Himachal Pradesh High Court
Shri Nikku Ram Son Of Shri Samundu vs State. He on 29 August, 2022
Author: Satyen Vaidya
Bench: Satyen Vaidya
Reportable/Non-reportable
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
ON THE 29th DAY OF AUGUST, 2022
.
BEFORE
HON'BLE MR. JUSTICE SATYEN VAIDYA
REGULAR SECOND APPEAL NO.566 of 2011
BETWEEN:-
SHRI NIKKU RAM SON OF SHRI SAMUNDU,
R/O VILLAGE SAI BRAHMANA PARAGA
RATTANPUR, TEHSIL SADAR, DISTRICT
BILASPUR (H.P.)
....APPELLANT/PLAINTIFF
(BY MR. AJAY KUMAR, SENIOR ADVOCATE WITH MR.
ROHIT ADVOCATE.)
AND
1. SHRI BUDHI RAM (SINCE DECEASED)
THROUGH LEGAL REPRESENTATIVES:-
1(A)SMT. AJUDHIYA DEVI (WIFE)
1(B) SHRI PARKASH CHAND (SON)
1(C) SHRI KISHORI LAL (SON)
1(D)SMT. SARSWATI DEVI (DAUGHTER).
ALL R/O VILLAGE DHABETA NEAR
SWARGHAT, TEHSIL SRI NAINA DEVI JI,
DISTRICT BILASPUR, H.P.
2. SHRI BHURI LAL SON OF SHRI
SAMUNDU C/O SHRI NAROTAM DUTT,
THROUGH LEGAL HEIRS:-
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2(A) SMT. DEVAKI SHARMA, WIFE OF
.
LATE SH. BHURI LAL,
2(B) SH. DHEERAJ SHARMA S/O LATE
SH. BHURI LAL,
2(C) SH. HARISH DEEP SHARMA SON
OF LATE SH. BHURI LAL
2(D) SMT. KRTITI SHARMA D/O LATE
SH. BHURI LAL,
ALL RESIDENT OF VILLAGE ANJHI, P.O.
KASUMPATI, TEH AND DISTT. SHIMLA,
H.P.
3. SHRI MUNSHI RAM SO OF SHRI
SAMUNDU,
r R/O VILLAGE SAI
BRAHMNA PARAGA RATTANPUR,
TEHSIL SADAR, DISTRICT BILASPUR,
(H.P.).
4. SMT. DEO DEVI WIFE OF LATE SHRI
SAMUNDU R/O VILLAGE SAI BRAHMNA
PARAGA RATTANPUR, TEHSIL SADAR,
DISTRICT BILASPUR, (H.P.).
....RESPONDENTS/DEFENDANTS.
(BY MR. BHUPENDER GUPTA,
SENIOR ADVOCATE WITH MR.
JANESH GUPTA, ADVOCATE)
RESERVED ON: 25th AUGUST, 2022.
DECIDED ON: 29th AUGUST, 2022.
This regular second appeal coming on for
hearing this day, the Court passed the following: -
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JUDGMENT
.
The appellant assails judgment and decree dated 28.09.2011 passed by learned District Judge, Bilaspur in Civil Appeal No. 22 of 2009, whereby the judgment and decree dated 30.04.2009 passed by learned Civil Judge (Senior Division), Bilaspur, in Civil Suit No. 106-1 of 2002, dismissing the suit of the plaintiff was affirmed.
2. The parties herein shall be referred by the same status as they held before the learned trial Court.
The appellant herein is the plaintiff and respondents No.1 and 2 are the defendants and respondents No.3 and 4 are the proforma defendants.
3. Plaintiff filed a suit seeking declaration to the effect that plaintiff and proforma defendants were owner in possession of the suit land on the basis of Will dated 16.03.1999 executed by late Shri Samundu with further declaration to declare the Will dated 03.04.1999 of Shri Samundu as null and void on the ground that Shri ::: Downloaded on - 29/08/2022 20:04:31 :::CIS ...4...
Samundu did not execute the said Will with free mind or .
without pressure. A decree of permanent prohibitory injunction was also sought against the defendants from causing any interference in the suit land and the house situated thereon. In the alternative a decree of possession, in case of dispossession of the plaintiff during the pendency of the suit was also prayed for.
4. As per plaintiff, late Shri Samundu was father of plaintiff, defendants No.1 to 3 and husband of proforma defendant No.4. Defendant No.2 was stated to be son of late Shri Samundu from his second wife Smt. Devo i.e. proforma defendant No.4. Plaintiff, defendants No.1 and 3 were stated to be the sons of late Shri Samundu from his first wife namely Smt. Durgi. Plaintiff claimed that late Sh. Samundu had executed a Will dated 16.03.1999 bequeathing his properties in favour of plaintiff and proforma defendants. The Will was also claimed to be registered with Sub Registrar, Bilaspur, on the same day i.e. on 16.03.1999. The plaintiff also ::: Downloaded on - 29/08/2022 20:04:31 :::CIS ...5...
averred that the original Will executed by late Shri .
Samundu on 16.03.1999 was destroyed by defendant No.1 by putting the same on fire. Plaintiff could retrieve some burnt pieces of the document.
5. According to the plaintiff, the defendants got mutation No.256 attested after death of Shri Samundu on 25.01.2001 on the basis of another Will dated 03.04.1999 allegedly executed by late Sh. Samundu. The Will dated 03.04.1999 was alleged to be result of fraud, mis-
representation and undue influence. Plaintiff pleaded the date of knowledge about executed of Will dated 03.04.1999 to be after attestation of mutation No.256.
6. Written statement was filed on behalf of the defendants. Preliminary objections as to maintainability, lack of cause of action, estoppel etc., were raised. On merits, it was specifically pleaded that Will dated 16.03.1999 had been revoked by late Shri Samundu by executing his last Will dated 03.04.1999. It was also alleged that the Will dated 16.03.1999 was result of ::: Downloaded on - 29/08/2022 20:04:31 :::CIS ...6...
fraud, mis-representation and undue influence. On the .
basis of subsequent Will of late Shri Samundu, dated 03.04.1999, the defendants claimed themselves to be owner in possession of the suit land. As per defendants, late Shri Samundu had thrown the original Will dated 16.03.1999 into fire, when he was made to understand by his grandson Shri Prakash Chand that his two sons had been disinherited under the Will dated 16.03.1999. The allegations of Will dated 16.03.1999 being burnt by defendant No.1 were denied.
7. On the basis of pleadings of the parties, following issues were framed: -
1. Whether deceased Samundu executed a valid and legal "Will" dated 16.03.1999 in favour of the plaintiff and proforma defendants, as alleged? OPP
2. Whether the plaintiff and proforma defendants are owners in possession of the suit land, as alleged? OPP.
3. Whether the "Will" dated 03.04.1999 executed by Samundu in favour of the parties to the suit is valid and legal "Will"? OPD
4. Whether the suit is not maintainable? ...OPD ::: Downloaded on - 29/08/2022 20:04:31 :::CIS ...7...
5. Whether the plaintiff has no cause of action, as alleged? OPD.
.
6. Whether the plaintiff is estopped from filing the present suit by his act and conduct? OPD.
7. Relief.
8. Both the learned Court below held both the Wills dated 16.03.1999 propounded by the plaintiff and 03.04.1999 propounded by the defendants as validly executed Wills, however, the suit of the plaintiff was dismissed on the ground that Will dated 03.04.1999 being later in time impliedly revoke the earlier Will dated 16.03.1999.
9. The instant appeal was admitted on 19.04.2012 on the following substantial questions of law:
-
1. Whether the findings of the Courts below are a result of complete misreading of pleadings, evidence and the law as applicable to the facts of the case and particularly documents Ex.PW2/A, Ex.DW2/A and Ex. PX and statements of DW3, DW4, DW5 and DW6 and as such palpably erroneous and illegal and if so to what effect?
2. Whether in the face of the oral and documentary evidence produced in the case the Courts below were justified in holding Ex.DW2/A ::: Downloaded on - 29/08/2022 20:04:31 :::CIS ...8...
as a legal and valid Will of late Shri Samundu by discarding the earlier Will PW2/A?
.
10. I have heard Mr. Ajay Kumar, Senior Advocate for the plaintiff and Mr. Bhupender Gupta, Senior Advocate for the defendants and have also gone through the entire records carefully.
11. Shri Ajay Kumar, learned Senior Advocate, representing the plaintiff has contended that both the learned Courts below have wrongly, illegally held the Will dated 03.04.1999 (Ex.DW5/A) to have been proved in accordance with law. He has contended that the original document i.e. Will dated 03.04.1999 was not produced on record and in absence thereof the will Ex.DW5/A cannot be said to have been proved.
12. On the other hand, Shri Bhupender Gupta, learned Senior Advocate, representing the defendants submitted that Will Ex.DW5/A was duly proved on record.
DW-2 Buleshwar Dutt produced the record of registration of the Will dated 03.04.1999 on the basis of which a ::: Downloaded on - 29/08/2022 20:04:31 :::CIS ...9...
photo copy of the said document was proved on record .
as Ex.DW5/A. He further contended that it was the Will dated 16.03.1999 propounded by the plaintiff that was not proved in accordance with law. Admittedly, the original of Will dated 16.03.1999 was alleged to have been destroyed. In the absence of the original, Will Ex.PW2/A dated 16.03.1999 being merely a copy could not be held to be proved in accordance with law.
13. Learned First Appellate Court and the learned Trial Court, both have returned the concurrent findings of fact that plaintiff has been able to prove valid execution of Will Ex.PW2/A and defendant No.1 has also been able to prove execution of Will Ex.DW5/A in accordance with law. Further, Will Ex.DW5/A being later in time has been held to have impliedly revoked the earlier Will, Ex.PW2/A, therefore, the mutation No. 256 recorded on the basis of second Will of late Shri Samundu, Ex.DW5/A has been upheld.
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14. Though the findings returned by both the .
courts on Issue No.3 are concurrent, but on detailed examination of material on record such findings need interference and cannot be sustained for reasons detailed hereafter. Such findings are clearly perverse as these do not confirm to the applicable provisions of law.
15. As per the case of the defendants, criminal proceedings were initiated on the complaint of one Budhi Ram s/o Sihnu Ram, whose name was mentioned as identifier of the testator in Will Ex.DW5/A. The allegation was that the signatures of identifier on said Will were forged. The original Will was stated to be taken into possession by the police during the investigation of the case. Challan was presented in the Court and the original Will was also stated to be made part of the report under Section 173 of the Code of Criminal Procedure.
Defendants produced Shri Buteshwar Dutt, Criminal Ahlmad, court of Judicial Magistrate 1 st Class, Bilaspur, who had brought the summoned record i.e. case file No. ::: Downloaded on - 29/08/2022 20:04:31 :::CIS ...11...
7/1 of 2004, titled as Budhi Ram versus State. He .
deposed that the original Will of Samundu Ram was annexed in the file. As per this witness Ex.PW2/A was the certified copy of the Will of Samundu Ram and was correct according to the original. In this manner, a copy of Will dated 03.04.1999 of Samundu Ram was placed on record and initially exhibited as Ex.PW2/A, later on converted to Ex.DW5/A. Perusal of document Ex.DW5/A reveals that a certified copy of the document was obtained from the file of case No. 7/1 of 2004, titled as Budhi Ram vs. State of Himachal Pradesh, pending before the learned Judicial Magistrate 1st Class, Bilaspur.
16. Record further reveals that original Will dated 03.04.1999 was never produced on record. The will dated 03.04.1999 was stated to be a registered document for which witnesses DW-3 Uma Gupta and DW-
4 Pratap Singh were examined. DW-3 was the registration clerk in the office of Sub Registrar Bilaspur. She produced the summoned record i.e. a copy of Will of Samundu Ram ::: Downloaded on - 29/08/2022 20:04:31 :::CIS ...12...
pasted in the Register No. 76, Book No.3, Volume No.106, .
page 47, dated 03.04.1999. After the deposition, DW-3 had taken back the aforesaid record brought by her. No effort was made to get the original record, containing pasted copy of the Will dated 03.04.1999, retained in the Court. Even a certified copy of Will produced by DW-2 Buteshwar Dutt was not compared with the original produced by DW-3.
17. DW-4 was the Sub Registrar, who had registered Will dated 03.04.1999 at Village Chehari. This witness verified the copy of Will Ex.PW2/A to be true copy of original Will found in the record produced by DW-3.
Noticeably, DW-3 and DW-4 were examined on the same day i.e. on 28.12.2004.
18. The original Will was in the records of case file No. 7/1 of 2004 of the court of Judicial Magistrate 1 st Class, Bilaspur, but no effort was made to place the original record of the Will on the file before the learned trial Court. The second copy of the Will pasted in the ::: Downloaded on - 29/08/2022 20:04:31 :::CIS ...13...
relevant register of Sub Registrar, Bilaspur, was also not .
retained in the Court. Resultantly, the entire reliance was placed on a copy of Will exhibited as Ex.DW5/A. Admittedly, the defendants had not sought any permission of the Court to prove the Will dated 03.04.1999 by leading secondary evidence. That being so, the question arises as to whether in absence of original of Will dated 03.04.1999, the courts below were justified in holding the execution of Will dated 03.04.1999, in accordance with law? The rules of evidence contained in the Indian Evidence Act, 1872, (for short "Act") provide for the mode and manner for proving a fact. As per Section 61 of the Act, the contents of documents may be proved either by primary or by secondary evidence. Primary evidence, as per Section 62 of the Act means the document itself produced for the inspection of the Court and secondary evidence as per Section 63 of the Act means and includes (1) certified copies given under the provisions of Section 76 of the ::: Downloaded on - 29/08/2022 20:04:31 :::CIS ...14...
Act; (2) copies made from the original by mechanical .
processes which in themselves insure the accuracy of the copy, and copies compared with such copies; (3) copies made from or compared with the original; (4) counterparts of documents as against the parties who did not execute them; (5) oral accounts of the contents of a document given by some person who has himself seen it.
Section 64 of the Act mandates that the documents must be proved by primary evidence except in the cases mentioned thereafter. Section 65 of the Act provides for conditions in which secondary evidence can be allowed to be lead by the Courts. In the facts of the instant case neither any case was made out by the defendants for leading secondary evidence nor any permission was sought in that behalf from the Court. In such circumstances, the document i.e. Will dated 03.04.1999 cannot be said to be proved as the primary evidence (original Will) was not produced on record.
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19. Plaintiff had specifically alleged the Will dated .
03.04.1999 to have been procured by fraud, mis-
representation and force etc. Meaning thereby that the due execution of Will by late Shri Samundu Ram was not admitted. Voluntary execution of a Will without any fraud, mis-representation and coercion is sine qua non for proving the due execution of a Will.
r Section 68 of the Indian evidence Act reads as under:-
"68. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the 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:
[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.] ::: Downloaded on - 29/08/2022 20:04:31 :::CIS ...16...
The Will is required to be attested by two witnesses. As .
per Section 63 of the Indian Succession Act, 1925, a specific mode for execution of Will has been provided therein. Thus, for proving the execution of Will at least one of the attesting witnesses, if alive, is required to be produced for proving the execution of Will. In this case, defendants have examined DW-5 as attesting witness of Will dated 03.04.1999. Incidentally, at the time of examination of DW-4 as witness before the learned trial Court, the original document i.e. Will dated 03.04.1999 was not shown to him as the same was not available at the time of his examination. In the absence of original document, the requirement of Section 68 of the Act cannot be said to be fulfilled as the attesting witness could depose about the execution of the document placed before him, only when the defendants had placed on record the original thereof. When the defendants had failed to prove the Will dated 03.04.1999 by not producing the original document in the record, its due ::: Downloaded on - 29/08/2022 20:04:31 :::CIS ...17...
execution cannot be said to have been proved by merely .
producing an attesting witness and confronting him with only a copy of the document that too without seeking permission to lead secondary evidence. The provisions of Section 68 of the Act are mandatory, so much so that even in the cases of a registered Will no exception is carved out as r is available with respect to other documents required to be attested by law.
20. Thus, I have no hesitation to hold that neither the Will date d03.04.1999 propounded by defendant No.1 was proved to exist nor its due execution was proved in accordance with law. Contrary findings recorded by both the learned Courts below thus needs interference being palpably wrong. Undoubtedly, such findings have been recorded by ignoring the provisions of law which renders such findings perverse.
21. Coming to the Will propounded by plaintiff, Ex.PW2/A, admittedly the original thereof was not available. Plaintiff specifically pleaded that the original ::: Downloaded on - 29/08/2022 20:04:31 :::CIS ...18...
Will was destroyed in fire by defendant No.1, whereas .
defendant No.1 submitted that the original Will was thrown in fire by late Shri Samundu himself. Be that as it may, the fact remains that the original Will dated 16.03.1999 was not available. Plaintiff moved an application dated 17.11.2003 seeking leave of the Court to prove the Will dated 16.03.1999 by leading secondary evidence. Learned trial Court allowed the application of plaintiff with a prayer to lead secondary evidence on 17.11.2003 itself as defendants had pleaded no objection to the grant of prayer made in the aforesaid application.
The plaintiff was allowed to lead secondary evidence.
22. Plaintiff examined PW-2 Uma Gupta, Registration Clerk from the office of Sub Registrar, Bilaspur. She produced the summoned record i.e. the pasted copy of Will dated 16.03.1999, pasted in Book No.3 Volume 80. This document was stated to have been registered at serial No.63. A photo copy of the Will was exhibited as Ex.PW2/A and was verified to be correct ::: Downloaded on - 29/08/2022 20:04:31 :::CIS ...19...
copy of the original. This witness was not cross-
.
examined on behalf of the defendants. PW-2 had appeared as witness before the learned trial Court on 25.05.2004. Plaintiff examined PW-4 Brij Lal and PW-5 Daya Ram as attesting witnesses of the Will. PW-4 and PW-5 were also examined on 25.05.2004 and they deposed as to the execution of the Will by Samundu Ram on the basis of pasted copy of Will dated 16.03.1999 produced in the Court by PW-2. The pasted copy of the Will in the records of Registrar is also the primary evidence as per explanation (1) to Section 62 of the Indian Evidence Act which provides that where a document is executed in several parts each part is primary evidence of the document. For registration purposes two copies of Will are prepared. Both copies are signed in original by the testator as well as by the attesting witnesses. In any case, plaintiff was allowed to lead secondary evidence and he had proved the document in accordance with law. Its due execution was ::: Downloaded on - 29/08/2022 20:04:31 :::CIS ...20...
also proved by PW-4 and PW-5 being its attesting .
witnesses. Both the learned Courts below have concurrent held the Will Ex.PW2/A to have been duly proved and in view of the above discussion no interference is required in such findings.
23. Both the substantial questions of law are answered accordingly.
24. In view of the aforesaid analysis the appeal is allowed. Judgment and decree dated 28.09.2011 passed by learned District Judge, Bilaspur in Civil Appeal No. 22 of 2009, whereby the judgment and decree dated 30.04.2009 passed by learned Civil Judge (Senior Division), Bilaspur, in Civil Suit No. 106-1 of 2002, dismissing the suit of the plaintiff was affirmed, is set aside. Issue No.1 is held proved, whereas issue No.3 is held not proved. The findings returned on all other issues do not require interference. Accordingly, the suit of the plaintiff is decreed. The Will dated 16.03.1999 Ex.PW2/A, executed by late Shri Samundu Ram is held to be legal ::: Downloaded on - 29/08/2022 20:04:31 :::CIS ...21...
and valid Will and the plaintiff and proforma defendants .
are held to be owner in possession of the suit land on the basis of aforesaid Will of late Shri Samundu Ram. The defendants are restrained from causing any interference in the ownership and possession of the plaintiff and proforma defendants qua the suit land. Decree sheet be prepared accordingly. Pending applications, if any, shall also stand disposed of.
(Satyen Vaidya) Judge 29th August, 2022.
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