Himachal Pradesh High Court
Unknown vs Hari Singh on 12 October, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA Nos. 127 and 128 of 2023 .
Reserved on: 5.10.2023 Date of Decision : 12.10.2023
1. RSA No. 127 of 2023 of Vinod Kumar ...Appellant.
Versus
Hari Singh
rt ...Respondent.
2. RSA No. 128 of 2023
Vinod Kumar ...Appellant.
Versus
Hari Singh ...Respondent.
Coram
Hon'ble Mr. Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No. For the Appellant(s) : Mr. G.R. Palsra, Advocate, in both the appeals.
For the Respondent(s) : Mr. Naveen Awasthi, Advocate, in both the appeals.
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 12/10/2023 20:38:19 :::CIS 2Rakesh Kainthla, Judge One Jati Ram executed three Wills-the first dated .
11.2.2018 (Mark-A) in favour of the plaintiff, the second dated 24.2.2009 (Ex.DW-3/A) in favour of the defendant and the third dated 24.11.2009 (Ex.PW-8/A) in favour of the plaintiff. He also executed a Cancellation Deed (Mark-C) cancelling the Will of executed in favour of the defendant. The revenue authorities attested a mutation no. 507, dated 28.1.2011 in favour of the rt defendant based on the Will dated 24.2.2009.
2. The plaintiff felt aggrieved from the attestation of the mutation and he filed a civil suit seeking a declaration that the Will dated 24.2.2009 and mutation No. 507, dated 28.1.2011 in favour of the defendant were null and void whereas the Will executed in his favour dated 24.11.2009 is valid.
3. The defendant opposed the suit by filing a written statement denying the contents of the plaint. He also filed a counterclaim seeking a declaration that the Will executed in favour of the plaintiff dated 24.11.2009 was null and void whereas the Will executed in his favour was valid. He also claimed that Jati Ram had not executed any cancellation deed.
::: Downloaded on - 12/10/2023 20:38:19 :::CIS 34. The plaintiff filed a written statement denying the contents of the counterclaim.
.
5. The learned Trial Court framed the following issues on 17.1.2012:-
1. Whether the mutation No. 507, dated 28.01.2011 and Will dated 24.02.2009 are null and void, as alleged? OPP.
of
2. Whether the Will executed by late Sh. Jati Ram in favour of the plaintiff is last Will, as alleged? OPP.
3. Whether the plaintiff is entitled to the relief of permanent rt prohibitory injunction, as alleged ? OPP.
4. Whether the suit of the plaintiff is not maintainable in the present form? OPD.
5. Whether the plaintiff is estopped by his own act and conduct to file the present suit? OPD.
6. Whether the Will dated 24.11.2009 executed in favour of the plaintiff is not genuine and is the result of fraud, coercion and undue influence, as alleged? OPD.
7. Whether late Sh. Jati Ram was not in a physical and mental condition to execute the Will, as alleged? OPD.
8. Whether the Will dated 24.02.2009 was never revoked by deceased Jati Ram, as alleged? OPD.
9. Whether the counter-claim is not maintainable, as alleged? OPP.
10. Whether the counter claimant is estopped by his own act and conduct to file the counter-claim, as alleged? OPP.
11. Whether the counter-claim is bad for non-joinder and mis-joinder of necessary parties? OPP.
12. Whether the counter-claimant has no cause of action against the plaintiff? OPP.
13. Whether the suit of the plaintiff is time-barred? OPD.::: Downloaded on - 12/10/2023 20:38:19 :::CIS 4
14. Relief.
6. The parties led the evidence.
.
7. The Learned Trial Court held that the Will executed in favour of the plaintiff dated 24.11.2019 was the last and genuine Will executed by deceased Jati Ram. The execution of the Will was duly proved. There was nothing suspicious surrounding the of execution of the will whereas the Will executed in favour of the defendant was shrouded in suspicious circumstances. The Will rt propounded by the defendant contained a false recital regarding the wife of Jati Ram being alive. The plea of the defendant that Jati Ram executed a Will in his favour as he was satisfied with the services rendered by the defendant was not believable because as per the admission of the defendant, Jati Ram and the defendant were residing separately. Hence, the learned Trial Court answered issues No. 1 to 3, 9 and 12 in affirmative, rest of the issues in negative, decreed the suit and dismissed the counterclaim.
8. The defendant filed two separate appeals-one against the decree of the suit and another against the dismissal of the counterclaim. These appeals were decided by the learned Additional District Judge, Sarkaghat, Camp at Jogindernagar.
::: Downloaded on - 12/10/2023 20:38:19 :::CIS 5Learned First Appellate Court concurred with the findings recorded by the learned Trial Court and held that the execution .
of the Will dated 24.11.2009 propounded by the plaintiff was proved by satisfactory evidence. There was nothing suspicious in the circumstances surrounding the execution of the Will. The plea of the defendant that he was taking care of the deceased of was not established. The circumstance that the deceased had thumb-marked the Will executed in favour of the plaintiff rt whereas he had signed the earlier Will was properly explained by the plaintiff by establishing that Jati Ram had suffered a paralytic attack, due to which he was unable to put the signatures on the Will. The Will propounded by the defendant was shrouded in suspicious circumstances. It was also cancelled by the deceased because the defendant was not taking care of the deceased and was giving beatings to him. There was nothing to doubt the mental capacity of the testator; hence, the appeals filed by the defendant were dismissed.
9. Being aggrieved from the judgments and decrees passed by the learned Courts below, the defendant filed the present appeals asserting that the learned Courts below passed the judgments and decrees based on surmises and conjectures.
::: Downloaded on - 12/10/2023 20:38:19 :::CIS 6The learned Trial Court answered issue no. 8 in negative but there was no evidence that the Will in favour of the defendant .
was ever cancelled by the testator. Jati Ram had executed the Wills within one year. He used to sign in English, but the Will propounded by the plaintiff was thumb-marked. This was the gravest suspicious circumstance and both the learned Courts of below erred in ignoring it. The plaintiff also admitted that Jati Ram used to sign in English. He even admitted the signatures of rt Jati Ram in Mark-A, Mark-B and Mark-C. Krishan Chand, a marginal witness to the Will was a stock witness and he used to charge ₹50/- to ₹100/- for putting the signatures on the Will as a marginal witness. It was duly proved that Jati Ram was unable to move. There was no mention of the Will dated 24.2.2009 in the Will dated 24.11.2009. The defendant examined the witnesses to prove the execution of the Will. It was duly proved that the defendant used to serve the deceased. The Will propounded by the defendant was duly proved whereas the Will propounded by the plaintiff was shrouded in suspicious circumstances. Learned Courts below misread, misinterpreted and misconstrued the evidence which materially prejudiced the case of the defendant. The onus was wrongly cast by the learned ::: Downloaded on - 12/10/2023 20:38:19 :::CIS 7 Trial Court. The testator had suffered a paralytic attack and he was unable to move. He was ill on 24.11.2009 and he died on .
2.12.2009. Thumb impression was taken fraudulently and the plaintiff had taken a prominent part in the execution of the Will.
The wife of Jati Ram was alive and was wrongly mentioned dead in the Will propounded by the plaintiff. The plaintiff had not of produced the Will executed in his favour for more than one year which is another suspicious circumstance. Therefore, it was rt prayed that the present appeal be allowed and the judgments and decrees passed by learned Courts below be set-aside.
10. The following substantial questions of law were proposed in the memorandum of appeal:-
1. Whether both the learned Courts below have misread, misinterpreted and misconstrued the oral as well as documentary evidence of both the parties especially statement of all the PWs and DWs and the Will Ext. DW-
3/A and Will Ext. PW-8/A which has martially prejudiced the entire case of the appellant.?
2. Whether the findings of both the learned Courts below are quite perverse as the real lis has not been decided in this case, because the Will dated 24.2.2009 has been proved to be the last Will of late Sh. Jati Ram?
3. Whether the respondent was miserably failed to remove the suspicious circumstances of the alleged Will dated 24.11.2009 by examining trustworthy evidence?
::: Downloaded on - 12/10/2023 20:38:19 :::CIS 84. Whether the Will dated 24.11.2009 is full of suspicious circumstances, as thumb impression has been shown in this Will of Sh. Jati Ram, whereby he always sign in .
English?
5. Whether the Will dated 24.11.2009 is not the last Will of testator Jati Ram, as in this Will wife of testator Jati Ram has been shown as dead which is not correct?
6. Whether the counter claim of the appellant has not been properly considered by both the learned Courts below which has materially prejudiced the entire case of the of appellant?
11. I have heard Mr. G.R. Palsra, learned counsel for the rt appellant/defendant and Mr. Naveen Awasthi, learned counsel for the respondent/plaintiff.
12. Mr. G.R. Palsra, learned counsel for the appellant/defendant submitted that the learned Courts below erred in relying upon the Will propounded by the plaintiff. The plaintiff had admitted in his evidence that Jati Ram used to sign the documents. He has also identified the signatures of Jati Ram on various documents. No proper explanation was provided for putting a thumb impression on the Will propounded by the plaintiff. Jati Ram died within a short time after the execution of the Will and it is sufficient to cast doubt on the execution of the Will. It was mentioned in the Will propounded by the plaintiff that the wife of Jati Ram was dead whereas she was alive and ::: Downloaded on - 12/10/2023 20:38:19 :::CIS 9 false recital is sufficient to make the execution of the Will suspect. Learned Courts below had not properly appreciated the .
evidence. Therefore, he prayed that the present appeal be admitted on the proposed substantial questions of law.
13. Mr. Naveen Awasthi, learned Counsel for the respondent-plaintiff supported the judgments and decrees of passed by learned Courts below and submitted that no rt interference is required with the same. He submitted that the Will propounded by the plaintiff was properly proved. It was duly revoked by Jati Ram by executing a revocation deed. The Will propounded by the defendant was not properly proved and it was shrouded in suspicious circumstances. Learned Courts below have concurrently found that the execution of the Will was properly proved. This is a pure findings of fact, which cannot be interfered with in the second appeal. No substantial question of law has been disclosed in the memorandum of appeal. Therefore, he prayed that the appeals be dismissed.
14. I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.
::: Downloaded on - 12/10/2023 20:38:19 :::CIS 1015. The Will (Ex. PW-8/A) propounded by the plaintiff was stated to be the last Will executed by Jati Ram. He had also .
mentioned that the earlier Wills executed by him would be considered null and void; therefore, this Will has the effect of superseding the earlier Wills and in case the due execution and attestation of this Will is proved, the earlier Wills propounded by of the defendant and plaintiff become meaningless.
16. rt This Will was signed by Krishan Chand (PW-2) and Rajinder Singh (PW-5). Krishan Chand (PW-2) stated that he was a bar clerk. Jati Ram had executed a Will in favour of Hari Singh which was signed by him and Rajinder Singh. This Will was written by a document writer who read over and explained the same. Jati Ram put his thumb impression. The Will was produced before the Tehsildar, who read over and explained the same to the executant. He stated in his cross-examination that he remained a bar clerk for two years. He had put signatures on 20-30 Wills. He used to charge ₹50-100 for attesting the Will.
He used to charge the money when the parties were not known to him but did not charge the money when the parties were known to him. His house is in Village Majhawar and the house of Jati Ram is in Village Bharola. The Will was written by Roop Lal.
::: Downloaded on - 12/10/2023 20:38:19 :::CIS 11The thumb impressions were put before the Tehsildar. He did not remember the date of writing the Will. Jati Ram had put the .
signatures on Mark-C because he knew how to put the signatures. Jati Ram was aged 85 years. He was aged and ill. It was difficult for him to walk and he was brought in a vehicle.
The money for the vehicle was paid by the plaintiff. Plaintiff paid of him ₹50/-. He also paid the money to the scribe.
17. rt Rajinder Singh (PW-5) stated that Jati Ram came to his shop and told him that he (Jati Ram) wanted to execute a Will in favour of his nephew. They went to Joginder Nagar to the document writer. Document writer wrote the Will at the instance of Jati Ram. The Will was also produced before the Sub Registrar.
Jati Ram put his thumb impression. He also put his signatures on the Will. One more person was called but he did not remember his name. He stated in his cross-examination that only he and Jati Ram had travelled in the vehicle. He did not know the name of the document writer. He denied that the Will was forged and Jati Ram never appeared in Tehsil. He denied that the Will was presented before the Sub Registrar after four days. He denied that the mental capacity of Jati Ram was not proper. He admitted that Jati Ram had put his thumb impression ::: Downloaded on - 12/10/2023 20:38:19 :::CIS 12 on the Will. He was again examined as PW-7 and made a similar statement.
.
18. Sunil Kumar (PW-8) stated that he was practising at Jogindernagar. Jati Ram came to him and expressed his intention to execute a Will. Jati Ram was his client. He took Jati Ram to document writer Roop Lal where Jati Ram expressed his of intention to execute a Will in favour of the plaintiff. Roop Lal rt wrote the Will, which was read over and explained to Jati Ram.
Jati Ram put his thumb impression. Krishan Chand and Rajinder Singh put their signatures. He put his signature as an identifier.
The Will was presented before Sub Registrar who read over and explained it to him. Jati Ram acknowledged the correctness of the Will. Roop Lal had died. He stated in cross-examination that Jati Ram had a litigation with the Government. He admitted that he had appeared on behalf of the plaintiff. He did not remember whether Jati Ram had put his signature on the document related to the case or had put his thumb impression. He denied that a false Will was prepared and it was not read over and explained to Jati Ram. He denied that the thumb impression of Jati Ram was obtained fraudulently.
::: Downloaded on - 12/10/2023 20:38:19 :::CIS 1319. It is apparent from the statement of these witnesses that they have supported the due execution of the Will. There are .
some contradictions regarding the person who had brought Jati Ram to Joginder Nagar and whether Jati Ram was accompanied by the plaintiff or not. However, the contradictions were bound to come as the incident had taken place in the year 2009 and of witnesses were deposing after a considerable lapse of time.
Krishan Chand deposed in the year 2014 Rajinder Singh deposed rt in the year 2017 and Sunil Kumar deposed in the year 2018.
Human memory fails with time. Therefore, contradictions cannot be used to discard the testimony of a witness. It was laid down by the Hon'ble Supreme Court in Meenakshiammal v.
Chandrasekaran, (2005) 1 SCC 280 = 2004 SCC OnLine SC 1397 that the suspicion must be one inherent in the transaction itself. It is not a suspicion that arises on conflict of testimonies. It was observed:
"20. In the case of Ryali Kameswara Rao v. Bendapudi Suryaprakasarao AIR 1962 AP 178 the Court while discussing the provisions of Section 63 of the Succession Act, 1925, has held that the suspicion alleged must be one inherent in the transaction itself and not the doubt that may arise from a conflict of testimony which becomes apparent on an investigation of the transaction. That suspicious circumstances ::: Downloaded on - 12/10/2023 20:38:19 :::CIS 14 cannot be defined precisely. They cannot be enumerated exhaustively. They must depend upon the facts of each case. When a question arises as to whether .
a will is genuine or forged, normally the fact that nothing can be said against the reasonable nature of its provisions will be a strong and material element in favour of the probabilities of the will. Whether a will has been executed by the testator in a sound and disposing state of mind is purely a question of fact, which will have to be decided in each case on the of circumstances disclosed and the nature and quality of the evidence adduced. When the will is alleged to have been executed under undue influence, the onus of proving undue influence is upon the person making rt such allegation and the mere presence of motive and opportunity are not enough."
20. Similarly it was held by this Court in Shakuntala Devi v. Savitri Devi, 1996 SCC OnLine HP 12= AIR 1997 HP 43 that contradictions in the statements of witnesses do not amount to suspicious circumstances. It was held:
"23. The District Judge has relied heavily on the contradictions appearing in the depositions of DW.1 Satya Devi, DW. 2 Keshav Ram, DW 3 Sher Singh and DW.4 Amar Singh with regard to the execution of the Will. Such contradictions, which are of a minor nature, will not be a suspicious circumstance. The memory fades away with the passage of time and when evidence is being given after a lapse of six years, the witnesses cannot be expected to make a parrot-like statement on each and every minor aspect of the cast Therefore, the District Judge has erred in relying upon such minor contradictions coming in the statements of various witnesses."::: Downloaded on - 12/10/2023 20:38:19 :::CIS 15
21. Therefore, the contradictions cannot be used to discard the Will.
.
22. It was submitted that Jati Ram had put his thumb impression on the Will whereas he used to sign the documents.
Putting the thumb impression would make the execution of the Will suspicious. This is not acceptable. It has been stated in of para-5 of the memorandum of appeal filed before this Court that rt Jati Ram had suffered a paralytic attack. This was the explanation accepted by the learned Trial Court in para-45 of the judgment. Therefore, the execution of the Will cannot be doubted because it was thumb-marked by Jati Ram.
23. It was submitted that Jati Ram died within a short time after the execution of the Will and there is no satisfactory evidence regarding his mental capacity. He was aged and hence specific evidence should have been brought to prove that he was of sound disposing state of mind. This is not acceptable. It was laid down in Ashok Baury v. State, 2021 SCC OnLine Del 1248= 2021 (279) DLT 561 that there is a presumption in favour of sanity and the burden lies on the person who challenges it to prove that the person was insane. It was observed:
::: Downloaded on - 12/10/2023 20:38:19 :::CIS 16"8. Soundness of mind, for the purposes of contracting, is defined in Section 12 of the Indian Contract Act, 1872 and which in my view would have application in the matter of .
soundness of mind requisite for making of a Will as well.
As per the said provision, (i) a person is said to be of sound mind, if, at the time of the making of the contract, he is capable of understanding it and of forming a rational judgment as to its effect upon his interests; (ii) a person who is usually of unsound mind, but occasionally of sound mind, may make a contract when he is of sound of mind; and, (iii) a person who is usually of sound mind, but occasionally of unsound mind, may not make a contract when he is of unsound mind.
9. As would be obvious from the above, a common thread rt is found to run between Section 12 of the Contract Act and Section 59 of the Indian Succession Act.
10. Chapter VII titled "Of the Burden of Proof", of Part III titled "Production and Effect of Evidence", of the Evidence Act deals with the issue with which this Court is concerned herewith. Per Section 101 thereunder, whosoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts, which he asserts, must prove that those facts exist. Since the propounder of a Will as per Section 59 of the Indian Succession Act is required to prove that the testator at the time of the making of the Will was of sound mind, the burden of proof would be on the propounder. However, that would be so where none is opposing the Will propounded and the Will has to be proved for the satisfaction of the Court. However when a document propounded as a Will is contested, what would be required to be proved is only what is in issue and only if the party disputing the document propounded as a Will disputes/controverts that the testator/testatrix, at the time of making the Will was of sound mind, would soundness of mind be in issue and required to be proved. However if the soundness of mind is not specifically denied then as per the Rules aforesaid contained in Order ::: Downloaded on - 12/10/2023 20:38:19 :::CIS 17 VIII Rule 5 of the CPC, soundness of mind shall be deemed to have been admitted. In the event of denial of the soundness of mind, the question as herein arises, on .
whom the onus should be, whether on the propounder or the opposite party, arises.
11. Section 114 under the aforesaid Chapter VII of Part III of the Evidence Act enables the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private of business, in their relation to the facts of the case.
12. The common course of natural events and human conduct is soundness of mind and unsoundness of mind rt an aberration. If a testator/testatrix has led a normal life, and performed day-to-day functions in the normal course of human conduct, the presumption under Section 114 would be of soundness rather than unsoundness of mind."
24. It was laid down by this Court in Shanti Devi vs. Dali Devi & Anr 2002(2) SLJ 1095 that the old age of the executant does not show that she was not in a sound disposing state of mind. It was observed:-
"16. The second contention of Mr Bhardwaj. learned counsel for the appellant, that Munshi Ram was 90 years of age and therefore, was not in disposing mind at the time of execution of the Will is concerned, it has no substance. There is nothing on record to show that the testator was not in sound disposing mind at the time of execution of the Will. It is true that the validity of a will depends on the testator being of sound disposing mind at the time of the making of the Will but at the same time, a sound disposing mind does not depend upon the advanced age. The mere fact that Munshi Ram was 90 years of age at the time of execution of the will, would not ::: Downloaded on - 12/10/2023 20:38:19 :::CIS 18 lead to the conclusion that he was not in sound disposing mind. In Tirath Singh &Ors v. Sajjan Singh (Died) through his LRs &Ors. 1998(1) S.L.J. 232 it was held that mere .
advanced age Will does not lead to any presumption that the testator was not of sound disposing mind. The very fact that the Will in question was got registered by the testator on the same date shows that the testator was of sound disposing mind at the relevant time. See Gurpal Singh v. Darshan Singh 1998 (1) S.L.J. 174. Mr Bhardwaj. learned counsel for the appellant was unable to point out of any evidence on record except that of a self-serving statement of the plaintiff, that the testator was not of sound disposing mind. There is no merit in the contention that the appellant was mentally incapacitated rt to execute a valid Will.
25. This position was reiterated in Om Prakash & others Vs. Bhup Singh & others 2009 HLJ 106, wherein it was observed:-
"6. The mere fact that the testator was old does not conclusively establish that he was not possessed of the sound mental disposing state of mind and was not in a position to understand the disposition, which he was making. This fact had to be established by leading reliable evidence and was not a mere matter of conjecture and inference. Once the due execution of the will was established the intention of the testator as expressed in the will was to be given effect."
26. In the present case, there is no evidence regarding the impairment of the mental faculty of the testator. Hence, the plea that the testator was not of a sound disposing state of mind cannot be accepted.
::: Downloaded on - 12/10/2023 20:38:19 :::CIS 1927. It was submitted that this Will did not see the light of the day for more than one year. Hence, it is a suspicious .
circumstance. This is not acceptable. The defendant admitted in his cross-examination that the plaintiff had produced the Will before Patwari for attestation of mutation. The plaintiff also claimed that he had handed over the Will to the Patwari but of mutation was not entered based on his Will. Therefore, it cannot be said that there was non-production of the Will at the earliest.
rt In any case, the Will was registered and its late production will not be suspicious as laid down by Kerala High Court in P.N. Gopalan Achary Alias Maniyan vs P.N. Parameshwaran Achari RSA.No. 1256 of 2008 decided on 4 February 2010. It was observed:
"14. A suspicious circumstance pointed out by learned counsel is that though plaintiff No.1 died on 12.10.2002 the Will was produced in court only just before the case came up for trial in the list on 7.2.2005, in the meantime, there is not even a whisper about Ext.A4, Will. The belated production of Will according to the learned counsel is a suspicious circumstance. But on the facts and circumstances of this case, that Ext.A4 was produced in court only in 2005 cannot be taken as a suspicious circumstance. It cannot be disputed that Ext.A4 came into force in the year 2001 as it was then registered. Ext.A4 only related to the share of deceased plaintiff No.1. That did not in any way affect the merit of the case. The document was produced before the recording of evidence started. Hence I do not find anything suspicious in the ::: Downloaded on - 12/10/2023 20:38:19 :::CIS 20 non-production of Ext.A4 immediately after it was executed."
.
28. It was submitted that Will (Ext. PW-8/A) mentions that the wife of Jati Ram had died which is a false recital. This is not acceptable. Jati Ram had also mentioned in the Will dated 8.2.2008 that his wife had died. It was mentioned in the Will of Ex.DW-3/A propounded by the defendant that the wife of Jati Ram had left him. Therefore, Jati Ram consistently mentioned rt that his wife had died. No evidence was led by the defendant to show that the wife of Jati Ram was alive; hence it cannot be said that the recital in the Will that the wife of Jati Ram had died was a false recital which would make the execution of the Will suspicious.
29. It was submitted that Krishan Chand was a professional witness and he used to charge money for attesting the documents and this is another suspicious circumstance. This submission is not acceptable. Merely because Krishan Chand had charged money for putting his signatures does not mean that his testimony is to be discarded as a whole. He was a bar clerk. Jati Ram went to his Advocate to get the Will attested. Jati Ram had only one witness with him. So in these circumstances, the ::: Downloaded on - 12/10/2023 20:38:19 :::CIS 21 association of bar clerk by the Advocate cannot be said to be a suspicious circumstance.
.
30. It was submitted that the plaintiff had actively participated in the execution of the Will. He had brought Jati Ram in the vehicle. He had paid the fare and money for writing the Will. Hence, the Will is suspicious. This submission is not of acceptable. It was laid down by Punjab & Haryana High Court in rt Tirath Singh Versus Sajjan Singh 1997 (2) Civil Court Cases 299 (P&H) that the mere fact that the beneficiary accompanied the testator from the village and was present when the Will was being scribed is no ground to make the execution of the Will suspicious. It was held:
"Kartar Singh (D.W.3) also stated in his cross- examination that when they started from the village, he, Tirath Singh, Ralla, Harbhajan Singh, and Karnail Singh were together. According to the learned counsel for the respondent, it clearly goes to show that Tirath Singh and Karnail Singh appellants had taken an active part in getting the Will executed from Ralla in their favour. There is no substance in this contention. It was not elicited from Gobind Parshad (D.W.2) and Kartar Singh (D.W.3) as to how and in what manner Tirath Singh and Karnail Singh had taken an active part in the execution of the Will or that Ralla was influenced by them to execute that Will in their favour. The mere fact that at the time of scribing the Will, they were present or that they had accompanied Ralla from the village to the Court compound where the ::: Downloaded on - 12/10/2023 20:38:19 :::CIS 22 Will was scribed, is not sufficient to draw an inference that they had exercised any undue influence on Ralla and under the influence, Ralla had executed the Will in their .
favour."
31. It was held in Leela v. Drumti Devi, 2000 SCC OnLine HP 20 = AIR 2000 HP 7 that the mere presence of the beneficiary or his accompanying the testator will not establish the exercise of of undue influence in the execution of the Will. It was held:
"Otherwise, also, the presence of the beneficiary or such rt beneficiary accompanying the testator for the execution of a Will, would not show that undue influence was exercised by the beneficiary in the execution of the Will. The Will was registered on the same day and the endorsement of the Sub-Registrar shows that the contents of the Will were read over and explained to Shri Dilu by the Sub-Registrar who admitted the contents to be correct. It is now well settled that the mere presence of the beneficiary or their accompanying the testator would not show the exercise of undue influence in the execution of the Will (See Tirath Singh v. Sajjan Singh (Died) through his L.Rs. 1998 (1) SLJ 232). In Gun Parkash v. Bhola Nath, AIR 1997 Him Pra 27, the Will was scribed in the presence of family members of the beneficiary. The testator was an old lady and natural heirs were deprived by her. In this context, it was observed :
"No doubt, the presence of the family members of the defendants has been stated to be there by the plaintiff's witnesses, but that by itself will not make the Will suspicious unless something more than that is established. The Will in question in the instant case is registered and the deceased was identified by an Advocate before the Sub-Registrar. Simply because the testator was an old lady and ::: Downloaded on - 12/10/2023 20:38:19 :::CIS 23 natural heirs have been deprived by her is not by itself suspicious circumstance to discard the same......."
.
23. It may be remembered that deceased testator Shri Dilu was living at the relevant time with defendant No. 1 and there is nothing unnatural in the defendant, the beneficiary, being present at the time of execution of the Will.
32. Similarly, it was held in Kartar Chand Versus Mathura of Dass 2004 Latest HLJ 105 that the mere fact that the beneficiary was accompanying the testatrix who was at an advanced age is rt not a suspicious circumstance. It was held:
10. This Court in Smt. Leela alias Bali Devi (supra) relying upon Tirath Singh and others v. Sajjan Singh (Died) through his L.Rs. and others, 1998(1) S.LJ. 232 and Gun Parkash and another v. Bhola Nath, AIR 1997 H.P 27, held that the fact that the beneficiary accompanied the testator for the execution of a Will, would not show that undue influence was exercised by the beneficiary in the execution of the Will. The presence of the family members of the beneficiary in itself will not make the Will suspicious unless something more than that is established. Simply because the testatrix was an old lady, suffering from tuberculosis and the fact that her natural heirs were deprived in itself will not be a suspicious circumstance to discard the Will.
33. In the present case, the statements of the witnesses including the Advocate of Jati Ram that the Will was written at the instance of Jati Ram have remained unshaken. Jati Ram had ::: Downloaded on - 12/10/2023 20:38:19 :::CIS 24 gone to his Advocate for the execution of the Will. The Advocate remained present throughout the proceedings. Hence, Jati Ram .
had independent advice available to him and in these circumstances, the mere presence of the beneficiary or the payment of the money cannot lead to an inference that the beneficiary had prevailed upon the testator to execute the Will in of his favour. Therefore, the execution of the Will cannot be held to be suspicious because of the presence of the beneficiary.
rt
34. The defendant admitted in his cross-examination that Jati Ram was residing separately from him. He also admitted that the plaintiff was cultivating the land, hence the version of the defendant that he was taking care of the deceased is not established by the cross-examination of the defendant.
Had he been taking care of the deceased, he would have resided with the deceased and taken care of his property.
35. It was laid down by the Hon'ble Supreme Court in Gurnam Singh v. Lehna Singh, (2019) 7 SCC 641 : (2019) 3 SCC (Civ) 709: 2019 SCC OnLine SC 374, that where the First Appellate Court had appreciated the facts regarding the execution of the Will, it is not permissible for the High Court to interfere with this ::: Downloaded on - 12/10/2023 20:38:19 :::CIS 25 findings of fact in second appeal under Section 100 of CPC. It was observed:
.
"15. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has erred in reappreciating the evidence on record in the second appeal under Section 100 CPC. The High Court has materially erred in interfering with the findings recorded of by the first appellate court, which were on reappreciation of evidence, which was permissible by the first appellate court in the exercise of powers under Section 96 CPC. Cogent reasons, on appreciation of the evidence, were rt given by the first appellate court. The first appellate court dealt with, in detail, the so-called suspicious circumstances which weighed with the learned trial court and thereafter it came to the conclusion that the will, which as such was a registered will, was genuine and did not suffer from any suspicious circumstances. The findings recorded by the first appellate court are reproduced hereinabove. Therefore, while passing the impugned judgment and order [Lehna Singh v. Gurnam Singh, Civil Regular Second Appeal No. 2191 of 1985, order dated 27-11-2007 (P&H)], the High Court has exceeded its jurisdiction while deciding the second appeal under Section 100 CPC."
36. In Kashibai v. Parwatibai, (1995) 6 SCC 213, the High Court had interfered with the findings of fact recorded by the Courts regarding the validity of the Will. It was held by the Hon'ble Supreme Court that it is not permissible for the High Court to interfere with the findings of fact related to the ::: Downloaded on - 12/10/2023 20:38:19 :::CIS 26 execution of the Will while hearing the second appeal. It was observed:-
.
"11...... In the present case, the trial court after a close scrutiny and analysis of the evidence of Defendant 1, SmtParvati Bai, VirBhadra, Sheikh Nabi, Shivraj and GyanobaPatil who are witnesses to the Will recorded the finding that none of them deposed that Lachiram had signed the said Will before them and they had attested it.
of None of them except Sheikh Nabi even deposed as to when the talk about the execution of Will was held. The witness Sheikh Nabi, however, deposed that the talk rt about the Will also took place at the time of the talk about the adoption. But this witness too did not depose that deceased Lachiram had signed the alleged Will in his presence. In the absence of such evidence it is difficult to accept that the execution of the alleged Will was proved in accordance with law as required by Section 68 of the Evidence Act read with Section 63 of the Indian Succession Act and Section 3 of the Transfer of Property Act. It may be true as observed by the High Court that the law does not emphasise that the witness must use the language of the section to prove the requisite merits thereof but it is also not permissible to assume something which is required by law to be specifically proved. The High Court simply assumed that Lachiram must have put his signature on the Will Deed in the presence of the attesting witness Sheikh Nabi simply because the Deed of Adoption is admitted by the witness to have been executed on the same day. The High Court committed a serious error in making the observations that broad parameters of Nabi's evidence would show that Lachiram executed the Will in his presence, that he signed the Will being part of the execution of the testament and this evidence in its correct background would go to show that what was required under Section 63 has been carried out ::: Downloaded on - 12/10/2023 20:38:19 :::CIS 27 in the execution of the Will. With respect to the High Court, we may say that these findings of the High Court are clearly based on assumptions and surmises and, .
totally against the weight of the evidence on record. The trial court on a close and thorough analysis of the entire evidence came to a proper conclusion that the Will has not been proved in accordance with the law which finding has been further affirmed by the lower appellate court after an independent reappraisal of the entire evidence with which we find ourselves in agreement as there was hardly any scope or of a valid reason for the High Court to interfere with.
12. Further, it may not be out of place to mention that sub-section (1) of Section 100 of the Code of Civil rt Procedure explicitly provides that an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court if the High Court is satisfied that the case involves a substantial question of law. Sub-section (4) of Section 100 provides that when the High Court is satisfied that a substantial question of law is involved in any case it shall formulate that question. But surprisingly enough the High Court seems to have ignored these provisions and proposed to reappreciate the evidence and interfere with the findings of fact without even formulating any question of law. It has been the consistent view of this Court that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, based on appreciation of the relevant evidence. There is a catena of decisions in support of this view. Having regard to all the facts and circumstances of the present case discussed above, we are satisfied that there was no justification for the High Court to interfere with the well-reasoned findings of the two courts below. Consequently, this appeal must succeed." (Emphasis supplied).::: Downloaded on - 12/10/2023 20:38:19 :::CIS 28
37. It was held in Lisamma Antony v. Karthiyayani, (2015) 11 SCC 782, that it is impermissible to interfere with the findings .
of fact under Section 100 of CPC. It was held:
"11. It is a settled principle of law that a second appeal under Section 100 of the Code of Civil Procedure, 1908, cannot be admitted unless there is a substantial question of law involved in it. As to what is a substantial question of of law, in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar [Kondiba DagaduKadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722], this Court has explained the position of law as under : (SCC pp. 725-26, para 6) rt "6. If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in a second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in the second appeal."::: Downloaded on - 12/10/2023 20:38:19 :::CIS 29
12. In view of the above position of law, the question formulated by the High Court in the present case, as quoted above, cannot be termed to be a question of law, .
much less a substantial question of law. The above question formulated is nothing but a question of fact. Merely for the reason that on appreciation of evidence another view could have been taken, it cannot be said that the High Court can assume the jurisdiction by terming such a question as a substantial question of law.
13. Having gone through the impugned order challenged of before us and after considering the submissions of the learned counsel for the parties, we are of the view that the High Court has simply re-appreciated the evidence on record and allowed the second appeal and remanded the rt matter to the trial court."
38. Similar view was taken in Narendra v. Ajabrao, (2018) 11 SCC 564, wherein it was observed:-
"17. In the first place, we find that the High Court decided the second appeal like a first appeal under Section 96 of the Code inasmuch as the High Court went on appreciating the entire oral evidence and reversed the findings of fact of the first appellate court on the question of adverse possession. Such an approach of the High Court, in our opinion, was not permissible in law.
18. Second, the High Court failed to see that a plea of adverse possession is essentially a plea based on facts and once the two courts, on appreciating the evidence, recorded that a finding may be of reversal, such finding is binding on the second appellate court. It is more so as it did not involve any question of law much less substantial question of law. This aspect of law was also overlooked by the High Court.
19. Third, the High Court has the jurisdiction, in appropriate cases, to interfere in the finding of fact ::: Downloaded on - 12/10/2023 20:38:19 :::CIS 30 provided such finding is found to be wholly perverse to the extent that no judicial person could ever record such finding or when it is found to be against any settled .
principle of law or pleadings or evidence. Such errors constitute a question of law and empower the High Court to interfere. However, we do not find any such error here."
39. It was held in Ramathal v. Maruthathal, (2018) 18 SCC of 303 that it is not appropriate for the High Court to disturb the concurrent findings of fact by re-appreciating the evidence and rt its jurisdiction is confined to the substantial question of law. It was observed:-
"13. It was not appropriate for the High Court to embark upon the task of reappreciation of evidence in the second appeal and disturb the concurrent findings of fact of the courts below which are the fact-finding courts. At this juncture, for better appreciation, we deem it appropriate to extract Sections 100 and 103 CPC, which reads as follows:
"100. Second appeal.--(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.::: Downloaded on - 12/10/2023 20:38:19 :::CIS 31
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
***
103. Power of High Court to determine issues of of fact.-- In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of rtthe appeal--
(a) which has not been determined by the lower appellate court or both by the court of first instance and the lower appellate court, or
(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100."
14. A clear reading of Sections 100 and 103 CPC envisages that a burden is placed upon the appellant to state in the memorandum of grounds of appeal the substantial question of law that is involved in the appeal, then the High Court being satisfied that such a substantial question of law arises for its consideration has to formulate the questions of law and decide the appeal.
Hence a prerequisite for entertaining a second appeal is a substantial question of law involved in the case which has to be adjudicated by the High Court. It is the intention of the legislature to limit the scope of a second appeal only when a substantial question of law is involved and the amendment made to Section 100 makes the legislative intent more clear that it never wanted the High Court to be a fact-finding court. However, it is not an absolute rule that the High Court cannot interfere in a second appeal on a question of fact. Section 103 CPC enables the High Court to consider the evidence when the same has been wrongly ::: Downloaded on - 12/10/2023 20:38:19 :::CIS 32 determined by the courts below on which a substantial question of law arises as referred to in Section 100. When appreciation of evidence suffers from material .
irregularities and when there is perversity in the findings of the court which are not based on any material, the court is empowered to interfere on a question of fact as well. Unless and until there is absolute perversity, it would not be appropriate for the High Courts to interfere in a question of fact just because two views are possible; in such circumstances, the High Courts should restrain of itself from exercising the jurisdiction on a question of fact.
15. When the intention of the legislature is so clear the courts have no power to enlarge the scope of Section 100 rt for whatsoever reasons. Justice has to be administered in accordance with the law. In the case on hand, the High Court has exceeded its jurisdiction by reversing the well- considered judgment of the courts below which is based on cogent reasoning. The learned Judge ought not to have entered the arena of reappreciation of the evidence, hence the whole exercise done by the High Court is beyond the scope and jurisdiction conferred under Section 100 CPC."
40. Similarly, it was held in C. Doddanarayana Reddy v. C. Jayarama Reddy, (2020) 4 SCC 659 that the High Court cannot interfere with the concurrent findings of fact unless there is perversity or the same is de hors the evidence led before the Courts:
"25. The question as to whether a substantial question of law arises has been a subjectmatter of interpretation by this Court. In the judgment in Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan [Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan, (1999) 6 ::: Downloaded on - 12/10/2023 20:38:19 :::CIS 33 SCC 343], it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under : (SCC pp. 347-48, paras 12-15) .
"12. This Court had repeatedly held that the power of the High Court to interfere in a second appeal under Section 100 CPC is limited solely to deciding a substantial question of law if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below of without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.
rt
13. In Ramanuja Naidu v. V. Kanniah Naidu [Ramanuja Naidu v. V. Kanniah Naidu, (1996) 3 SCC 392], this Court held : (SCC p. 393) 'It is now well settled that concurrent findings of fact of the trial court and the first appellate court cannot be interfered with by the High Court in the exercise of its jurisdiction under Section 100 of the Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did.'
14.In Navaneethammal v. ArjunaChetty [Navaneethammal v. Arjuna Chetty, (1996) 6 SCC 166] , this Court held : (SCC p. 166) 'Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts. ... Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot ::: Downloaded on - 12/10/2023 20:38:19 :::CIS 34 be said that the view taken by the first appellate court was based on no material.'
15. And again in Taliparamba Education Society v.
.
Moothedath MallisseriIllath M.N. [Taliparamba Education Society v. Moothedath MallisseriIllath M.N., (1997) 4 SCC 484], this Court held : (SCC p. 486, para 5) '5. ... The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact, which is impermissible."
of
41. This position was reiterated in State of Kerala v.
rt Joseph, 2023 SCC OnLine SC 961, wherein it was held:
18. A perusal of the judgment impugned does not reflect any question of law, either substantial or "involving in the case" to have been framed by the Court in the Second Appeal. Section 100, of CPC jurisdiction is not akin to the jurisdiction conferred under Section 96 of CPC wherein it is open for the Court to consider both questions of fact and law. This jurisdiction is exercisable only when the Court is convinced that the dispute at hand involves a substantial question of law, and proceeding under this jurisdiction sans framing questions of such nature renders the proceedings to be "patently illegal."
[Umerkhan v. Bismillabi (2011) 9 SCC 684(two-Judge Bench)
19. Recently, a Bench of two learned Judges in Singaram v. Ramanathan Civil Appeal No. 4939 of 2021 held as under:
"This is undoubtedly subject to various well- known exceptions which, however, cannot permit the Second Appellate Court to interfere with the findings of fact as a matter of course. Such restrictions are placed on the High Court in order that there is finality to litigation at a particular level in the hierarchy of Courts. The limitation on ::: Downloaded on - 12/10/2023 20:38:19 :::CIS 35 the exercise of power by the High Court in the Second Appeal interfering with the judgment of the First Appellate Court is premised on high .
public policy. This limitation is sought to be secured by insisting upon the requirement that a Second Appeal is considered only when there is a substantial question of law. Therefore, the existence of substantial questions of law and the judgment which revolves around answering the substantial questions of law are not mere formalities. They are of meant to be adhered to."
(Emphasis supplied)
42. Therefore, it is not permissible for this Court to rt interfere with the pure findings of the fact unless they are shown to be perverse. As stated above, the findings are based on the evidence and cannot be called to be perverse.
43. Therefore, the learned Courts below had rightly held that the execution of the Will propounded by the plaintiff was duly proved. Since this was the last Will, which had revoked the earlier Wills; therefore, it is not necessary to discuss the evidence regarding the earlier Wills propounded by the plaintiff and the defendant.
44. Both the learned Courts below had properly appreciated the oral and documentary evidence. There is no perversity in it. There was no suspicious circumstance and the suspicions pointed out during the arguments were duly ::: Downloaded on - 12/10/2023 20:38:19 :::CIS 36 considered. There is no infirmity in the concurrent findings of fact recorded by the learned Courts below and the proposed .
substantial questions of law do not arise in the present case.
Final order:
45. In view of the above, the present appeals fail and they are dismissed, so also pending miscellaneous application(s), if of any.
rt (Rakesh Kainthla)
Judge
12th October, 2023
(Chander)
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