Himachal Pradesh High Court
Champa Devi vs Nand Lal & Others on 10 October, 2023
Author: Satyen Vaidya
Bench: Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 4162of 2013
.
Reserved on : 26.9.2023
Date of decision 10.10.2023.
Champa Devi ...Appellant
Versus
Nand Lal & others ...Respondents
of
Coram:
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
rt
Whether approved for reporting?1Yes.
For the appellant : Mr. R. K. Bawa, Sr. Advocate
with Mr. T. S. Chauhan,
Advocate.
For the respondents : Mr. Bhupender Gupta, Sr.
Advocate with Ms. Rinki
Kashmiri, Advocate.
Satyen Vaidya, Judge:
By way of instant Regular Second Appeal, appellant has assailed judgment and decree dated 27.6.2013, passed by the learned District Judge, Bilaspur, H.P. in Civil Appeal No. 23 of 2012, whereby the judgment and decree dated 30.5.2012, passed by the learned Civil 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 10/10/2023 20:36:12 :::CIS -2-Judge (Senior Division), Bilaspur, District Bilaspur, H.P. in Civil Suit No. 64/1 of 2009 has been reversed.
.
2. Late Sh. Thakur Dass was exclusive owner of land comprised in Khewat No.88, Khatauni No. 106, Khasra Nos. 223, 224 and 227, measuring 11 bighas, situated in Village Jukhala, Tehsil Sadar, District Bilaspur, of H.P. (hereinafter referred to as the 'suit land'). Sh. Thakur Dass had bequeathed the suit land by way of a registered rt Will dated 28.5.2001 in favour of Champa Devi (hereinafter referred to as the 'defendant') wife of late Sh. Budhi Singh.
Sh. Thakur Dass died on 6.3.2009.
3. On 15.6.2009, the son and wife of Sh. Thakur Dass namely Sh. Nand Lal Kaushal and Smt.Dwarku Devi (hereinafter referred to as 'plaintiffs') filed Civil Suit No. 64- 1/09 in the Court of learned Civil Judge (Senior Division) Bilaspur for relief of declaration that the plaintiffs and proforma-defendants (daughters of late Shri Thakur Dass) were owners in possession of the suit land. A decree of permanent prohibitory injunction was also sought against defendant, seeking to restrain her from causing any interference in the ownership and possession of the ::: Downloaded on - 10/10/2023 20:36:12 :::CIS -3- plaintiffs and proforma-defendants over the suit land.
Alternatively, it was prayed that if the plaintiffs were found .
dispossessed during the pendency of the suit in that event, decree of possession be also passed in their favour.
4. The daughters of late Sh. Thakur Dass namely Champa Devi and Urmila Devi and Veena Devi were of arrayed as proforma-defendants in the suit. For the clarity, the parties hereinafter shall be referred to by the rt same status, as they held before the learned trial Court.
5. In the plaint, the plaintiffs had simply averred that the suit land after the death of Sh. Thakur Dass had been jointly inherited by the plaintiffs and proforma-
defendants in equal shares. The defendant was stranger to the suit land and for the reason best known to her, defendant was trying to interfere in the rights of the plaintiffs and proforma-defendants over the suit land after the death of Sh. Thakur Dass.
6. The defendant contested the suit by setting up a Will of late Sh. Thakur Dass in her favour. As per defendant, late Sh. Thakur Dass had executed a registered Will in her favour whereby the suit land had exclusively ::: Downloaded on - 10/10/2023 20:36:12 :::CIS -4- been bequeathed to her in lieu of her services. Sh. Thakur Dass had put the defendant in possession of the suit land .
during his life time and in exercise of such right, defendant had claimed ownership and possession over the suit land.
7. By way of replication to the written statement, plaintiffs alleged that since the defendant was a stranger to of Sh. Thakur Dass there was no occasion for Sh. Thakur Dass to execute the Will in her favour.
rt It was further submitted that the plaintiffs had been serving Sh. Thakur Dass during his life time. Defendant had not clarified as to what kind of services she had rendered to Sh. Thakur Dass. A pertinent plea raised by the plaintiffs in replication is being noted here as under:-
"If any immoral service has been rendered by Champa Devi in the said process no Will can be executed being against public policy, as plaintiffs have pre-existing right over the suit land"
8. On the basis of pleadings of the parties, the learned trial Court framed the following issues:-
"1. Whether the plaintiffs and proforma defendants are joint owner in possession of the estate of Thakur Dass as alleged? OPP ::: Downloaded on - 10/10/2023 20:36:12 :::CIS -5-
2. Whether the plaintiffs are entitled for the relief of permanent prohibitory injunction as prayed for? OPP .
3. Whether the defendants No.1 is sole owner in possession of the estate of Thakur Das son the basis of registered Will dated 28.5.2001 as alleged? OPD
4. Whether the plaintiffs are stopped from filing the present suit by their own acts and conducts as of alleged? OPD
5. Whether the suit of the plaintiff is not maintainable as alleged? OPD
6. rt Relief."
Issue No.1 was partially answered in affirmative.
Issues No. 3 and 5 were also answered in affirmative and the suit of the plaintiffs was dismissed. The Will dated 28.5.2001 of Sh. Thakur Dass was held to be a legal and valid document. The defendant was held in possession of the suit land.
9. Plaintiffs filed appeal under Section 96 of the Code of Civil Procedure against the judgment and decree passed by the learned trial Court. Learned First Appellate Court vide impugned judgment and decree has reversed the findings of learned trial Court by holding that the defendant had failed to remove suspicious circumstances ::: Downloaded on - 10/10/2023 20:36:12 :::CIS -6- surrounding the Will and for such reason, the Will cannot be said to be a legal and valid document.
.
10. Aggrieved against the impugned judgment and decree passed by learned First Appellate Court, defendant has approached this Court by way of the instant appeal.
11. On 2.9.2013, the appeal was admitted on of following substantial questions of law: -
"Whether the Court below was correct in discarding Will rt Ext. DW2/A which was the foundation of the claim of the appellant?"
12. I have heard the learned counsel for the parties and have also gone through the record carefully.
13. The impugned judgment and decree has been challenged on the ground that it was perverse on account of having failed to consider material evidence on record.
Another ground on which challenge has been made to the impugned judgment and decree is that the learned First Appellate Court had no occasion to reverse the findings returned by the learned trial Court, especially after having affirmed the findings regarding due execution of the Will.
::: Downloaded on - 10/10/2023 20:36:12 :::CIS -7-14. On the other hand, the impugned judgment and decree has been supported on behalf of the plaintiffs. It .
has been submitted that the defendant was not related to Sh. Thakur Dass and further in absence of any proof of the nature of services rendered by the defendant to Sh. Thakur Dass, the learned First Appellate Court was absolutely of justified in holding that the Will was surrounding by suspicious circumstance and the propounder had failed to rt remove such suspicious.
15. Indubitably, both the courts below have concurrently found the execution of Will dated 28.5.2001 to have been proved in accordance with law. The provisions of Section 63 of Indian Succession Act and Section 68 of Indian Evidence Act have been found to have been duly complied with. In view of such concurrent findings, it cannot be said that the Will was not executed by late Sh. Thakur Dass.
16. Now the question arises whether Will dated 28.5.2001 of Sh. Thakur Dass was result of his free volition and consent or the same was executed under some notion or influence incompatible with his free will.
::: Downloaded on - 10/10/2023 20:36:12 :::CIS -8-17. It is well settled proposition that even if the execution of Will is duly proved, the same cannot be given .
effect if it is surrounded by any suspicious circumstance and such circumstance remains unremoved. In the instant case the fact that the defendant was not related to the testator became a source of suspicion. Further, of plaintiffs also stressed that the defendant had failed to prove rendering of any services to the testator which could rt have weighed with the testator to make a bequeath in her favour. So, what germinated the suspicion was the question, why the testator would bequeath substantial immovable property in favour of a stranger by ignoring his close family members?
18. Both the learned courts below after considered above circumstance arrived at their own conclusions.
While learned trial Court on analysis of the evidence found it to be not of such enormity, which might vitiate the disposition. The learned First Appellate Court found it to be suspicious enough to discard the bequeath.
19. Learned First Appellate court found that the defendant had failed to prove her affinity to late Sh.
::: Downloaded on - 10/10/2023 20:36:12 :::CIS -9-Thakur Dass. It also found that defendant had admitted to have remained out of village Jukhala for considerable .
period of time with her husband at places of his postings.
On such count, an impression was entertained that in absence of defendant from village Jukhala, what kind of services could have been rendered by her, which prevailed of upon Sh. Thakur Dass to have bequeathed his property in favour of a stranger.
rt
20. Whether the view perceived by learned first appellate court is a plausible one on the basis of entire material on record is the question for consideration in this appeal?
21. At the very outset Shri Bhupender Gupta learned Senior Advocate representing respondents/ plaintiffs alerted the court about its limited jurisdiction under Section 100 of the Code. He placed reliance on Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722 which commanded that in a second appeal under Section 100 CPC, the High Court cannot substitute its own opinion for that of the first appellate ::: Downloaded on - 10/10/2023 20:36:12 :::CIS -10- court, unless it finds that the conclusions drawn by the lower court were erroneous being:
.
(i) Contrary to the mandatory provisions of the applicable law;
OR
(ii) Contrary to the law as pronounced by the Apex Court;
OR of
(iii) Based on inadmissible evidence or no evidence.
22. rt In Kondiba supra Hon'ble supreme Court had further observed that that if the first appellate court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in second appeal. It is further observed that the trial court could have decided differently is not a question of law justifying interference in second appeal.
23. No doubt Section 100 of the Code vests this Court with limited jurisdiction to consider only substantial questions of law that too with the caveat not to interfere with findings of facts recorded either concurrently by the courts below or by the first appellate court. However, this cannot be said to be an absolute proposition. This Court ::: Downloaded on - 10/10/2023 20:36:12 :::CIS -11- under section 100 can still interfere with the reasoning arrived at by lower appellate court in case it is found to .
have been based either on no evidence or in ignorance of material facts proved on record or being so perverse that with ordinary prudence no one would arrive at such conclusion. In Neelakantan v. Mallika Begum, (2002) 2 of SCC 440 Hon'ble Supreme Court observed: "It is well settled that the High Court while considering the matter in rt exercise of its jurisdiction in second appeal or civil revision would not reverse the finding of fact as recorded by the courts below. But it is not an absolute proposition. In a case where the finding is recorded without any legal evidence on the record, or on misreading of evidence or suffers from any legal infirmity, which materially prejudices the case of one of the parties or the finding is perverse, it would be open for the High Court to set aside such a finding and to take a different view".
24. Keeping in view the above window I proceed to examine the various aspects of the matter in light of substantial question of law as noticed above.
::: Downloaded on - 10/10/2023 20:36:12 :::CIS -12-25. The general principles relating to proof of a Will have very succinctly been summarized by Hon'ble Supreme .
Court in Sushila Devi v. Pandit Krishna Kumar Missir, (1971) 3 SCC 146 as under:
"5. Prima facie, the circumstance that no bequest was made to the appellant by the testator would of make the will appear unnatural but if the execution of the will is satisfactorily proved, the fact that the testator had not bequeathed any property to one of rt his children cannot make the will invalid. If the bequest made in a will appears to be unnatural then the Court has to scrutinise the evidence in support of the execution of the will with a greater degree of care than usual, because every person must be presumed to act in accordance with the normal human behaviour but there is no gainsaying the fact that some individuals do behave in an abnormal manner. Judges cannot impose their own standard of behaviour on those who execute wills. As observed by this Court in M. Venkatachala Iyengar v. B.N. Thimmajamma AIR 1959 SC 443 that 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 by Section 63 of the Indian Succession Act. Proof in either case cannot be mathematically precise and certain and so the test should be one of satisfaction of a prudent mind in such matters. The onus must be on the propounder and in absence of suspicious circumstances surrounding the execution ::: Downloaded on - 10/10/2023 20:36:12 :::CIS -13- of the will, proof of testamentary capacity and signature of the testator as required by law may be sufficient to discharge the onus. Where, however, .
there are suspicious circumstances the onus would be on the propounder to explain them to the satisfaction of the Court before the will can be accepted as genuine".
26. What had weighed with learned First Appellate of Court was that neither the defendant was related to the testator nor it had been proved that she had been rt rendering such services to the testator which could have impressed upon him to bequeath his property in favour of the defendant even at the cost of his close family members.
However, another clearly glaring facet of the matter has totally been missed by learned First Appellate Court. The suspicion was entertained because the natural heirs of the testator were found disinherited. Had there been no natural heir surviving the testator such type of suspicion might not have even germinated. It had been proved on record that late Sh. Thakur Dass was not ordinarily residing with his son and wife. He was residing in a small house constructed on the suit land. It has also been proved on record that this arrangement was continuing for ::: Downloaded on - 10/10/2023 20:36:12 :::CIS -14- many years. Another fact which is not in dispute is that some portion of the property owned by Sh. Thakur Dass .
was purchased by plaintiff No.1 against consideration. A plot of land had already been gifted by Sh. Thakur Dass to one of his daughters. In this backdrop, one thing clearly emerged that the relations between Sh. Thakur Dass and of his family members were not absolutely normal. The plaintiffs had not explained as to why Sh. Thakur Dass rt was residing separately. There also is no explanation as to why the transaction of sale inter-se father and son had taken place in respect of property which was stated to be ancestral. In Mahesh Kumar v. Vinod Kumar, (2012) 4 SCC 387 in somewhat similar facts Hon'ble Supreme Court has observed as under:
48. The fact that the appellant was present at the time of execution of the will dated 10-2-1992 and that the testator did not give anything to Respondents 1 and 2 from his share in the joint family property are not decisive of the issue relating to genuineness or validity of the will.
The evidence produced by the parties unmistakably shows that Respondent 2 had separated from the family in 1965 after taking his share and Respondent 1 also got his share in the second partition which took place in 1985. Neither of them bothered to look after the parents in their old age.
::: Downloaded on - 10/10/2023 20:36:12 :::CIS -15-49. The attitude of Respondents 1 and 2 left Shri Harishankar and his wife with no choice but to live with the appellant, who along with his wife and children took .
care of the old parents and looked after them during their illness. Therefore, there was nothing unnatural or unusual in the decision of Shri Harishankar to give his share in the joint family property to the appellant. Any person of ordinary prudence would have adopted the same course and would not have given anything to the ungrateful of children from his/her share in the property.
27. rt In my considered view, the factum of estranged relationship between Sh. Thakur Dass and his family members had to be viewed in juxtaposition to the factum of the affinity, irrespective of its degree, that had developed between defendant and Sh. Thakur Dass. The human behavior cannot have a uniform pattern. Sh. Thakur Dass was not being happy or satisfied with the conduct of his family members may have warranted their disinheritance.
His choice on defendant cannot be questioned only for the reason that ample proof as to the degree of affinity was not there.
28. In Savithri v. Karthyayani Amma, (2007) 11 SCC 621 Hon'ble Supreme Court observed as under:
::: Downloaded on - 10/10/2023 20:36:12 :::CIS -16-"22. Deprivation of a due share to the natural heirs itself is not a factor which would lead to the conclusion that there exist suspicious circumstances. For the said .
purpose, as noticed hereinbefore, the background facts should also be taken into consideration. The son was not meeting his father. He had not been attending to him. He was not even meeting the expenses for his treatment from 1959, when he lost his job till his death in 1978. The testator was living with his sister and her children. If in of that situation, if he executed a will in their favour, no exception thereto can be taken. Even then, something was left for the appellant".
rt
29. The above circumstance gains importance in light of the fact that the execution of the Will has been held to be duly proved. It was a registered document. The testator was in best of his health and also was in sound disposing mind at the time of its execution. That being so, when he had choice of picking his successor to the property, the scale weighed in favour of the defendant and on such choice of wisdom, the Will cannot be said to be vitiated. The learned First Appellate Court has also not considered the fact that after execution of the Will Sh.
Thakur Dass remained alive for about eight years. It is nobody's case that during this period, he had lost his physical or mental faculties. The evidence suggests that he ::: Downloaded on - 10/10/2023 20:36:12 :::CIS -17- was hale and hearty till he breathed his last. In such circumstances, it can clearly be inferred that Sh. Thakur .
Dass had ample opportunity to review his decision, which he did not.
30. Learned First Appellate Court had also suspected the genuineness of the Will by taking another of circumstance that the defendant had not been taking care of Sh. Thakur Dass, rather she had obtained a loan on rt false pretext in the name of Sh. Thakur Dass. The view so taken by the learned First Appellate Court does not blend well with all other proved circumstances. Rather, the factum that Sh. Thakur Dass had allowed the loan taken in his name to be used by the defendant itself suggests that he had enormous faith in her. The reasons for such faith are not to be searched by the Court. Again, reverting back to the fact that Sh. Thakur Dass was hale and hearty till his last, he had every opportunity to question the conduct of the defendant in procuring the loan and utilizing the same but he did not.
31. Another fact which cannot be ignored is that in the Will itself Sh. Thakur Dass had made mention of his ::: Downloaded on - 10/10/2023 20:36:12 :::CIS -18- strained relation with his family. Once the contents of the document have been proved to be genuine, they become .
relevant under Section 32 of the Evidence Act. No material has been brought on record by the plaintiffs to discard the contents of the document i.e. Will dated 28.5.2001.
32. In view of above discussions, the appeal of deserves to be allowed. The substantial question of law is answered in negative.
rt The judgment and decree dated 27.6.2013, passed by the learned District Judge, Bilaspur, H.P. in Civil Appeal No. 23 of 2012 is set aside and the judgment and decree dated 30.5.2012, passed by the learned Civil Judge (Senior Division), Bilaspur, District Bilaspur, H.P. in Civil Suit No. 64/1 of 2009 is affirmed.
Decree sheet be prepared accordingly. Record be sent back forthwith. Pending applications, if any, also stand disposed of.
(Satyen Vaidya)
10th October, 2023 Judge
(kck)
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