civil Appeal No. 110 of 2004, dated 18.06.2005, vide which, learned Appellate Court has set aside the judgment and decree passed by the Court of learned Civil Judge (Jr. Divn.) Barsar, in Civil Suit No. 204 of 1997 (RBT No. 141/98), dated 30.09.2004, whereby learned trial Court had dismissed the suit of plaintiff seeking relief of declaration and consequential relief of permanent prohibitory injunction.
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 22:05:19 :::HCHP 22. Brief facts necessary for the adjudication of this case are that plaintiff Tota Ram (since deceased) filed a suit that he was owner .
in possession of land comprising Khata No. 26, Khatauni No. 26, Khasra Nos. 208, 221, 365 and 381, Kita 4, area measuring 5 kanals 4 marlas, situated in tika Nohan, Tappa Dhatwal, Tehsil Barsar, District Hamirpur, (HP) (hereinafter referred to as 'suit land'). As per of plaintiff, Beli Ram s/o Lala, resident of tika Khalawat, Tappa Dhatwal, Tehsil Barsar, District Hamirpur, (HP) was the last male rt holder in possession of suit land who died on 11.07.1994. Plaintiff and defendant No. 3 were from the family of Beli Ram and Beli Ram was his real uncle. As per plaintiff, Beli Ram was looked after and maintained by him and was provided all the amenities of life, love and care by him. Plaintiff used to cultivate the suit land alongwith land situated in tika Khalawat on behalf of Beli Ram for last more than 30 years and at the time of filing of suit, he was in possession of the land.
As per plaintiff, out of love and affection, Beli Ram had executed a valid registered Will in his favour when he was in sound disposing mind. Beli Ram died on 11.07.1994 in his house at the age of 95 years. According to plaintiff, defendant No. 1 Vikram Singh had no concern with deceased Beli Ram nor defendant No. 1 took care of Beli Ram or maintained him during his life time. As per plaintiff, ::: Downloaded on - 15/04/2017 22:05:19 :::HCHP 3 defendant No. 1 at his back got mutation No. 201 attested in his favour on 17.01.1996 on the basis of a forged and fictitious Will .
purported to have been executed by Beli Ram. As per plaintiff, Beli Ram at the time of his death was suffering from Asthma and he was bed ridden and six months before his death he had lost all his senses and he was thus neither in a position to execute any Will nor he had of executed any Will in favour of defendant No. 1. It was further the case of plaintiff that on the basis of said fictitious, wrong and illegal rt mutation bearing No. 201, defendant No. 1 transferred some part of suit land in favour of Smt. Saroj Kumari (defendant No. 2) not only at the back of plaintiff but without any right, title or interest over the suit land which transfer was null and void. As per plaintiff, defendant No. 1 also transferred some part of suit land in favour of defendants No. 4 and 5 on 21.04.1997, which transfer was also null and void and was not binding on the plaintiff as defendant No. 1 had no right to alienate the property. As per plaintiff, in the first week of April, 1997, defendants No. 1 and 2 entered upon the suit land and forcibly cut and lopped some branches of Biyuhal trees standing on the same and plaintiff was threatened with dire consequences if plaintiff entered and tried to harvest wheat crop sown by plaintiff on the suit land.
::: Downloaded on - 15/04/2017 22:05:19 :::HCHP 4Accordingly, the suit was filed by the plaintiff praying for the following reliefs.
.
"It is, therefore, prayed that a decree for declaration with the consequential relief of permanent prohibitory injunction that the plaintiff is owner in possession of land comprising Khata No. 26, Khatauni No. 26, Khasra Nos. 208, 221, 365 and 381, Kita 4 area measuring 5 kanals 4 marlas, according to jamabandi for the year 1991-92 situated in tika Nohan, Tappa Dhatwal, Tehsil Barsar, District Hamirpur of (HP) and the defendants have no right or title to it. The defendants No. 1, 2, 4 and 5 be restrained from interfering or alienating the suit land in any manner on the basis of rt false, illegal and fictitious mutation No. 201, dated 17.01.1996 and 207 dated 7.6.1996, may kindly be passed in favour of plaintiff and against the defendants No. 1, 2, 4 and 5 alongwith costs of the suit."
3. In their written statement, defendants No. 1 and 2 contested the suit of the plaintiff on the ground that plaintiff in fact was never in possession of the suit land and rather the land which was owned by deceased Beli Ram stood inherited by defendant No. 1 and as he was in possession of the same, accordingly, he sold the same to defendant No. 2 and one Pawan Kumar and Pankaj who thereafter were in possession of the same. Preliminary objection was also taken that as necessary parties were not impleaded as defendants, the suit was bad for non-joinder of necessary parties. On merits, it was mentioned that defendant No. 1 was son of the daughter of deceased Beli Ram and plaintiff had no concern and no relation with the ::: Downloaded on - 15/04/2017 22:05:19 :::HCHP 5 deceased. As per defendant No. 1, he had looked after Beli Ram and even performed his last rites and when Will was executed by Beli .
Ram in his favour on 16.05.1994, deceased was in disposing state of mind and the Will was executed by Beli Ram voluntarily and was a genuine document. It was further the case of defendants No. 1 and 2 that no Will was executed by Beli Ram on 12.12.1988 in favour of of plaintiff and said document was not genuine. It was further mentioned in the written statement that if Will executed by Beli Ram in favour of rt plaintiff was proved to have been executed in accordance with law, even then the last Will, which was in favour of defendant No. 1 should prevail. On these grounds, the suit was contested by defendants No. 1 and 2.
4. Defendant No. 3 admitted the case of the plaintiff whereas defendants No. 4 and 5 Pankaj Kumar and Pawan Kumar also contested the same on the ground that plaintiff was never in possession of the suit land and the same was owned by Beli Ram which was succeeded by defendant No. 1 who remained in possession thereof and who sold the same to defendants No. 4 and 5, who thereafter were in exclusive possession of the same.
5. On the basis of pleadings of the parties, learned trial Court framed the following issues:-
::: Downloaded on - 15/04/2017 22:05:19 :::HCHP 6"1.Whether the plaintiff is the owner in possession of the suit land as alleged? OPP.
2. Whether late Shri Beli Ram executed a valid 'Will' on 12.12.1988 in favour of the plaintiff as alleged? OPP.
.
3. Whether the mutations No. 201 and 207 are wrong and illegal as alleged? OPP.
4. Whether the plaintiff is entitled to the injunction as prayed for? OPP
5. Whether the plaintiff has a cause of action? OPP
6. Whether the plaintiff has the locus-standi to sue? OPP
7. Whether the suit is bad for non-joinder of necessary parties? OPD of
8. Whether the suit is time barred? OPD
9. Whether the suit is not maintainable in the present form? OPD
10. Whether the late Shri Beli Ram executed a valid 'Will' on 16.05.1994 in favour of the defendant No. 1 as alleged, if so, its effect? OPD. rt
11. Whether the defendants No. 2, 4 and 5 bonafide purchasers for consideration as alleged. If so, its effect? OPD
12. Whether the defendants are entitled to special costs u/s 35-A of C.P.C. as claimed. If so, their quantum? OPD.
13. Relief."
6. On the basis of evidence led by the parties both ocular as well as documentary in support of their respective cases, the issues so framed were answered by the learned trial Court in the following manner:-
"Issue No.1 : No.
Issue No. 2 : Yes.
Issue No. 3 : No.
Issue No.4 : No.
Issue No.5 : Yes.
Issue No. 6 :Yes.
Issue No. 7 :Not pressed.
Issue No. 8 :Not pressed.
Issue No. 9 :Not pressed.
Issue No. 10 :Yes.
Issue No. 11 :Yes.
Issue No. 12 :Not pressed.
Relief :The suit of the plaintiff is dismissed as per
operative part of the judgment."
::: Downloaded on - 15/04/2017 22:05:20 :::HCHP
7
7. Learned trial Court vide its judgment and decree dated 30.09.2004 dismissed the suit of the plaintiff by holding that though .
late Beli Ram had executed a valid Will dated 12.12.1988 in favour of plaintiff but he had later on executed a valid Will in favour of defendant No. 1 on 16.05.1994. Learned trial Court also held that plaintiff was not owner in possession of the suit land and mutation of No. 201 and 207 were neither wrong nor illegal. It further held that defendants No. 2, 4 and 5 were bonafide purchasers of the suit land rt from defendant No. 1 on consideration. While returning the said findings, it was held by learned trial Court that during the course of arguments learned counsel for defendants had not disputed the factum of execution of Will dated 12.12.1988 Ext. PW2/A. Thereafter, learned trial Court observed that bone of contention thus remained as to whether Beli Ram had in fact executed a valid Will dated 16.05.1994 in favour of defendant No. 1 or not. It further held that defendant No. 1 Vikram Singh who had entered the witness box as DW1 deposed that Beli Ram had looked after his education and expenses of his marriage were also borne by him (Beli Ram) and later all basic amenities of life were provided to Beli Ram by him. Learned trial Court also held that Beli Ram had executed a legal and valid Will on 16.05.1994 in favour of defendant No. 1 when he was in a sound ::: Downloaded on - 15/04/2017 22:05:20 :::HCHP 8 disposing mind. Learned trial Court further held that Dev Raj (DW2), Registration Clerk in the office of Registrar, Barsar had produced Will .
dated 16.05.1994 Ext. DW2/A and DW3 Laxmi Dutt, who was Registrar, Barsar at the time of execution of Will Ext. DW2/A had also stated that said Will was registered in his presence in accordance with law. Learned trial Court further held that this witness deposed in of his cross examination that testator was identified to his satisfaction by Shri G.D. Sharma, Advocate. Learned trial Court also held that DW4 rt Shri G.D. Sharma, Advocate had stated that he identified late Shri Beli Ram before the Registrar and Will was drafted by Shri R.C. Bhardwaj, Advocate and read over and explained to the testator who thereafter affixed his thumb impression on the same. Learned trial Court also held that DW5 Prithi Singh also deposed that Beli Ram was looked after by defendant No. 1. It further held that it had nowhere come in evidence that testator Beli Ram was not in sound disposing mind at the time of execution of Will dated 16.05.1994. It was thus held by learned trial Court that there was nothing on record to prove suspicious circumstances nor there was anything to prove that will dated 16.05.1994 was not executed in accordance with law and on these bases, learned trial Court dismissed the suit filed by the plaintiff.
::: Downloaded on - 15/04/2017 22:05:20 :::HCHP 98. In appeal, learned Appellate Court set aside the judgment and decree so passed by the learned trial Court and decreed the suit of .
the plaintiff. Learned Appellate Court declared plaintiff to be owner in possession of the suit land on the basis of Will executed by Beli Ram, dated 12.12.1988, Ext. PW2/A and also declared mutation No. 201, dated 17.01.1996 to be wrong, illegal and void and it also set aside of mutation No. 207, dated 07.06.1996. Learned appellate Court also restrained defendants No. 1, 2, 4 and 5 from interfering with the rt ownership and possession of the plaintiff of suit land by issuing a decree of perpetual injunction.
9. While arriving at the said conclusions, it was held by the learned Appellate Court that Will Ext. DW2/A purported to have been executed by Beli Ram in favour of defendant No. 1 was shrouded in highly suspicious circumstances and defendant No. 1 had failed to repel the said suspicious circumstances surrounding due execution of said Will. Learned appellate Court held that in fact defendant No. 1 was present with the testator of Will at the time of execution of Will Ext. DW2/A. Learned Appellate Court held that testator in the presence of defendant No. 1 could not have had understood the implications of a document like Will. Learned Appellate Court disbelieved defendant No. 1 that in fact testator had visited Tehsil ::: Downloaded on - 15/04/2017 22:05:20 :::HCHP 10 headquarters of his own. Learned Appellate Court also held that it appeared that defendant No. 1 was interested in grabbing the estate of .
Shri Beli Ram and had taken him from his house to Tehsil office.
Learned Appellate Court held that defendant No. 1 had played an active and leading part in arranging the execution of Will and he was the sole legatee under the Will. Learned Appellate Court also held that of unlike other documents, Will speaks from the death of the testator and, therefore, as the executor of the Will was never available for rt deposing as to what were the circumstances in which the Will came to be executed, this aspect introduced an element of solemnity in the decision of question whether the document propounded is proved to be the last Will and testament of the testator or not. Learned Appellate Court also held that there was no explanation for revocation of the registered Will dated 12.12.1988 Ext. PW2/A. Learned Appellate Court also held that there was no explanation in the Will as to why the sole surviving daughter of the testator was excluded from the estate of the testator. Learned Appellate Court also disbelieved the version of defendant No. 1 that he was living with Beli Ram since the age of four years on the ground that this was not so recorded in the Will and further defendant No. 1 in his cross examination had admitted that in the books of Gram Panchayat, he was recorded as separate in mess ::: Downloaded on - 15/04/2017 22:05:20 :::HCHP 11 and worship from Shri Beli Ram. Learned Appellate Court also held that Beli Ram was reflected as the only member of his family in the .
Parivar Register. Learned Appellate Court also held that Beli Ram in fact was putting up in village Khalawat, Tappa Dhatwal, Tehsil Barsar whereas defendant No. 1 was putting up in village Guan, Pargana Ajmerpur, Tehsil Ghumarwin and there was no documentary evidence of for establishing that defendant No. 1 had his schooling in the area of Tappa Dhatwal. Learned Appellate Court also held that records rt revealed that Will Ext. DW2/A was attested by DW4 Shri G.D. Sharma, Advocate and one Shri Ravinder Singh who was the real brother of defendant No. 1. Learned Appellate Court also held that in his cross examination defendant No. 1 admitted that he knew Shri G.D. Sharma, Advocate for last many years and in any case prior to the execution of the impugned Will.
10. Learned Appellate Court further held that in fact the factum of registration of Will dated 12.12.1988 by Beli Ram in favour of plaintiff was duly established as defendant No. 1 had conceded issue No. 2 before learned Lower Court. Learned Appellate Court also held that scrutiny of records demonstrated that defendant No. 1 wanted to keep Will Ext. DW2/A a closely guarded secret and that is why, said Will was got prepared from a Lawyer as Lawyers did not ::: Downloaded on - 15/04/2017 22:05:20 :::HCHP 12 maintain the record of documents/prepared by them. It further held that immediately after attestation of mutation of the suit land in favour .
of defendant No. 1 on 17.01.1996 he sold portion of same in favour of defendant No. 2 on 26.02.1996. Learned Appellate Court thus concluded that on the basis of available documents on record defendant No. 1 had miserably failed to establish due execution of of Will Ext. DW2/A by Shri Beli Ram in his favour and said Will was in fact shrouded with suspicious circumstances which defendant No. 1 rt had failed to repel. On these bases, learned Appellate Court held that learned trial Court had not correctly appreciated oral and documentary evidence on record and had erroneously answered Issues No. 1, 3, 4, 9, 10 and 11 against the plaintiff. Learned Appellate Court also held that after the death of Beli Ram, plaintiff had become owner in possession of the suit land and thus, attestation of mutation No. 201 of the suit land in favour of defendant No. 1 on 17.01.1996 was wrong, illegal and not binding on the plaintiff. It further held that Will Ext.
DW2/A executed by Shri Beli Ram in favour of defendant No.1 was wrong, illegal and void.
11. Feeling aggrieved by the said judgment, defendants/ respondents have filed this appeal.
::: Downloaded on - 15/04/2017 22:05:20 :::HCHP 1312. I have heard learned counsel for the parties and also gone through the records of the case as well as the judgments passed by .
both the learned Courts below.
13. This appeal was admitted on 02.08.2005 on the following substantial questions of law:
"1. Whether appellant No. 1 has pleaded and established on record due execution of Will Exhibit DW2/A and this of document is legal and valid.?
2. Whether respondent No. 1 has neither pleaded nor proved due execution of Exhibit PW2/A, therefore, he acquired no rt right title and interest of any kind over property in suit?
3. Whether the sale-transactions on behalf of appellant NO. 1, in favour of appellants No. 2 to 4 having not been challenged specifically by respondents, therefore, he is not entitled to any relief because without getting the same cancelled, title continue to vest in appellants No. 2 to 4?
4. Whether the Will Ext. DW-2/A could not be held to be invalid on the founds that deceased Beli Ram was 95 years of age and that he was not having sound disposing mind, whereas on the contrary, the witness as produced by the appellants about good senses, sound disposing mind and good helath of late Shri Beli Ram have not been cross examined nor any challenge has been thrown?"
14. For the sake of brevity and to avoid repetition, I will deal with substantial questions of law No. 1 and 4 together.
Substantial questions of law No. 1 and 4:
15. Will Ext. DW2/A has been propounded by defendant No. 1 which as per defendant No. 1 was executed by testator Beli Ram in ::: Downloaded on - 15/04/2017 22:05:20 :::HCHP 14 his favour on 16.05.1994. Learned trial Court while deciding Issue No. 10 held that Beli Ram had executed valid Will Ext. DW2/A dated .
16.05.1994 in favour of defendant No. 1. However, learned Appellate Court has reversed the said findings returned by the learned trial Court and has held that Will Ext. DW2/A was shrouded in highly suspicious circumstances and that defendant No. 1 failed to repel the suspicious of circumstances surrounding the due execution of said Will by Beli Ram in his favour.
16. rt Will Ext. DW2/A is stated to be witnessed by Shri G.D. Sharma, Advocate and Shri Ravinder Singh s/o Shri Piar Singh.
Incidentally, Shri Ravinder Singh is the real brother of propounder of said Will, namely, Shri Vikram Singh (defendant No. 1). Vikram Singh deposed in the Court as DW1 that testator Beli Ram was his grand father "Nana". He further deposed that Beli Ram had two daughters, namely, Santokhu and Dharmi Devi and that Beli Ram had no son. He further deposed that Santokhu was his mother. This witness further deposed that he was staying with his "Nana" from the tender age of 4 years and Beli Ram had educated him and also his marriage also took place under Beli Ram. He further deposed that Beli Ram was looked after by him. This witness deposed that Will Ext.
DW2/A, dated 16.05.1994 was in fact executed by Beli Ram in his ::: Downloaded on - 15/04/2017 22:05:20 :::HCHP 15 favour and mutation on the basis of which was attested in his favour.
In his cross examination, this witness deposed that said Will was .
executed by Beli Ram in his favour about 3 months before his death.
He denied the suggestion that Beli Ram had not executed any Will as Beli Ram was not in his senses to have had executed the said Will.
Further in his cross examination, he admitted that Beli Ram was an of ex-serviceman and was drawing his pension from PNB, branch Maharal. He also admitted the suggestion that there was a ration card rt in the name of Beli Ram. He further stated in his cross examination that in Panchayat Parivar Register, name of Beli Ram was entered alone. He further stated that Tota Ram (plaintiff) was the nephew of Beli Ram. This witness further stated that when Beli Ram bequeathed the property in his favour by way of execution of Will, he (defendant No. 1) had brought Beli Ram for the said purpose. He further stated that at the time of attestation of mutation, no intimation was sent to Tota Ram or the daughters of Beli Ram as the Will was in his (defendant No. 1) favour. He denied the suggestion that Beli Ram was very weak on account of his illness and that Beli Ram was not in a position to move. He further stated that he had not asked Beli Ram to call for Pradhan or any Panchayat member at the time of execution of Will. He further deposed that Beli Ram had asked the witnesses to ::: Downloaded on - 15/04/2017 22:05:20 :::HCHP 16 remain present for the purpose of attesting the Will and that the witnesses had come to Tehsil of their own. He further stated that he .
knew the witnesses quite well. He denied the suggestion that land of Beli Ram was cultivated by Tota Ram and stated that it was cultivated by Beli Ram himself. He denied that no Will was executed in his favour.
of
17. DW2 Dev Raj, Registration Clerk in the office of Tehsildar Barsar entered the witness box as DW2 and he proved Will, rt photocopy of which is Ext. DW2/A.
18. DW3 Shri Laxmi Dutt s/o Shri Bihari Singh entered the witness box as DW3 and stated that he served as Tehsildar/Sub Registrar, Barsar from the year 1990 to 1994 and Will Ext. DW4/A was read over by him to Beli Ram, who after acknowledging it to be correct had appended his thumb impression over the same in front of witnesses G.D. Sharma and Ravinder Singh and thereafter they had appended their signatures on the same and at that time Beli Ram was in his senses. In his cross examination, he stated that he did not know Beli Ram and he admitted the suggestion that word "shinakhat karta"
was not mentioned on the Will. He self stated that G.D. Sharma, Advocate (witness No. 1) had identified the testator and that he was construed by him as an identifier.::: Downloaded on - 15/04/2017 22:05:20 :::HCHP 17
19. DW4 G.D. Sharma, Advocate deposed in the Court that Will in issue was drafted by Shri R.C. Bhardwaj, Advocate and the .
Will was thereafter read over and explained to Beli Ram who after acknowledging it to be correct appended his thumb mark over the same and thereafter said Will was presented before the Tehsildar and Tehsildar also read the same to the Executor who after acknowledging of the contents of same to be correct appended his thumb mark on the endorsement over the same. Incidentally, in his examination in chief rt this witness deposed that he had identified the testator. He also stated that Ravinder Singh was the other witness. In his cross examination, he stated that he knew the propounder of the Will Ext. DW2/A Shri Vikram Singh for the last 4-5 years. He further stated that he did not remember who came alongwith Beli Ram on the relevant day. He also stated that he knew witness Ravinder for more than 1 ½ years before the Will was executed.
20. Now, one thing which is apparent from the perusal of statements referred to above is that in the present case, propounder of the Will admittedly has played an active role at the time of the execution of the Will. Propounder of the Will has in fact admitted that he took the testator of the Will for the purpose of executing the same.
The scribe of the Will R.C. Bhardwaj, Advocate was not examined in ::: Downloaded on - 15/04/2017 22:05:20 :::HCHP 18 the Court as he was no more. Out of two so called marginal witnesses of Will Ext. DW2/A, DW4 Shri G.D. Sharma, Advocate was .
examined whereas other marginal who happened to be the real brother of propounder of Will was not examined by defendant No. 1 in the Court. DW4 G.D. Sharma, Advocate deposed in the Court that he had in fact identified the executor and his signatures were also on the Will.
of In other words, he has not deposed in the Court that he had appended his signatures upon the Will as witness to execution of the same. It is rt well settled principle of law that a person who is a marginal witness to a Will cannot ipso facto also deemed to be identifier of the testator until and unless it is so specifically mentioned in the Will itself by way of an express endorsement to this effect. A perusal of Will Ext.
DW2/A demonstrates that name of Shri G.D. Sharma, was mentioned therein as witness No. 1. Concerned Registrar before whom the said Will was purportedly registered has stated that he did not know Beli Ram personally. It has not been disputed during the course of arguments by the learned counsel for the parties that Beli Ram was more than 95 years old at the time when alleged Will Ext. DW2/A was executed. Now, as per DW1 Vikram Singh, testator of the Will was in good health at the time of execution of the Will. However, a perusal of contents of this Will (Ext. DW2/A) demonstrates that it is ::: Downloaded on - 15/04/2017 22:05:20 :::HCHP 19 mentioned therein that testator was in fact an aged man and as he was apprehensive that death may occur any time as he always remained .
sick, therefore, in these circumstances, he was executing the Will. The reason given by the propounder as to why Will was executed in his favour by testator Beli Ram was that he was residing with Beli Ram since the age of four years and had been brought up and educated and of even married by Beli Ram and thereafter he had in fact looked after Beli Ram. However record demonstrates that in the Parivar register of rt Beli Ram, defendant No. 1 did not find mention therein. In these circumstances, taking into consideration the fact that the testator of the Will was more than 95 years old and further that the propounder of the Will has played a very significant role in execution of the Will and that both the witnesses were personally known to the propounder of the Will, one of whom happened to be his real brother and the other witness though recorded in the Will Ext. DW2/A as a marginal witness to the Will has deposed that he in fact had identified the executor, all these factors shroud the said Will with suspicious circumstances and the findings returned to this effect by the learned Appellate Court that the Will was in fact shrouded with suspicious circumstances cannot be termed to be perverse as the same are borne out from the records of the case and the propounder of the Will has ::: Downloaded on - 15/04/2017 22:05:20 :::HCHP 20 not been able to satisfactorily explain the said suspicious circumstances.
.
21. The contention of the appellant that learned Appellate Court ignored the fact that no suggestion was put to defendant No. 1 that Beli Ram was suffering from ill health is incorrect as there was a specific suggestion put to this witness in the cross examination that no of Will was executed in his favour and that Beli Ram was not in his senses and both these suggestions were denied by him. Not only this, rt he also admitted in his cross examination that at the time of his death, Beli Ram was 96 years old and before his death, Beli Ram was suffering from loose motions and also from fever.
22. Therefore, I hold that appellant No. 1 failed to prove on record due execution of Will Ext. DW2/A and he also failed to prove that said Will was not shrouded with suspicious circumstances or that testator therein Shri Beli Ram, who was about 95 years old, was having a sound disposing mind at the time when Will Ext. DW2/A was purportedly executed. The findings returned by the learned Appellate Court to this effect are duly borne out from the records of the case and learned Appellate Court has rightly come to the conclusion that defendant No. 1 was not able to explain the suspicious circumstances which shrouded Will Ext. DW2/A. ::: Downloaded on - 15/04/2017 22:05:20 :::HCHP 21 Therefore, I uphold the findings returned by the learned Appellate Court to the effect that Will Ext. DW2/A was shrouded with .
suspicious circumstances and defendant No. 1 failed to prove it in accordance with law and that the propounder of the Will was not able to prove that Beli Ram was not in a sound disposing statement of mind when he purportedly executed Will Ext. DW2/A. The said of substantial questions of law are answered accordingly Substantial Question of law No. 2:
23. rt Learned trial Court had framed issue No. 2 to the effect that as to whether late Shri Beli Ram had executed a valid Will on 12.12.1988 in favour of plaintiff as alleged? Said issue was decided in favour of plaintiff by the learned trial Court. This was done by returning the following findings.
"During the course of arguments the Ld. Counsel for the defendant has not disputed the factum of execution of Will dated 12.12.1988 Ext. DW2/A. Rather he has stated that defendant succeeded to the Estate of plaintiff on the basis of Will dated 16.05.1994 Ext. DW3/A. It is a valid and genuine document and as such mutation No. 201 and 207 have been entered in accordance with law."::: Downloaded on - 15/04/2017 22:05:20 :::HCHP 22
24. As learned trial Court dismissed the suit filed by the plaintiff, the judgment and decree so passed by the learned trial Court .
was assailed by him. The findings returned on Issue No. 2 by the learned trial Court were neither assailed by the present appellants either by way of any independent appeal or by way of cross-
objections in the appeal filed by plaintiff Tota Ram before the learned of first Appellate Court. At the cost of repetition it is reiterated that findings on Issue No. 2 were not returned by learned trial Court on rt merit but these findings were returned on the basis of admission made on behalf of the defendants. There is nothing on record from which it can be inferred that any review was filed against the findings so returned by the learned trial Court. This demonstrates that the findings returned by the learned trial Court that the execution of Will Ext.
PW2/A was in fact admitted by defendants is a correct finding based on the admission so made by the defendants before the learned trial Court. It has also been so held by the learned Appellate Court.
Therefore, now it is not open to the appellants to challenge the findings so returned by the learned trial Court, especially in view of the fact that the findings so returned by the learned trial Court were based on the admission made by the defendants to the effect that they did not dispute the factum of execution of Will Ext. PW2/A dated ::: Downloaded on - 15/04/2017 22:05:20 :::HCHP 23 12.12.1988 and rather that their claim was that they had succeeded to the estate of plaintiff on the basis of Will dated 16.05.1994 Ext.
.
DW2/A. The said substantial question of law is answered accordingly.
Substantial Question of Law No. 3:
25. Sale transactions subject matter of the present litigation made by defendant No. 1 in favour of defendant No. 2 Smt. Saroj of Kumari and defendants No. 4 and 5 Shri Pankaj Kumar and Shri Pawan Kumar respectively are dated 26.02.1996 and 21.04.1997 rt which are mark A and mark B on the records of the case. It is a matter of record that no relief of declaration has been sought by the plaintiff to the effect that these two sale deeds be declared as null and void and bad in law. Record further demonstrates that the suit was instituted by the plaintiff before the learned trial Court on 25.04.1997 and amended plaint was filed on 28.03.1998. Sale deeds in issue pertain to the years 1996 and 1997, therefore, it is but apparent and evident that both the sale deeds stood executed before the filing of suit by the plaintiff. The fact of defendant No. 1 having alienated some portion of suit property in favour of defendant No. 2 and defendants No. 4 and 5 was categorically mentioned in the written statement so filed by the defendants before the learned trial Court, but even then, no declaration was sought thereafter by the plaintiff to the effect that the two sale ::: Downloaded on - 15/04/2017 22:05:20 :::HCHP 24 deeds be declared bad in law. Be that as it may, in the present case, when sale deeds were executed in favour of defendant No. 2 and .
defendants No. 4 and 5 respectively by defendant No. 1, he was as per records owner of the property as the property stood mutated in his favour on the basis of Will Ext. DW2/A which Will as on the dates of sale deeds was holding field as the same had not yet been assailed by of the plaintiff at that time. Therefore, as on the dates when defendant No. 2 and defendants No. 4 and 5 purchased land vide their respective rt sale deeds from defendant No. 1, as per the revenue records, defendant No. 1 was the owner of the property in issue as per records and plaintiff was in fact nowhere in picture. Therefore, in my considered view, as on the dates when the sale deeds were executed, revenue records reflected defendant No. 1 to be owner of the suit land, in the abovementioned background as defendant No. 1 was being reflected as owner in possession of the suit property in all revenue records on the strength of Will Ext. DW2/A it can be reasonably held that the sale deeds were entered into by defendant No. 2 and defendants No. 4 and 5 by purchasing the land from defendant No. 1 after taking reasonable care that transferor had power to make the transfer. There is nothing on record to infer that the transferees had not acted in good faith. Accordingly, in my considered view, besides ::: Downloaded on - 15/04/2017 22:05:20 :::HCHP 25 the fact that said sale deeds were not assailed by way of civil suit, the sale transactions which were entered into between defendant No. 1 .
and defendant No. 2 and defendants No. 4 and 5 respectively are protected under Section 41 of the Transfer of Property Act. However, remaining suit land, if any left out would obviously dwell upon the plaintiff and defendant No. 1 shall have no right, title or interest over of the same on the basis of Will Ext. DW2/A. It goes without saying that the remedy of the plaintiff otherwise also is to recover the rt consideration received by defendant No. 1 from defendants No. 2, 4 and 5 from defendant No. 1. This substantial question of law is answered accordingly.
26. In view of my findings returned above, the judgment and decree passed by learned Appellate Court is upheld to the extent that plaintiff is held to be owner in possession of the suit land pursuant to Will dated 12.12.1988, Ext. PW2/A and further Will Ext. DW2/A, dated 16.05.1994 is declared as wrong and illegal. It is further held that sale transactions entered into between defendant No. 1 with defendant No. 2 and defendants No. 4 and 5 are valid as protected under Section 41 of the Transfer of Property Act and judgment and decree passed the learned Appellate Court declaring mutation No. 207, dated 07.06.1996 as null and void is accordingly set aside.
::: Downloaded on - 15/04/2017 22:05:20 :::HCHP 26Judgment and decree passed by learned Appellate Court restraining defendants No. 2, 4 and 5 from interfering with the suit land is .
modified to the extent that the said defendants are injuncted from interfering with the suit land less the land which they have bonafidely purchased from defendant No. 1. Judgment and decree passed by learned Appellate Court holding mutation No. 201, dated 17.01.1996 of to be bad in law is upheld but with clarification that the same has no effect on sale deeds executed by defendant No. 1 with defendant No. 2 rt and defendants No. 4 and 5 and judgment and decree passed by learned Appellate Court restraining defendant No. 1 from interfering over the suit land is also upheld. Appeal is partly allowed in the above terms. Pending miscellaneous application(s), if any, also stand disposed of. No orders as to costs.
(Ajay Mohan Goel) Judge 29th March, 2017.
(narender) ::: Downloaded on - 15/04/2017 22:05:20 :::HCHP