Himachal Pradesh High Court
Brij Lal (Since Deceased) Through vs Of on 11 November, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Regular Second Appeal No.270 of 2006.
.
Judgment Reserved on: 19.09.2016.
Date of decision: 11.11.2016
Brij Lal (since deceased) through ....Appellants-Plaintiffs
his LRs Manohar Lal & Ors.
Versus
of
Shakti Chand ..Respondent-Defendant
Coram
rt
The Hon'ble Mr.Justice Sandeep Sharma,Judge.
Whether approved for reporting ?1 Yes.
For the Appellants: Mr.Ankush Dass Sood, Senior Advocate
with Mr.Rakesh Kumar, Advocate.
For Respondents: Mr.G.D. Verma, Senior Advocate
No.1, 2, 4 to 6. with Mr.Romesh Verma, Advocate.
Sandeep Sharma,J.
This appeal has been filed by the appellants-
plaintiffs against the judgment and decree dated 24.03.2006, passed by learned District Judge, Hamirpur, District Hamirpur, H.P., reversing the judgment and decree dated 17.06.2004, passed by the learned Civil Judge(Junior Division)-1, 1st Class-I. Hamirpur, District Hamirpur, H.P., whereby the suit filed by late Smt.Geeta Devi, predecessor-
in-interest of the appellants-plaintiffs, has been decreed.
1Whether the reporters of Local Papers may be allowed to see the judgement?
::: Downloaded on - 15/04/2017 21:32:47 :::HCHP 22. The brief facts of the case are that late Smt.Geeta Devi, predecessor-in-interest of the appellants-
.
plaintiffs (herein after referred to as the `plaintiff'), filed a suit for declaration with consequential relief of permanent injunction against the respondent-defendant (hereinafter referred to as the `defendant') stating therein that she is owner in possession of the suit land comprised in Khata of No.70, Khatauni No.87, Khasra Nos.535/414, 555/453, 454, 557/470, Kita 4 measuring 10 Kanal 11 Marlas, situated in rt Tika Ramehra, Tappa Mehlta, Tehsil Bhoranj, District Hamirpur, H.P. and land comprised in Khata No.49, Khatauni No.83, Khasra Nos.1064, 1068, Kita 2 area 13 Marlas to the extent of 1/7th share and Khata No.46, Khatauni No.87, Khasra No.1092, area measuring 13 Marlas and Khata No.47, Khatauni No.88, Khasra No.1090, area 3 Marla, 1/7th share situated in Tika Loharni Mauza Mehlta, Tehsil Bhoranj, District Hamirpur, H.P. (herein after referred to as the `suit land').
3. It is averred in the plaint that plaintiff Geeta Devi was daughter and Smt.Kaulan Devi was wife of Shri Paras Ram. It is further averred that Shri Paras Ram also married Smt.Nikki Devi and Smt.Kalan Devi, who were died issueless. Thereafter, Shri Paras Ram was also died. It has been averred by the plaintiff that a portion of the suit land ::: Downloaded on - 15/04/2017 21:32:47 :::HCHP 3 was acquired by Smt.Kaulan Devi from her husband Shri Paras Ram. The plaintiff has further averred that she is the .
legal heir of Smt.Kaulan Devi, who died on 31.10.1993, and after the death of Smt.Kaulan Devi, she became owner in possession of the suit land. It has also been averred that the defendant is stranger to the suit land and has no right, title or interest over the same. It has been averred that the of defendant started interfering with the ownership and possession of the plaintiff over the suit land with effect from rt the 1st week of February, 1994 on the ground of execution of Will dated 25.10.1993, purported to have been executed in his favour by Smt.Kaulan Devi. It has further been pleaded that Smt.Kaulan Devi has not executed any valid Will in favour of the defendant, as she was not in sound disposing state of mind before her death and as such she was unable to execute the alleged Will dated 25.10.1993. The alleged Will, set up by the defendant, is forged, false and fictitious and the same has been prepared fraudulently after the death of Smt.Kaulan Devi in connivance with the scribe and witnesses. It has also been averred that the alleged Will is the result of undue influence and importunity and thus the same is illegal, null and void and is not binding on the plaintiff. The plaintiff has sought declaration of her ownership and possession over the suit land by restraining ::: Downloaded on - 15/04/2017 21:32:47 :::HCHP 4 the defendant from interfering with her ownership and possession over the suit land.
.
4. The defendant resisted and contested the suit by filing written statement. It has been admitted by the defendant that the suit land was owned and possessed by Smt.Kaulan Devi wife of Shri Paras Ram. It has also been admitted that the plaintiff is the daughter of Paras Ram. It of has been asserted by the defendant that after the death of Smt.Kaulan Devi, he succeeded the suit land on the basis of rt valid Will dated 25.10.1993 (Ex.DW-2/A) executed by her in her sound disposing state of mind. It has been averred that the defendant and his parents were looking after and maintaining Smt.Kaulan Devi for the last several years.
Smt.Kaulan Devi died on 31.10.1993. It has further been averred by the defendant that the plaintiff was step-daughter of Smt.Kaulan Devi, as she was born to Smt.Nikki Devi wife of Shri Paras Ram, who died within a few days of birth of the plaintiff. It has further been averred that the plaintiff was taken away by her maternal uncle and brought up by him.
The marriage of the plaintiff was also performed by her maternal uncle. It has been averred by the defendant that after the death of Smt.Kaulan Devi, he is owner in possession of the suit land and the plaintiff is not entitled to ::: Downloaded on - 15/04/2017 21:32:47 :::HCHP 5 any relief, much less to the discretionary relief of permanent injunction.
.
5. On the pleading of the parties, the learned trial Court framed the following issues:-
"1. Whether the plaintiff is entitled to the relief of declaration and permanent injunction, as prayed ? OPP.
1-A. Whether Smt.Kalan Devi has executed of a valid and registered Will dated 25.10.1993 in favour of the defendant, as alleged? OPD.
2. Relief."
6. rtThe learned trial Court decided both the issues in favour of the plaintiff and accordingly decreed the suit of the plaintiff with costs. The appeal preferred by the defendant before the learned Appellate Court was allowed with costs and the judgment and decree of the learned trial Court was reversed.
7. This second appeal was admitted on the following substantial question of law:
"(1) Whether there has been misreading of evidence by the learned first appellate Court who also not recorded the reasoning for reversal of the findings?::: Downloaded on - 15/04/2017 21:32:47 :::HCHP 6
8. Mr.Ankush Dass Sood, learned Senior Counsel, argued that judgment passed by learned first appellate Court .
deserves to be quashed and set aside since same is not based upon the correct appreciation of evidence as well as of law.
Mr.Sood further contended that bare perusal of material available on record clearly suggests that Will Ex.DW-2/A is shrouded by suspicion and could not be accepted being a of fake and forged document. Mr.Sood strenuously argued that defendant miserably failed to demonstrate on record that Will rt Ex.DW-2/A was genuine and was actually executed by deceased Paras Ram in sound and disposing state of mind and as such no reliance could be placed on the same.
Mr.Sood further argued that learned District Judge being first appellate Court wrongly determined issue No.1A in favour of defendant-respondent No.1, which is contrary to sufficient evidence on record. As per Mr.Sood, there was sufficient evidence on record that Will Ex.DW-2/A, dated 25.10.1993 executed by Smt.Kaulan Devi in favour of defendant was shrouded by suspicious circumstances and as such onus was upon the defendant being propounder of the Will to dispel such suspicious circumstances. But perusal of evidence led on record clearly suggests that defendant was not able to prove beyond reasonable doubt that Will Ex.DW-
2/A was free from suspicion. With a view to demonstrate his ::: Downloaded on - 15/04/2017 21:32:47 :::HCHP 7 aforesaid arguments, Mr.Sood invited the attention of this Court to the judgment passed by learned trial Court, wherein .
learned trial Judge, while discussing the evidence on record, came to the conclusion that Will Ex.DW-2/A in question was shrouded by suspicious circumstances and in this regard he culled out suspicious circumstances in para-22 of his judgment dated 17.6.2004.
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9. Mr.Sood, while specifically referring to para-22 of the judgment, made serious attempt to persuade this Court rt that judgment passed by learned trial Court, wherein Will Ex.DW-2/A was held to be shrouded by suspicious circumstances, is based upon correct appreciation of evidence led on record by the plaintiff as well as law and as such same deserves to be upheld. While concluding his arguments, Mr.Sood forcefully contended that findings of fact returned by learned trial Court could not be reversed by the learned first appellate Court without assigning there sufficient/plausible reasons, but as per him, perusal of judgment passed by learned first appellate Court, nowhere suggests that learned first appellate Court while differing with the judgment passed by the learned trial Court assigned sufficient reasons as required under Section 107 of the Code of Civil Procedure as well as judgment of Hon'ble Apex Court in Madhusudan Das vs. Smt.Narayani Bai and Others, ::: Downloaded on - 15/04/2017 21:32:47 :::HCHP 8 AIR 1983 SC 114 and as such judgment passed by the learned first appellate Court deserves to be quashed and set .
aside.
10. To the contrary, Shri G.D. Verma, learned Senior Counsel representing the respondent, supported the judgment passed by the first appellate Court. Mr.Verma, argued that judgment passed by learned first appellate Court of is based upon correct appreciation of evidence available on record and as such there is no scope of interference, whatsoever, rtof this Court in the present facts and circumstances of the case. Mr.Verma further contended that Will Ex.DW-2/A was duly executed by deceased Smt.Kaulan Devi in favour of defendant in sound and disposing state of mind and as such same could not be held to be shrouded by suspicious circumstances by the learned trial Court. During arguments having been made by Mr.Verma, he made this Court to travel through the statements made by the plaintiff witnesses as well as documents placed on record to demonstrate that at no point of time plaintiff was able to prove on record that Will Ex.DW-2/A is not genuine document executed by deceased Smt.Kaulan Devi.
Mr.Verma further argued that plaintiff miserably failed to lead evidence, be it ocular or documentary, on record suggestive of the fact that Will Ex.DW-2/A was falsely got ::: Downloaded on - 15/04/2017 21:32:48 :::HCHP 9 executed by the defendant using force and undue influence upon testatrix Smt.Kaulan Devi. While concluding his .
arguments, Mr.Verma, invited the attention of this Court to the judgment passed by the first appellate Court and contended that judgment passed by first appellate Court is based upon correct appreciation of evidence on record and learned first appellate Court, while differing with the of judgment passed by trial Court, has assigned sufficient reasons in support of its findings that Will Ex.DW-2/A is rt valid document, duly executed by Smt.Kaulan Devi in sound and disposing state of mind. He also stated that once suit was filed by the plaintiff alleging therein that Will Ex.DW-2/A set up by defendant is a result of fraud, onus was upon plaintiff to prove the validity of the Will Ex.DW-2/A that the same is not genuine document and is shrouded by suspicious circumstances, by way of leading cogent and convincing evidence, but perusal of material made available on record, nowhere suggests that Will Ex.DW-2/A is result of fraud as alleged by the plaintiff.
11. I have heard learned counsel for the parties and gone through the record of the case.
12. Needless to say that law regarding nature and onus of the proof of the Will is by way of propounder and in that regard the manner in which the evidence is required to ::: Downloaded on - 15/04/2017 21:32:48 :::HCHP 10 be appreciated has been duly prescribed in the judgment passed by the Hon'ble Apex Court in H.Venkatachala .
Iyengar vs. B.N. Thimmajamma and others, AIR 1959 SC
443.
13. Guidelines framed in H.Venkatachala Iyengar case (supra) were further reiterated by Constitutional Bench of Hon'ble Apex Court in Shashi Kumar Banerjee and of Others vs. Subodh Kumar Banerjee since deceased and after him his legal representatives and others, AIR 1964 rt SC 529. The Court held:
"4. The principles which govern the proving of a will are well settled; (see H. Venkatachala Iyengar v. B. N. Thimmajamma, 1959 (S1) SCR 426 : 1959 AIR(SC) 443) and Rani Purniama Devi v. Khagendra Narayan Dev, 1962 (3) SCR 195 : 1962 AIR(SC) 567). The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S. 63 of the Indian Succession Act.
The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no. such pleas but the circumstances give rise to ::: Downloaded on - 15/04/2017 21:32:48 :::HCHP 11 doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the .
testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indication in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed of before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be rt taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. It is in the light of these settled principles that we have to consider whether the appellants have succeeded in establishing that the will was duly executed and attested.
(Page-531)
14. Now, this Court would be adverting to the evidence led on record by the respective parties to explore the answer to substantial question of law, "whether there has been mis-reading of evidence by the learned first appellate Court and whether no reasons have been recorded by learned first appellate Court while reversing the findings returned by the learned trial Court that Will Ex.DW-2/A was shrouded by suspicious circumstances". Keeping in view the pleadings on ::: Downloaded on - 15/04/2017 21:32:48 :::HCHP 12 the point as well as submissions having been made on behalf of the respective parties by their counsel, it would be .
necessary and apt at this stage to refer to the plaint filed by the plaintiff; namely; Smt.Geeta Devi.
15. Perusal of plaint clearly suggests that plaintiff filed a suit for declaration to the effect that she is owner in possession of suit land, as described hereinabove, with of consequential relief of permanent prohibitory injunction restraining the defendant from interfering in the suit land in rt any manner, whatsoever, or getting mutation sanctioned on the basis of alleged Will Ex.DW-2/A, dated 25.10.993.
Plaintiff further in para-3 of plaint, which is reproduced here-in-below, stated that the defendant is stranger to the suit land and he has no right, title or interest over the suit land. It has been further stated in the said para that defendant has started illegal and unauthorized interference over the suit land by alleging that Smt.Kaulan Devi has executed a Will:
"3. That defendant is a stranger to suit land and defendant has got no right, title over the suit land. Defendant has started illegal and unauthorized interference over the suit land by alleging that Smt.Kalan Devi has executed a Will in his favour. Kalan Devi has not executed any Will in favour of Defendant as she was unable to execute the alleged will dated 25.10.93 as she was not of having disposing mind before her death. The alleged will is fictitious, forged one and has been prepared after her death in connivance ::: Downloaded on - 15/04/2017 21:32:48 :::HCHP 13 with the scribe and witnesses in fraudulent manner. The alleged will could be the result of undue influence and importunity also. The alleged will is .
illegal, null and void and is not binding on the plaintiff."
16. Perusal of aforesaid para contained in plaint clearly suggests that plaintiff prayed for relief of permanent prohibitory injunction against defendant on the ground that of Will Ex.DW-2/A is allegedly executed by deceased Smt.Kalan Devi in favour of defendant is fictitious, forged one allegedly rt prepared by defendant after her death in connivance with the scribe and witnesses in fraudulent manner. Plaintiff further claimed that alleged Will, which is a result of undue influence and importunity is not binding on the plaintiff.
17. The defendant in written statement claimed that Smt.Kaulan Devi executed a valid Will in the sound disposing mind on 25.10.93 in favour of defendant and Will was executed by Smt.Kaulan Devi of her own free will without any pressure of any side.
18. It is ample clear from the pleadings, as reproduced hereinabove, that plaintiff sought declaration as well as decree for permanent prohibitory injunction on the ground that Will Ex.DW-2/A set up by defendant is fictitious and forged document got prepared by the defendant after the death of Smt.Kaulan Devi in connivance with scribe and witnesses in fraudulent manner; meaning thereby onus had ::: Downloaded on - 15/04/2017 21:32:48 :::HCHP 14 shifted on plaintiff to prove that Will is not a genuine document, as has been held by the Hon'ble Apex Court in .
Daulat Ram and Others vs. Sodha and Others, (2005)1 SCC 40 :-
"10. Will being a document has to be proved by primary evidence except where the Court permits a document to be proved by leading of secondary evidence. Since it is required to be attested, as provided in Section 68 of the Indian Evidence Act, 1872, it cannot be used as evidence until one of the attesting witnesses at least has been called for the rt 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. In addition, it has to satisfy the requirements of Section 63 of the Indian Succession Act, 1925. In order to assess as to whether the Will has been validly executed and is a genuine document, the propounder has to show that the Will was signed by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But where there are suspicious circumstances, the onus is on the propounder to remove the suspicion by leading appropriate evidence. The burden to prove that the will was forged or that it was obtained under undue influence or coercion or by playing a fraud is on the person who alleges it to be so."
(Page 43) ::: Downloaded on - 15/04/2017 21:32:48 :::HCHP 15
19. But, interestingly, perusal of judgment dated 17.6.2004 passed by learned trial Court clearly suggests that .
it proceeded to decide the controversy at hand on the premise that onus, if any, to prove that Will Ex.DW-2/A is a valid document is upon the propounder of the Will i.e. defendant in the present case, completely ignoring the fact that at first instance plaintiff herself termed Will Ex.DW-2/A of as a fictitious/forged document procured by playing fraud.
At the cost of repetition, it is once again stated that once rt plaintiff had termed Will Ex.DW-2/A to be forged and fictitious document, onus was upon her to prove on record that Will Ex.DW-2/A is not a forged document, rather the same is a result of fraud, by leading cogent and convincing evidence on record. However, in the present case learned trial Court on the basis of pleadings of the parties framed two following issues:-
"1. Whether the plaintiff is entitled to the relief of declaration and permanent injunction, as prayed? OPP.
1A. Whether Smt.Kalan Devi has executed a valid and registered Will dated 25.10.1993 in favour of the defendant, as alleged? OPD."
but, while deciding the matter at hand, proceeded to decide issue No.1A at first instance and for this purpose analyzed the evidence led on record by the defendant. Whereas ::: Downloaded on - 15/04/2017 21:32:48 :::HCHP 16 learned trial Court in view of specific stand taken by the plaintiff vis-à-vis Will Ex.DW-2/A in the plaint ought to have .
taken evidence led on record by the plaintiff for critically analyses at first instance to reach just and fair conclusion that whether plaintiff was able to prove on record that Will Ex.DW-2/A is result of fraud as alleged in plaint. Had trial Court taken issue No.1 for discussion at first instance, he of would have examined the evidence led on record by the plaintiff at first instance, from where he would have made an rt attempt to gather, whether plaintiff was able to prove on record that Will Ex.DW-2/A is not a genuine document and the mutation sanctioned on the basis of such Will is of no consequence.
20. Leaving everything aside, this Court solely with a view to answer substantial question of law, examined the judgment passed by the learned first appellate Court, perusal whereof nowhere suggests that learned first appellate Court, while reversing the judgment of trial Court misread the evidence available on record and recorded no reason. Rather, perusal of judgment passed by the first appellate Court clearly suggests that it undertook an exercise to critically examine the evidence led on record while coming to the conclusion that Will Ex.DW-2/A is a valid document duly executed by Smt.Kaulan Devi in her sound disposing state of ::: Downloaded on - 15/04/2017 21:32:48 :::HCHP 17 mind in favour of defendant. This Court solely with a view to ascertain the genuineness and correctness of the arguments .
having been made on behalf of the plaintiff also examined the evidence led on record by the respective parties.
21. Perusal of para-22 of the judgment passed by the learned trial Court though suggests that trial Court had culled out certain circumstances, which persuaded learned of trial Court to conclude that Will Ex.DW-2/A is a forged document shrouded by suspicious circumstances, but, as rt has been discussed and observed hereinabove that in the given facts and circumstances of the case onus was upon the plaintiff to prove that Will Ex.DW-2/A is a forged document by leading cogent and convincing evidence. But interestingly, none of the plaintiff witness stated that Will Ex.DW-2/A is a result of fraud and was procured by defendant by playing fraud upon testatrix; namely;
Smt.Kaulan Devi. Moreover, plaintiff, who claimed herself to be a legal heir of deceased Kaulan Devi, never stepped into witness box, rather she gave her power of attorney to her husband, who appeared as PW-1. This Court was unable to find on record any explanation rendered by the plaintiff that what prevented her from entering the witness box to prove what she stated in the plaint. Perusal of statement made by PW-1, nowhere suggests that effort, if any, was ever made to ::: Downloaded on - 15/04/2017 21:32:48 :::HCHP 18 prove on record that Will Ex.DW-2/A is a fictitious and forged document procured by the defendant by playing fraud .
upon the testatrix Smt.Kaulan Devi. PW-1 stated that testatrix Kaulan Devi died in October, 1993 and she was not keeping well at the time of her death. He further stated that Kaulan Devi was not able to speak for the last 15-16 days and she did not execute any Will and nor she was able to of execute any Will. He also stated that she was looked after and maintained by him and his wife and her last rites were rt also performed by him. But in his cross-examination he admitted that Geeta Devi-plaintiff was brought up by her maternal uncle. Though he stated that Kaulan Devi remained ill for 15-20 days before death and he got her medically examined in Government Hospital, Bassi, but interestingly he did not place any document on record to prove that during her last days she was got medically examined by the plaintiff at Government Hospital, Bassi.
Similarly, PW-1 nowhere stated that Kaulan Devi was not in a sound and disposing state of mind and was unable to append thumb impression on the alleged Will Ex.DW-2/A. Rather, he stated that Kaulan Devi remained ill for 10-15 days prior to his death and she was not even able to talk.
PW-1 nowhere stated that Will in question is a result of fraud and same is a forged document procured by the defendant by ::: Downloaded on - 15/04/2017 21:32:48 :::HCHP 19 playing fraud in connivance with scribe and attesting witnesses as alleged in the plaint.
.
22. Withholding of the plaintiff herself from the witness box and thereby denying the defendant an opportunity for cross-examination is a valid and sufficient ground for Court to draw an adverse inference against the plaintiff.
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23. In this regard reliance is placed on the judgments passed by Hon'ble Apex Court in Khatri Hotels rt Private Limited and Another vs. Union of India and Another, (2011)9 SCC 126 , Man Kaur (Dead) by LRs. Vs. Hartar Singh Sangha, (2010)10 SCC 512, Rattan Dev vs. Pasam Devi, (2002)7 SCC 441, Iswar Bhai C Patel alias Bachu Bhai Patel vs. Harihar Behera and Another, (1999)3 SCC 457 and our own High Court in Kamlesh Rani vs. Balwant Singh, 2010(3) Shim.L.C. 141.
24. Similarly, PW-3 stated that Kaulan Devi was not keeping well prior to her death and even she was not able to speak. But he also nowhere stated that Will Ex.DW-2/A is a forged and fictitious document procured by the defendant by playing fraud. He also not stated that Kaulan Devi was totally incapacitated and was not in a position to put thumb impression. Similarly, these aforesaid two witnesses, nowhere stated that defendant had no cordial relation with ::: Downloaded on - 15/04/2017 21:32:48 :::HCHP 20 Kaulan Devi and there was no occasion/motive for Kaulan Devi to execute Will Ex.DW-2/A in favour of defendant.
.
Though these aforesaid plaintiff witnesses stated in their statements that Kaulan Devi was being looked after by plaintiff and her husband, but there is no explanation worth name that in what capacity plaintiff; namely; Geeta Devi was staying with Kaulan Devi because it has come in evidence of that plaintiff Geeta Devi was brought up by her maternal uncle and after her marriage she was residing with her rt husband at a place distant from house of deceased Kaulan Devi. Though plaintiff in plaint specifically alleged that Will was procured fraudulently by the defendant in connivance with the scribe; namely; Ramesh Chand and attesting witnesses but none of plaintiff witnesses stated anything with regard to these aforesaid persons, who allegedly connived with the defendant while procuring/preparing forged Will. Though plaintiff by way of leading documentary evidence made an attempt to prove on record that Kaulan Devi never used to append thumb impression on the documents, rather, she being Pradhan of Gram Panchayat used to sign the document. In this regard plaintiff produced evidence in the shape of various documents allegedly signed by Smt.Kaulan Devi. PW-1 as well as his witnesses stated before the Court below that Smt.Kaulan Devi used to sign ::: Downloaded on - 15/04/2017 21:32:48 :::HCHP 21 the ration card and proceedings of the Gram Panchayat.
This Court also perused the Ration Card as well as Register .
of proceedings of Gram Panchayat of 1962-63, which suggest that Kaulan Devi had been signing documents. But signature of Smt.Kaulan Devi as available in the aforesaid proceedings of Gram Panchayat itself appears to be clumsy.
Ex.PW-2/A, placed on record by the plaintiff, pertains to year of 1962-63, whereas undisputedly alleged Will is dated 25.10.1993; meaning thereby that thumb impression, if any, rt was appended upon Will after 30 years of alleged signatures of the Gram Panchayat Proceedings. There cannot be any dispute that a person, who used to sign 30 years back cannot append thumb impression in later part of his/her life, especially when she was in frail health as claimed by the plaintiff. Moreover, none of the plaintiff witnesses stated that they saw signing Kaulan Devi in their presence. Whereas, defendant also produced Ration Card of Smt.Kaulan Devi on record, perusal whereof suggests that Smt.Kaulan Devi used to put thumb impression on the document.
25. Apart from above, during pendency of appeal, the defendant had moved an application under Order 41 Rule 27 of the Code of Civil Procedure for leading additional evidence, wherein document with regard to holding of time deposit account by the deceased Kaulan Devi in the Post ::: Downloaded on - 15/04/2017 21:32:48 :::HCHP 22 Office was sought to be brought on the record. By way of application, defendant also stated that Kaulan Devi was .
holding Post Office saving account, whereas plaintiff, while filing reply to the aforesaid application, nowhere disputed the averments and feigned ignorance of having saving account by late Smt.Kaulan Devi with the local Post Office and Cooperative Society. Similarly, the defendant also averred in of the application that deceased Kaulan Devi was holding Account No.36 in Cooperative Society and had been rt operating that account and she was also holding ration card.
Defendant specifically stated that in all the aforesaid documents and transactions, Smt.Kaulan Devi had been putting thumb impression. To substantiate averments contained in the application, pass book of account, ration card and certificate issued by Secretary, Cooperative Society were also appended with the application, perusal whereof clearly suggests that deceased Kaulan Devi had been appending thumb impression upon the documents.
Whereas, plaintiff while filing reply to the aforesaid application, nowhere disputed the averments and feigned ignorance of having saving bank account by late Smt.Kaulan Devi with the local Post Office and Cooperative Society.
Similarly, perusal of reply to the application, nowhere suggests that at any point of time plaintiff stated that ::: Downloaded on - 15/04/2017 21:32:48 :::HCHP 23 Smt.Kaulan Devi had not put thumb impression on the documents in the local Post Office and Cooperative Society.
.
In view of the fact that thumb impression of the deceased was available on local post Office and Cooperative Society, it could not be concluded by the learned trial Court merely on the basis of statement made by PW-1 that Kaulan Devi never used to put thumb impression, rather she used to sign.
of Moreover, at no point of time plaintiff applied for comparison of thumb impression of Smt.Kaulan Devi on Will Ex.DW-2/A rt with that of the account of local Post Office and Cooperative Society, as a result of which Court below had no option but to accept the contention put forth on behalf of the defendant that testatrix Kaulan Devi had been putting thumb impression on the document.
26. PW-1 Brij Lal as well as other witnesses though stated that testatrix Kaulan Devi was not well for 10-15 days prior to her death and she was not able to understand the documents like the Will Ex.DW-2/A, but, as has been discussed hereinabove, none of these plaintiff witnesses stated that at the time of execution of alleged Will Ex.DW-
2/A testatrix Kalan Devi was not in sound disposing state of mind. Statements to the effect that Kaulan Devi was not keeping well for 10-15 days prior to her death cannot be termed to be sufficient to conclude that she was totally ::: Downloaded on - 15/04/2017 21:32:48 :::HCHP 24 incapacitated even to put thumb impression on the documents.
.
27. After perusing the entire evidence led on record by the plaintiff, this Court is unable to conclude that plaintiff was able to prove on record that Will Ex.DW-2/A is a forged and fictitious documents procured by the defendant by playing fraud. Since plaintiff had termed the Will to be of forged and fictitious documents, onus was upon her to prove on record that Will is forged and fictitious document rt procured fraudulently by the defendant by leading cogent and convincing evidence, but none of plaintiff witnesses, as has been discussed in detail, has either stated or has explained circumstances from which it could be inferred/gathered that Will Ex.DW-2/A is a result of fraud.
Whereas, defendant stated that his parents and he himself had been looking after and maintaining Smt.Kaulan Devi.
He also stated that testatrix; namely; Kaulan Devi, had been visiting in defendant's house. Aforesaid assertion stands duly corroborated with the admission having been made by PW-3 Bhuru Ram. In his cross-examination, he categorically admitted that defendant and his parents had been visiting Smt.Kaulan Devi. He admitted the plaintiff to be the daughter of Kaulan Devi, who was the second wife of Paras Ram. He specifically stated that he and his father served ::: Downloaded on - 15/04/2017 21:32:48 :::HCHP 25 Kaulan Devi and Geeta Devi never visited her parental house nor they saw her. It has also come in his statement that .
plaintiff Geeta Devi was brought up by and was married by her maternal uncle. He further stated that Kaulan Devi executed a Will in his favour and money was bequeathed in favour of his mother.
28. DW-2 Vidya Sagar stated that Will was executed of by Kaulan Devi in favour of defendant Shakti in his presence.
He specifically stated that Will was read over and explained rt to Kaulan Devi who after admitting the contents to be correct, put her thumb mark on the Will in his presence and the other witnesses signed the Will as witnesses in his presence. He categorically stated in his statement that she was in sound disposing mind at the time of execution of the Will. It has also come in his statement that Kaulan Devi was being looked after and served by Sandhya Devi and Partap i.e. parents of the defendant. He also stated that he never saw plaintiff Geeta Devi visiting the house of deceased Kaulan Devi. However, in his cross-examination he stated that Will was executed at the residence of Sandhya Devi at Gayaldi, where he was called by nephew of the defendant.
He stated that when he reached there, Bhagat Ram and Roop Lal were already sitting there on the cot in the Varandah and Ramesh Chand came after 15 minutes. It is also deposed by ::: Downloaded on - 15/04/2017 21:32:48 :::HCHP 26 him that testatrix Kaulan Devi dictated that she bequeathed her movable and immovable property in favour of Shakti .
Chand and nothing more was dictated by her.
29. Bhagat Ram DW-3 also stated that Kaulan Devi executed a Will Ex.DW-2/A in favour of defendant in his presence. He also stated that he signed the Will as witness.
It has also come in his statement that Will was written by of Ramesh Chand at the instance of Kaulan Devi, which was read over and explained to her and thereafter she put her rt thumb impression on the same. He also stated that other witnesses also signed the Will in her presence. He specifically stated that Kaulan Devi was in sound disposing mind at that time and she was being looked after and served by defendant and her mother. Like DW-2, he also stated that he never saw plaintiff Geeta Devi visiting Kaulan Devi at any point of time. It has also come in his statement that Will was produced before Tehsildar, where he again signed the Will. Cross-examination conducted upon these aforesaid defendant witnesses, who allegedly signed as marginal witnesses on the Will Ex.DW-2/A, nowhere suggests that any suggestion worth name was ever put to these attesting witnesses that Kaulan Devi never executed Will in favour of defendant. No suggestion to the effect that the defendant got the Will prepared fraudulently in connivance with scribe and ::: Downloaded on - 15/04/2017 21:32:48 :::HCHP 27 witnesses. Similarly, no suggestion was put that Will Ex.DW-2/A is a result of fraud and same is forged and .
fictitious document and they never appended their signatures upon the same. Since scribe Ramesh Chand had passed away, there was no occasion for defendant to cite him as a plaintiff witness in support of his claim, but attesting witnesses, as have been discussed hereinabove, clearly of proved on record that Will was executed by late Smt.Kaulan Devi in their presence in sound and disposing state of mind.
rt Both the attesting witnesses categorically stated that they and scribe signed the Will in the presence of testatrix. But learned trial Court while coming to the conclusion that Will is shrouded by suspicious circumstances also observed that thumb impression of testatrix had appeared at the end, whereas attesting witnesses and scribe signed the Will above the thumb impression of the testatrix. But, as has been rightly observed by learned District Judge, Will Ex.DW-2/A was not prepared and scribed by trained/license deed writer and as such aforesaid discrepancy pointed out by learned trial Court could not be termed as suspicious circumstance in any manner, especially in the teeth of specific and unequivocal statements of both the attesting witnesses that Kaulan Devi got the Will scribed from late Shri Ramesh Chand in their presence and she had appended signatures in ::: Downloaded on - 15/04/2017 21:32:48 :::HCHP 28 their presence with sound disposing state of mind. It is not understood as to how learned trial Court came to the .
conclusion that thumb impression of the deceased was available on the blank paper and space of thumb impression was used for preparation of the Will and attestation thereof, because it was none of the case of the plaintiff. Moreover, no evidence, if any, in this regard was ever led on record by the of plaintiff witnesses. Perusal of cross-examination conducted upon PW-2 and PW-3 suggests that no suggestion worth the rt name was ever put to PW-2 and PW-3 with regard to thumb impression of the testatrix appearing at the bottom. Had defendant put this suggestion to PW-2 and PW-3, they would have definitely explained the circumstances under which the thumb impression of the testatrix was obtained at the bottom. Similarly, no attempt was made by the plaintiff to prove on record that Kaulan Devi had put thumb mark on the blank paper for some other purpose, but the same was fraudulently used by the defendant for preparing alleged Will Ex.DW-2/A. It may be noticed that Will Ex.DW-2/A was prepared on the judicial paper of 1987 and in this regard plaintiff, nowhere made an attempt to prove on record that judicial paper used for preparing Will was not procured by Kaulan Devi, especially for execution of Will.
::: Downloaded on - 15/04/2017 21:32:48 :::HCHP 2930. This Court, after perusing evidence led on record by the defendant, has no hesitation to conclude that .
defendant was able to prove on record that Will Ex.DW-2/A was duly executed by late Smt.Kaulan Devi in his favour in sound disposing state of mind. At this juncture, it would be relevant to refer to the provisions of Section 63 of the Indian Succession Act, 1925:
of "63. Execution of unprivileged Wills. --Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 12 [or an airman so employed or rt engaged,] or a mariner at sea, shall execute his Will according to the following rules:--
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."::: Downloaded on - 15/04/2017 21:32:48 :::HCHP 30
31. Perusal of aforesaid provision clearly suggests that for valid attestation of Will, it must be proved that Will .
was attested by at least two witnesses and each of these witnesses must either see the testator signing or affixing his mark on the Will or it shall be signed by some other person, in their presence, on the direction of testatrix. Similarly, these witnesses must receive from the testator a personal of acknowledgement of his signature or mark or the signature of such other person. Apart from above, these witnesses rt must sign Will in the presence of the testator.
32. In the present case, defendant by leading cogent and convincing evidence, as has been discussed in detail, was successful in proving that Will was executed by late Smt.Kaulan Devi in her sound disposing state of mind after understanding the contents contained in the document and put her signatures on the document on her own free will.
33. This Court, after carefully perusing the evidence led on record by defendant, has no hesitation to conclude that defendant was able to prove that Will Ex.DW-2/A was validly executed by Smt.Kaulan Devi, whereas evidence led on record by the plaintiff, which has been discussed in the earlier part of the judgment, nowhere suggests that plaintiff was able to discharge onus shifted upon her after terming Will Ex.DW-2/A as a forged and fictitious document, that ::: Downloaded on - 15/04/2017 21:32:48 :::HCHP 31 Ex.DW-2/A is a forged document procured fraudulently by the defendant and as such this Court sees no illegality and .
infirmity in the judgment passed by the learned first appellate Court who definitely while reversing the judgment passed by trial Court examined entire evidence available on record in right perspective and by no stretch of imagination it can be said that there has been a misreading of evidence by of Court below. This Court is of the firm view, after perusing the judgment passed by Hon'ble Apex Court in Daulat rt Ram's case supra that onus was upon plaintiff to prove, especially when in her plaint she had termed the Will to be forged and fictitious document and there was no requirement for this Court to examine the evidence, if any, led on record by the defendant to examine the genuineness and correctness of the judgment passed by the learned trial Court. Perusal of par-22 of the judgment passed by trial Court clearly suggests that trial Court while culling out suspicious circumstance, nowhere taken into consideration evidence led on record by the plaintiff upon whom onus was heavy to prove that Will is forged and fictitious document, rather close reading of para-22 suggests that learned trial Court selectively used the evidence led on record by the defendant while pointing out suspicious circumstances.
Careful perusal of aforesaid para-22 of the judgment passed ::: Downloaded on - 15/04/2017 21:32:48 :::HCHP 32 by learned trial Court compels this Court to conclude that the evidence led on record by the defendant was not .
appreciated in its right perspective by the trial Court, rather same was selectively referred by learned trial Court while decreeing the suit of the plaintiff. Otherwise also plaintiff was supposed to stand on her own legs while proving the contents of the plaint and by no means she could be allowed of to take benefit of weakness/discrepancies, if any, in the case of the defendant.
34. rt While concluding and upholding the judgment passed by the learned first appellate Court, this Court is of the view that learned trial Court wrongly proceeded to decide the case at hand on the premise that onus, if any, to prove that Will is not shrouded by suspicious circumstance was upon the defendant because by now it is well settled that onus to prove that will is forged and fictitious document is upon the person, who alleges the same. Since in this case plaintiff had termed Will as a forged and fictitious document, she was under obligation to prove on record by leading cogent and convincing evidence that Will Ex.DW-2/A is a result of fraud, but in the present case as clearly emerge from the record especially the judgment passed by learned trial Court, that trial Court decided the matter on the ::: Downloaded on - 15/04/2017 21:32:48 :::HCHP 33 premise that onus, if any, to prove that Will was free from suspicion is/was upon defendant.
.
35. Consequently, in view of the facts and circumstances discussed hereinabove, this Court is of the view that there is no illegality and infirmity in the judgment passed by learned first appellate Court and as such it does not warrant any interference by this Court, moreover, as has of been discussed in detail hereinabove, appellant-plaintiff was not able to make out her case to persuade this Court that rt Will Ex.DW-2/A is fake and fictitious document procured by the defendant by undue influence. Similarly, this Court, after perusing the evidence led on record by the plaintiff, was unable to see any circumstance which could compel this Court to return the findings that Will Ex.DW-2/A is shrouded by suspicious circumstances. Hence present appeal fails and is dismissed, accordingly.
36. All the interim orders are vacated. All the miscellaneous applications are disposed of.
November 11, 2016 (Sandeep Sharma)
(aks) Judge
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