Himachal Pradesh High Court
Sham Singh vs Smt. Rano Devi on 12 January, 2007
Equivalent citations: 2007(1)SHIMLC218
Author: Surinder Singh
Bench: Surinder Singh
JUDGMENT Surinder Singh, J.
1. This second appeal has been directed by the defendant, feeling aggrieved and dis-satisfied by the judgment and decree of reversal, passed by the Additional District Judge, in Civil Appeal No. 28N of 1998 decided on 14.1.2000. The parties hereinafter in this judgment shall be referred to as the plaintiff and defendant.
2. The appeal was admitted on 31.3.2000, for hearing, on the following substantial questions of law:
1. Whether statement of witnesses that Special reference to DW-2, DW-3, DW-4 and PW-1, PW-2 have been misread and misappreciated by learned first appellate Court below, thereby vitiating the impugned judgment and decree?
2. Whether exhibit D-l, D-3 and DX have been misread and misappreciated by the learned first appellate Court below thereby vitiating the impugned judgment and decree?
3. In brief facts are that Smt. Rano Devi plaintiff is admittedly the daughter's daughter of deceased Ram Singh, whose will is in dispute. After the death of Ram Singh, plaintiff Rano Devi claimed his estate, as his legal heir and disputed the will; whereas defendant Sham Singh claimed that his elder brother Udham Singh used to reside with and look after Ram Singh as his servant and in lieu of his services Ram Singh gifted away some land to him. Thereafter Ram Singh testator had married Leela Devi widow as per the custom and from this wedlock the defendant is alleged to have taken birth. During his life time, Ram Singh (deceased) out of love and affection and in lieu of services rendered by the mother of the defendant had executed a Will in favour of the defendant and in addition to it he claimed the estate on the basis of inheritance as the son of deceased Ram Singh and also took various preliminary objections, in his written statement and prayed for the dismissal of the suit.
4. On the pleadings of the parties, the following issues were framed:
1. Whether the plaintiff is the sole Legal representative in order to succeed the suit property belonging to deceased Ram Singh, as alleged? OPP
2. If issue No. 1 is proved, whether the suit property had been wrongly, unlawfully, illegally and fraudulently succeeded by defendant No. 2 after the death of deceased Ram Singh as alleged? OPP
3. Whether the suit is not maintainable in the present form as alleged? OPD
4. Whether the suit is bad for non-joinder of necessary parties, as alleged? OPD
5. Whether the plaintiff has no locus standi to file the present suit as alleged? OPD
6. Relief.
5. The learned trial Court dismissed the suit on 31.10.1995, against which an appeal was filed before the learned District Judge, Kangra at Dharamshala, who assigned the same to the learned Additional District Judge, for disposal. The learned Additional District Judge, allowed the appeal and remanded the case back to the trial Court after reframing the issues on 15.7.1997 as follows:
1. Whether the plaintiff is the sole legal representative to succeed to the suit property belonging to deceased Ram Singh, as alleged? OPP
2. Whether the defendant is the son of late Sh. Ram Singh, as alleged? OPD
3. Whether the deceased Ram Singh, executed a valid will in favour of defendant, as alleged? OPD
4. Whether the suit is not maintainable in the present form? OPD
5. Whether the suit, is bad for non joinder of necessary parties, as alleged? OPD
6. Whether the plaintiff has no locus standi or cause of action to file the present suit, as alleged? OPD
7. Relief.
6. The trial Court again after perusing the evidence and hearing the parties, decided that the plaintiff was not the sole legal representative of the deceased and held that defendant is the son of late Ram Singh and that the will in question was validly executed by Ram Singh in favour of the defendant Sham Singh. Thus, the plaintiff has no locus standi and cause of action to file the present suit, consequently the suit was dismissed.
7. The plaintiff felt aggrieved by the impugned judgment and decree and filed an appeal before the learned District Judge, who had assigned it to the learned Additional District Judge for its disposal. The learned first Appellate Court i.e. the Additional District Judge on reappraising the evidence reversed the findings with respect to the Will and held that the defendant is not the son of Ram Singh and consequently allowed the appeal.
8. Against the impugned judgment and decree passed by the learned first Appellate Court, the defendant has filed the present appeal.
9. Mr. Vivek Singh, learned Counsel for the appellant has vehemently argued that the will in question has been proved in accordance with law and the findings given by the first appellate Court regarding the validity of the will and alleged suspicious circumstances are not borne out from the record at all, the findings are unsustainable, therefore, appeal deserves to be allowed. To buttress his argument he has cited 2003 (2) SCC 91, AIR 2000 (10) Orissa and AIR 1971 SC 2236.
10. Contra Sh. K.D. Sood, learned Counsel for the respondent has supported the findings arrived at by the first Appellate Court and according to him there is no substantial question of law involved in this case. The law and facts were correctly applied; therefore, the appeal deserves to be dismissed.
11. I have given my thoughtful consideration to the rival contentions of the learned Counsel for the parties and has judicially scanned the record.
To decide the matter the Additional District Judge had framed two issues one is regarding the will and another whether defendant is the son of the deceased Ram Singh. Both these points have been decided against the defendant but the defendant has confined himself to the issue of validity of the will in this appeal.
12. Legally, the propounder of a will has to prove the due and valid execution of the will, and if there are any surrounding suspicious circumstances the propounder must repel it by adducing cogent and satisfactory evidence. The application of these two general and broad principles, however, depends upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. Therefore, it cannot be put on straight jacket formula. However, the initial burden is always on the propounder to prove due execution, attestation and a sound disposing state of mind of the testator. Any plea of undue influence and/or falsity, forgery has to be sustained by the person who takes up the pleas; whereas, as far as the suspicious circumstances are concerned these are to be approached by the Court in a normal situation as the suspicious circumstances can neither be defined nor exhaustively enumerated. That inevitably would be a question of fact in each case thus no hard and fast rules could be laid. However, for the purpose of valid attestation of the will, Section 63 of the Indian Succession Act makes it imperative that there should be two or more attesting witness who should either sign or affix their thumb mark in the presence and by the direction of the testator or receive from the testator, a formal acknowledgement of his signature or mark or of signatures of such other person and each witness shall sign the will in the presence of the testator etc. The mode of proof of the will is governed by Section 68 of the Indian Evidence Act; whereas the authenticity of a will depends on the circumstances surrounding its execution and quality of evidence that is led in respect of genuiness. Whether a will is genuine or not has to be decided on the facts of each case. There is no mathematical equation to determine its genuiness. Even if the propounder of the will is able to prove the will and if it is surrounded by the suspicious circumstances, in that event it is liable to be ignored. The entire law has been espoused in H. Venkatachala lyengaar v. B.N. Thimmajamma and Ors. , by the Apex Court and holds good even today as is being constantly followed till date.
13. Now, with reference to the above settled legal proposition the statements of DW-3, DW-4 and PWs 1 and 2 are required to be examined and are quite relevant for deciding the Will Ex. D-2 in dispute. Whereas documents Ex.D1 is a deed of marriage alleged to be between Ram Singh and Leela Devi. Ex.D-3 is a certificate issued by the Center Head Teacher regarding date of birth of defendant Sham Singh based upon some record which has not been produced in the Court. Ex.DX is a pedigree table which does not show how and when the name of defendant was shown therein. These documents are not at all relevant for determination of dispute regarding the validity of the will.
14. DW-3 Dharam Singh is the scribe, DW-4 Dharam Chand is a marginal witness. There is also a reference of another marginal witness Chuni Lal, Pradhan Gram Panchayat, who has not been examined. On perusing their statements along with the will there are certain circumstances, which are not explained, which make the document as suspicious, these are as under:
1. Ram Singh (deceased) s/o Jahlu Ram is resident of village Parnallah Mauja Aundh Tehsil Nurpur and he is stated to be residing with the defendant but will is shown to have been executed at Nurpur. Whereas DW-1 Udham Singh has stated in his cross-examination that it was written at the residence of Ram Singh. There is nothing to show, how and why the document gives a reference of Nurpur if he was brought from his village to Nurpur then where this will was prepared and what was the reason to execute the will at Nurpur.
2. Both DW-3 Dharam Singh and DW-4 Dharam Chand are the resident of village Aaundh which is about 1/2 km. away from the house and village of the deceased but no witness from the village of the testator was associated, for that there is no explanation.
3. The testator was aged around 98 years at the time of the will in the year 1985, at the time of the alleged will. This document contains a reference regarding his old age and illness and it is so stated by DW-4 whereas the witness DW-3 has stated that he was in his perfect state of health both these narrations are self contradictory.'
4. Will Ex. D-2 dated 25.8.1985 shows that defendant Sham Singh was residing with Ram Singh testator and was looking after him well, but Sham Singh had taken birth on 9.10.1980 (Ex.D1). Thus the defendant Sham Singh was only 3 or 4 years of age at that time. Who could not have been able to look after himself. To cover-up this part of the story his brother Udham Singh (DW-1) has stated that the testator was residing with his mother who looked after Ram Singh and he made the will in favour of the defendant. Thus both the facts are irreconcilable.
5. There is a thumb impression on the margin of the will which is alleged to be that of Ram Singh but at the end of this first page where the narration was complete neither the witnesses nor the executor had signed or thumb marked it despite ample space, whereas thumb marked is on the margin. Further there is also a variation in size of the thumb on first and second page of the will. For that neither DW-3 nor DW-4 gave any convincing explanation.
6. Further, on the second page of the will there is much gap between the concluding line and the place of alleged thumb impression of Ram Singh and the signatures of the witnesses the full particulars and parentage have also not been indicated. No explanation to this effect had come in the evidence of any of the witness.
7. Admittedly the plaintiff is the daughter's daughter of the testator but there is no reference qua her in the will.
8. DW-3 Dharam Singh is only a scribe and cannot be said to be an attesting witness. Thus the will was sought to be proved by DW-4 an alleged attesting witness. He did not say that the testator admitted its correctness when read over to him. In such a situation it was incumbent on the defendant to explain this fact by examining Sh. Chuni Lal Pradhan, the another attesting witness to prove the essential requirements of Section 63 of the Indian Succession Act.
9. The testator was aged about 98/100 years, he used to sign in Tankri whereas the gift deed Ex.P-5 executed on 25.2.1980 in favour of Udham Singh was signed in Punjabi by him. The reasons for thumb marking is not convincing.
10. Sh. Udham Singh the elder brother of Sham Singh defendant was also present as stated by DWs, when the will was executed but as DW he did not explain as who had desired to execute the will, how the scribe and the witnesses were brought to prepare and witness the episode and at what place it was prepared.
11. There is no reason given to disinherit the sole legal heir i.e. the plaintif.
15. With reference to the above suspicious circumstances if taken together read with the statements of DWs 3 and 4 make the document Ex.D-2 more suspicious and un-convinceable. DW-3 scribe in the end of his cross-examination has stated that son of the sister of the testator had advised to execute the will in favour of Sham Singh. The perusal of statement of DW-4 does not disclose that the testator had personally acknowledged the signatures of Chuni Lal Pradhan who appears to have signed in Urdu just above his stamp nor these signatures were ever put to the scribe or the attesting witness who was examined in the Court.
16. I have perused the case law cited by the learned Counsel for the appellant but it deals with a particular circumstance with reference to the peculiar facts involved in each of the case but in view of the aforesaid irreconcilable facts and suspicious circumstances cumulatively, the will Ex.D-2 cannot be said to be genuine document though the propounder of the will has tried to prove the compliance of Section 63(C) of the Indian Succession Act with the aid of Section 68 of the Evidence Act. Further PWs 1 and 2 have categorically stated that the plaintiff is the only heir of Sh. Ram Singh and will was a forged document. Smt. Leela Devi was widow about 35 years of age and she had already one son Udham Singh (DW1) who was gifted land by Ram Singh deceased vide gift deed Ex.P-5 on 25.2.1980 in it there is no reference of marriage of Leela Devi with Ram Singh. Sham Singh is stated to have taken birth on 2.10.1980. Thus the marriage aforesaid appears to be a cock and bull story.
17. The upshot of the entire discussion is that the suspicious circumstances have not been repelled by the defendant by leading cogent and reliable evidence. Thus, the Will Ex. D-2 is not a valid document.
18. Therefore, on the facts and circumstances of the case, narrated above, in my opinion, the first appellate Court was justified in reversing the findings of the trial Court on the due and valid execution of the will Ex.D-2. Hence, the appeal merits dismissal and is accordingly dismissed. The parties to bear their own costs.