Himachal Pradesh High Court
Suman Chopra vs Brij Mohan & Ors on 9 August, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 569 of 2006.
Reserved on : 04/7/2016
.
Date of Decision: 9.8.2016
______________________________ _________________________
[
Suman Chopra .........Appellant.
Versus
Brij Mohan & Ors. .......Respondents.
of
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes
For the appellant:
rt Mr. G.D. Verma, Senior Advocate with Mr.
B.C. Verma, Advocate.
For the respondents: Mr. K.D. Sood, Senior Advocate, with Mr.
Rajnish K. Lall, Advocate, for respondents
No. 2 to 5, 8 and 9.
Mr. Surinder Saklani, Advocate, for
proposed LRs of respondent No.6.
_________________________________________________________
Sandeep Sharma, J.
Present regular second appeal filed under Section 100 of CPC is directed against the judgment and decree dated 1.11.2006, passed by the learned District Judge, Mandi, HP, in Civil Appeal No. 39 of 2005, affirming the judgment and decree dated 7.3.2005, passed by learned Civil Judge (Junior Division), Jogindernagar, District Mandi, H.P. in Civil Suit No. 72 of 1998, Whether reporters of the Local papers are allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:59:50 :::HCHP -2-whereby the suit filed by the appellant-plaintiff for partition under Section 41 of Indian Partition Act has been dismissed.
.
2. The key facts as emerge from the pleadings/records are that appellant-plaintiff (hereinafter referred to as the plaintiff) instituted a suit for partition under Section 4 of the Indian Partition Act averring therein that land comprised of khata khatauni No. of 24/63 khasra No 1197 and 1198 measuring 741.08 square meters, khata khatauni Nos. 1197/1, 1199/1200 and 1201 measuring 859.03 rt sq.meter and khata khatauni No.25/65 khasra No. 2652/718, measuring 138/02 sq. meters situated at Jogindernagar , H.B. 396, Ilaqua Jeetpur, Tehsil Jogindernagar, District Mandi, HP (in short suit property) was previously jointly owned in possessed by S/Shri Mangat Ram, Roshan Lal Puri and Prakash Chand defendant No. 7 to the extent of 1/3rd share each. As per averments contained in the plaint filed by the present appellant/plaintiff, after the expiry of Mangat Ram, his 1/3rd Share was inherited by defendant Nos. 1 to 6 being sons and daughters and widow, whereas Roshan Lal died leaving behind the appellant/plaintiff and proforma defendants No. 9 and 10 and they being LRs of Roshan Lal succeeded to his 1/3rd share. Plaintiff also claimed that property as mentioned above is still ::: Downloaded on - 15/04/2017 20:59:50 :::HCHP -3- joint and un-partitioned and all the parties are jointly enjoying and possessing the same. As per averments contained in the plaint, .
plaintiff claimed that share of defendants No. 1 to 6 out of suit land is 1/3rd and that of defendant No. 7 is also 1/3rd. It is also averred in plaint that plaintiff and proforma defendants have 1/3rd share, whereas in the property, defendants No. 1 to 6 have 1/4th share, of defendants No.7, plaintiff and proforma respondents have also1/4th share, which is duly effected/reflected in jamabandi annexed with the plaint.
rt The plaintiff specifically averred in the plaint that property comprised in khata khatauni No. 24/64 khasra Nos. 197/1, 1199, 1200 and 1201 measuring 859.03 sq.meters is recorded under the ownership of her father namely late Sh. Roshan Lal Purti, defendant No. 7, defendants No. 1 to 6 and one Mr. Nazam Din, Jalhe, Bhadar, Mehtab Din, sons of Bhekhu Momammadans as occupancy tenants and in possession of the owners. The plaintiff claimed that these persons have migrated from Pakistan somewhere in 1949-50 and since then property is in the possession of the owners. Description of the property given in the plaint suggests that whole property is situated within the limits of Municipal Committee, Jogindernagar, District Mandi, HP. The plaintiff by way ::: Downloaded on - 15/04/2017 20:59:50 :::HCHP -4- of suit referred herein above, claimed that the property is still joint and un-partitioned and some co-sharers are in joint enjoyment of .
the possession in excess of their recorded share. Plaintiff repeatedly requested the defendants to get the share separated but in vain, hence, she was compelled to file present suit for partition under Section 4 of Indian Partition Act.
of
3. Defendants No. 1 to 6, 9 and 10 filed joint written statement, specifically taking therein preliminary objection qua the rt maintainability, locus standi and mis-joinder of necessary parties etc. Defendants specifically alleged that plaintiff is not co-sharer in the joint possession over the suit property and as such, she cannot be allowed to institute/maintain the present suit claiming partition of the property by meets and bonds. Defendants specifically stated in the written statement that late Roshan Lal predecessor-in-interest of plaintiff and defendants No. 9 and 10 executed a Will of his entire share in the suit property in favour of his daughter defendant No.10 namely Geetika Puri on 6.9.1996. Mangat Ram, Parkash Chand and Roshan Lal got separated their share in the suit property in the year, 1970. Defendants also claimed that house was also partitioned by meets and bonds, wherein four rooms fell in the share of each of the ::: Downloaded on - 15/04/2017 20:59:50 :::HCHP -5- aforesaid three persons. Defendants claimed that property was partitioned by way of family partition. Defendants No. 1 to 6 and 9 .
& 10 specifically stated that share of late Roshan Lal is in possession of defendant No. 10, who is his sole successor-in-interest. Similarly, defendant Nos. 1 to 6 claimed that they are in possession of their share as far as suit property i.e. Khata khatauni No. 25/65 khasra No. of 2652/718 measuring 138.02 sq.meters is concerned, same was in possession of Mangat Ram Puri predecessor-in-interest of rt defendants No. 1 to 6 along with his father Babu Ram and after the death of Babu Ram in the year, 1982 Mangat entered into its possession. It is also stated in the written statement that litigation pertaining to partition of suit property was also contested by the Mangat Ram Puri against the State of Himachal Pradesh, whereas defendants No. 1 to 6 claimed to have become owner of the suit property on the basis of adverse possession. Defendants specifically averred that Will has duly been executed by Roshan Lal in favour of defendant No. 10, who was hale and hearty and was not suffering from any mental incapability or ill health at the time of execution of will. The aforesaid defendants also stated that Roshan Lal was having sound health except a mild stroke of paralysis which he had ::: Downloaded on - 15/04/2017 20:59:50 :::HCHP -6- suffered few years back. Defendants have also stated that Roshan Lal was a dedicated person and used to perform his every work of .
his daily routine. Similarly, defendants No. 7 and 8 filed separate written statement, wherein they admitted the claim of the plaintiff and stated that, it would be in the interest of parties, if the suit property is partitioned by meets and bonds. Records further of suggests that plaintiff filed replication to the written statement filed by defendants No. 1 to 6, 9 and 10 refuting the averments rt contained in the written statement, while re-asserting the averments made in the plaint. The Learned Court below on the basis of pleadings of the parties framed following issues:-
1. Whether the plaintiff alongwith proforma defendant Nos. 9 and 10 are joint owners in possession of 1/3 share of the suit property described in para No. 1 (a) and 1 (b) of the plaint as alleged? OPP.
2. Whether the plaintiff and proforma defendants have ¼ share in the property described in para No. 1 (C) of the plaint as alleged? OPP.
3. Whether the plaintiff is entitled for relief of partition as alleged? OPP
4. Whether the suit is not maintainable?OPD.
5. Whether the deceased Roshan Lal has executed a valid Will in favour of the defendant No. 10 qua his ::: Downloaded on - 15/04/2017 20:59:50 :::HCHP -7- share in the suit property as alleged? If so, its effect?OPD.
6. Whether the plaintiff is estopped by her act and .
conduct to file the suit?OPD.
7. Whether the plaintiff has no locus-standi to file the suit?
8. Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD.
9. Whether the suit is not bad for partial partition as of alleged in preliminary objection No.6 of the written statement filed by the defendant ? If so, its effect?OPD.
rt
10. Whether the suit property detailed in para No. 1(a) and 1 (b) was separated by your family partition as alleged? If so, its effect? OPD.
11. Whether the defendant No.1 to 6 have become owners of the property as detailed in para No.1 (c) of the plaint by way of adverse possession? OPD.
12. Relief.
4. The learned trial Court on the basis of pleadings as well as evidence adduced on record by the parties, rejected/dismissed the suit of the appellant/plaintiff by concluding that Will Ext.DW2/A was executed by deceased Roshan Lal in favour of defendant No. 10 in sound and disposing mind on 6.9.1996 and as such, claim put forth by the plaintiff for partition cannot be accepted. Learned trial Court also concluded that since it stands proved that deceased ::: Downloaded on - 15/04/2017 20:59:50 :::HCHP -8- Roshan Lal had executed a Will, bequeathing his share in suit property/estate in favour of defendant No. 10 and plaintiff is not .
entitled for the partition of the suit property.
5. Feeling aggrieved and dissatisfied with the judgment dated 7.3.2005 passed b the learned trial Court in CS No. 72 of 1998, appellant/plaintiff filed an appeal under Section 96 CPC read with of section 21 of HP Courts Act, 1976 in the Court of learned District Judge, Mandi. The learned District Judge, Mandi, while upholding rt the judgment of trial Court, vide judgment dated 1st November, 2006, dismissed the Civil Appeal No. 39/2005 filed on behalf of appellant/plaintiff. Hence, the present regular second appeal by the appellant/plaintiff before this Court.
6. This court vide order dated 25.5.2009, admitted the instant appeal on following substantial questions of law No.1 and 3:-
"1. Whether the Will allegedly executed by the deceased Shri Roshan Lal Puri is not proved and liable to be ignored on the ground that the propounder of the Will had failed to examine the Advocate who had drafted the Will on the alleged instructions of the Testator of the Will and the non-examination of the Sub-Registrar before whom the Will is stated to have been presented for registration is fatal to the case of the propounder of the Will?::: Downloaded on - 15/04/2017 20:59:50 :::HCHP -9-
3. Whether the learned first appellate Court below has erred by ignoring the admission of the propoudner that the Testator was used to be kept in the premises under .
lock and key during his last days and that fact itself is pointer to the fact that the Testator was not in a fit and sound state of mind at the time of the alleged execution of the Will?"
7. Though, complete narration of the facts narrated herein of above suggests that appellant/plaintiff had filed suit for partition of the property jointly owned by the plaintiff as well as defendants but rt dispute, in the present case, revolves around the execution of Will dated 11.5.2004, which was allegedly executed in favour of defendant No. 10 to the exclusion of the plaintiff (daughter of the testator late Sh. Roshan Lal Puri). Since the instant appeal stands admitted on the substantial questions of law as referred above, this Court while answering substantial questions (supra) would be considering the evidence adduced on record by the parties to the lis with a view to reach just and fair conclusion and to ascertain the correctness and genuineness of the findings returned by the both the courts below, that defendant No.10 is entitled to succeed the property of decased testator Roshan Lal Puri on the basis of Will and the same is based upon the correct appreciation of the evidence available on record.
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8. Plaintiff instituted a suit for partition of the property under Indian Partition Act qua the property, description whereof has .
already been given above, allegedly owned and jointly possessed by the plaintiff and defendants. But defendants No. 1 to 6, 9 and 10 while disputing the averments contained in the plaint filed by plaintiff, specifically raised the plea of execution of Will in favour of of defendant No.10 and the learned trial Court on the basis of evidence available on record concluded that late Roshan Lal had rt validly executed Will in favour of defendant No. 10 bequeathing his share in the suit property in her favour.
9. In the present case, since learned courts below have non-suited the plaintiff by concluding that defendant No.10 has been able to prove that deceased Roshan Lal had executed Will on 6.9.1996 in sound and disposing state of mind bequeathing his share in the suit property in her favour and as such, plaintiff is not entitled for the partition of the suit property, this Court would be restricting itself to findings returned by the courts below qua the issue of genuineness/correctness of the alleged Will "whether the same is shrouded by the suspicious circumstances or not?"
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10. Plaintiff specifically alleged that late Roshan lal was suffering from mental incapability due to ill health and he was .
incapable of understanding and as such, he was not competent/capable to execute or scribe any Will, whereas defendants referred above, claimed that executant died on 8th June, 1997 and before his death, he executed Will in favour of of defendant No. 10 bequeathing his share in the property in her favour.
11. rt Needless to say that law regarding nature and onus of proof of the will is by way of propounder and in that regard the manner in which evidence is required to be appreciated has been duly prescribed in the judgment passed by the Hon'ble Apex Court in H.Venkatachala Iyengar vs. B.N. Thimmajamma and others, AIR 1959 SC 443.
12. Guidelines framed in H.Venkatachala Iyengar case (supra) were further reiterated by Constitutional Bench of Hon'ble Apex Court in Shashi Kumar Banerjee and Others vs. Subodh Kumar Banerjee since deceased and after him his legal representatives and others, AIR 1964 SC 529. The Court held:
"4. The principles which govern the proving of a will are well settled; (see H. Venkatachala Iyengar v. B. N. ::: Downloaded on - 15/04/2017 20:59:50 :::HCHP
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Thimmajamma, 1959 (S1) SCR 426 : 1959 AIR(SC) 443) and Rani Purniama Devi v. Khagendra Narayan Dev, 1962 (3) SCR 195 : 1962 AIR(SC) 567). The mode of proving a will .
does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S. 63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, of proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. rt Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no. such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indication in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the ::: Downloaded on - 15/04/2017 20:59:50 :::HCHP
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execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the .
doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. It is in the light of these settled principles that we have to consider whether the of appellants have succeeded in establishing that the will was duly executed and attested.
rt (Page-531)
13. Careful perusal of the guidelines framed in H.
Venkatachala Iyengar vs. B.N. Thimmaramma and others, AIR 1959 SC 443 case, which were further reiterated by Constitutional Bench of Hon'ble Apex Court in Shashi Kumar Banerjee and others. Vs. Subodh Kumar Banerjee, clearly suggests that allegation qua the will surrounded by suspicious circumstances is always to be dispelled by the propounder and similarly, the onus of proving the will is always on the propounder and law requires him/her to dispel the notion that will is not surrounded by suspicion and the same has been validly executed in terms of Section 63 of the Indian Succession Act.
Judgments (supra) also suggest that propounder is always under ::: Downloaded on - 15/04/2017 20:59:50 :::HCHP
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obligation to prove that Will is free from all suspicion and he/she must satisfy the court that Will is not result of fraud, undue influence .
and same has been executed by the executant with the sound disposing mind. Since the Will is one of the most solemn documents known to the law, it is, therefore, essential that trustworthy and convincing evidence is led on record by the propounder of the Will of to establish the genuineness and correctness of the Will. It is also well settled that factum of execution and validity of Will cannot be rt solely determined on the basis of evidence adduced on record by the propounder but in that regard, court needs to consider the circumstances emerging in the evidence as well as nature and contents of the document. It is also well settled that where the execution of Will is surrounded by suspicious circumstances, the suspicion, if any, cannot be solely removed by making assertion that same was executed by the testator with free Will and with sound disposing mind, rather, propounder must lead cogent and convincing evidence to the satisfaction of the Court that Will in question was executed by the testator/testatrix without there being undue influence upon him.::: Downloaded on - 15/04/2017 20:59:50 :::HCHP
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14. No doubt, as has been held in judgments ibid, onus to explain the suspicious circumstances, if any, lies on propounder but .
onus shifts to person, who alleges/levels allegations of undue influence/fraud or coercion on the propounder of the Will and it is also well settled that as to what are suspicious circumstances, are required to be judged in facts and circumstances of the case of
15. In Shridevi and Others vs. Jayaraja Shetty and Others,(2005)2 SCC 784, the Hon'ble Apex Court held:-
"11.
rt It is well settled proposition of law that mode of proving the will does not differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63 of the Indian Succession Act, 1925. The onus to prove the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and proof of the signature of the testator, as required by law, need be sufficient to discharge the onus. Where there are suspicious circumstances, the onus would again be on the propounder to explain them to the satisfaction of the court before the will can be accepted as genuine. Proof in either case cannot be mathematically precise and certain and should be one of satisfaction of a prudent mind in such matters. In case the person contesting the will alleges undue influence, fraud or coercion, the onus will be on him to prove the same. As to what are ::: Downloaded on - 15/04/2017 20:59:50 :::HCHP
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suspicious circumstances have to be judged in the facts and circumstances of each particular case. { For this see H. Venkatachala Iyengar v. B.N. Thimmajamma & Ors.
.
[(1959) Supp.1 SCR 426] and the subsequent judgments Ramachandra Rambux v. Champabai & Ors.[(1964) 6 SCR 814]; Surendra Pal & Ors. v. Dr. (Mrs.) Saraswati Arora & Anr. [(1974) 2 SCC 600]; Smt. Jaswant Kaur v. Smt. Amrit Kaur & Ors. [(1977) 1 SCC 369]; and Meenakshiammal (Dead) thr. LRs. & Ors. v. Chandrasekaran & Anr. [(2005) 1 of SCC 280]".
16. Mr. G.D. Verma, Senior Advocate duly assisted by Mr. rt B.C. Verma, Advocate, for the appellant/plaintiff vehemently argued that the judgments passed by both the courts below deserve to be quashed and set-aside since same are not based on the correct appreciation of evidence on record as well as law. It is contended on behalf of the plaintiff that material made available on record, be it ocular or documentary, clearly suggests that Will is shrouded by suspicious circumstances and cannot be given effect to, being vague and forged document. Mr. Verma, contended that in the present case, plaintiff by leading cogent and convincing evidence successfully proved that Will was not genuine document actually executed by deceased Roshan Lal Puri. He strenuously argued that rather, defendants miserably failed to prove that Will is ::: Downloaded on - 15/04/2017 20:59:50 :::HCHP
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genuine and actually executed by the deceased Roshan Lall in sound disposing state of mind and as such, no reliance could be .
placed on the same. During arguments having been made by Mr. Verma, he made this Court to travel through the statements made by the plaintiff witnesses as well as defendant witnesses to demonstrate that Will is not a genuine document, rather, same is the of result of fraud and undue influence exercised upon the testator at the time of scribing of aforesaid Will. Mr. Verma while advancing his rt arguments also invited attention of this Court to the various grounds taken by him in this appeal to substantiate his submissions but same are not being stated here for the sake of brevity.
17. Per contra, Mr. K.D. Sood, Senior Advocate duly assisted by Mr. Rajnish K. Lall, Advocate, appearing on behalf of respondents No. 2 to 5, 8 &9 supported the judgments passed by the courts below. They forcefully argued that no interference, whatsoever, of this Court is warranted in the present facts and circumstances where it stands duly proved on record that judgment passed by both the courts below are based upon the correct appreciation of evidence adduced by the defendants on record. He contended that Will was duly executed by the ::: Downloaded on - 15/04/2017 20:59:50 :::HCHP
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deceased Roshan Lal Puri in favour of defendant No. 10 in sound and disposing state of mind. Mr. Sood with a view to substantiate his .
arguments also made this Court to peruse the statements given by defendant witnesses as well as documents placed on record and stated that Will is genuine document executed by deceased Roshan Lal Puri. Mr. Sood forcefully contended that bare perusal of of the statements given by PWs 1 and 2, nowhere suggests that deceased Roshan Lal Puri was not in sound disposing state of mind rt and as such, courts below, while dismissing the suit preferred by the plaintiff, rightly concluded that Roshan Lal Puri was in sound disposing state of mind. Mr. Sood contended that plaintiff has miserably failed to place on record any document suggestive of the fact that Will was got executed forcibly by the plaintiff using force and undue influence.
18. I have heard learned counsel for the parties as well carefully gone through the record
19. In the aforesaid background, now this Court proceeds to examine the evidence adduced on record by both the parties to the lis. In the present case, plaintiff with a view to prove its case examined himself as PW1 and stated that she has succeeded to the ::: Downloaded on - 15/04/2017 20:59:50 :::HCHP
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estate of Roshan Lal being his daughter and as such, is entitled for partition. She also stated that defendant No. 10 is her real sister.
.
PW1 while deposing before the learned trial Court made certain depositions with regard to description of property allegedly jointly possessed by the plaintiffs and defendants, which need not to be dealt with at this stage while examining that "whether Will is of shrouded by suspicion or not." PW1 in her statement categorically stated that his father suffered paralysis due to brain clotting while he rt was in service and for that, he remained under treatment for almost one and half year and thereafter, he came to Dharamshala. She stated that at Dharamshala, her father stayed with her mother and sister. She also stated that father was taking treatment from Sehgal Nursing Home. She also stated that doctor had told that there can be danger in case, brain is operated. She categorically stated that since mental condition of her father was serious, he was brought to Hospital in Dharamshala. It has also come in her statement that he could not walk and eat. She also stated that her father died on 8th June, 1997 and he was ill and bed-ridden. She also stated that her father used to run away and as such, used to be kept under lock.
She also stated that since 1995, her father was bed ridden and used ::: Downloaded on - 15/04/2017 20:59:50 :::HCHP
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to work on bed. She also stated that her father sometimes used to understand and sometimes not. She also stated that alleged Will is .
a forged document and his father could not sign. She denied signature of her father on the Will. She also stated that she does not know the marginal witnesses and they never used to come to her house. She also stated that after marriage, she sued to visit her of father but he never disclosed any fact to her qua the execution of Will. She also stated that her maternal uncle Sh. Vinay Malhotra rt used to visit father in Dharamshala oftenly. In her cross-examination, she admitted that there is no mention of record of Sehgal Nursing Home from where his father used to take treatment but self stated that the same is with her elder sister. In her cross-examination, she also stated that she along with her elder sister remained at Delhi for 2-3 months during the treatment of her father. She also admitted that her marriage was solemnized in 1992, whereas of elder sister's in 1991. She also stated that she used to visit Dharamshala during vacation. She also admitted that her father expired in Noida at the house of her elder sister namely Sangita. She stated that when she reached Noida, final rites of her father were over and she stayed there with husband for 2-3 days. She also stated that after death of ::: Downloaded on - 15/04/2017 20:59:50 :::HCHP
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father, she along with her daughter had gone to Haridwar for performing last rites of father. She also stated that rites were .
performed by her husband. She denied the suggestion that her maternal uncle Vinay Malhtora did not have cordial relations with her parents due to property dispute. She also stated in her cross-
examination that her father used to append signatures before of illness, though, she has not placed admitted signatures of her father on record. She also denied the suggestion that mental condition of rt father was good. She also denied the suggestion that father used to perform his daily work of his own. She categorically denied the suggestion that father used to walk with the help of a stick and he was keeping good health till death. She also denied the suggestion that marginal witnesses resides in house adjacent to the house of her father. She also denied that the parents had given some dowry at the time of her marriage. She also denied that since Geetika defendant No.9 was unmarried, her father of his own bequeathed his property in her favour. She categorically denied that Will bears the signatures of her father and he had executed the Will in sound disposing mind in the office of Sub-Registrar.
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20. PW2, Vinay Kumar Malhotra also stated that he knew deceased Roshan Lal Puri, who was his brother-in-law. He .
categorically stated that house of Roshan Lal Puri was adjacent to his house and they enjoyed cordial relations inter-se them. He also stated that he used to meet him daily and he died due to clotting in his brain and he had suffered paralysis. In his examination-in-chief , of he specifically stated that before death, physical and mental condition of deceased was not good and he used to keep on rt sleeping all the time. He also stated that Roshan Lal used to urinate on the bed itself. He also stated that he is well familiar with the writing and signatures of the deceased Roshan Lal. He stated that Will does not bear his signatures. He also stated that he does not know N.K. Mahajan. He categorically stated that their houses (Marginal witnesses) are not abutting the house of the deceased Baldev Raj. He stated that plaintiff as well as defendant No. 10 are his niece and he has good relations with them. He also stated that wife of deceased Roshan Lal was his real sister and there was no dispute qua the property. In his cross-examination, he stated that he got done the treatment of Roshan Lal at Dharamshala Hospital.
He also admitted in cross-examination that adjacent to the house of ::: Downloaded on - 15/04/2017 20:59:50 :::HCHP
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Roshan Lal, there is a house of Kewal Verma. He also admitted that Roshan Lal suffered paralysis on the left side. He also denied that .
NK. Mahajan and Baldev Raj used to meet Roshan Lal very oftenly.
21. Conjoint reading of the statements made by these witnesses (PW1 and P2) certainly suggests that Roshan Lal had suffered a brain stroke and was suffering from paralysis since 1994-95 of and since then, he was unable to live like a normal person. It also emerged from the statements of both the plaintiff witnesses that rt deceased Roshan Lal was under constant treatment, firstly at Sehgal Nursing home and thereafter at Dharamshala, where he used to reside with his wife as well as defendant No. 10. This Court while critically examining aforesaid statements also perused the cross-examination conducted on this witness very minutely to explore whether the defence was able to extract anything contrary, to what these witnesses stated in their examination-in-chief. Careful reading of the cross-examination of these witnesses suggests that though defence put several suggestions with regard to dispute, if any, in the family with respect to property but admittedly, defence has not been able to extract something from these defendants witnesses suggestive of the fact that at the time of death of Roshan ::: Downloaded on - 15/04/2017 20:59:50 :::HCHP
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Lal Puri, plaintiff was not having cordial relations with her father late Shri Roshan Lal Puri. Rather, no suggestion worth the name has been .
put by the defendants to plaintiff to establish that there were some reasons, which compelled executant/testator to exclude plaintiff from the share, if any, in the property while bequeathing entire share of his property in favour of defendant No. 10. Similarly, cross-
of examination conducted on these PWs nowhere suggests that before death of deceased Roshan Lal Puri, plaintiff was not enjoying rt good relations with her parents and she had been not visiting them at Dharamshala.
22. On the other hand, DW1Gitika stated that her father expired on 8.6.1997. She also stated that property of her father in Nagar as well as Dharamshala is now owned by her. She stated that late Roshan Lal executed Will Mark-X in her favour, of which she came to know after 3-4 months of death of her father, when she was at Noida. She also stated that her sister lives at Noida, who took her as well as father to Noida along with her. She stated that her father told her that since your both the sisters are married, he has executed Will in her name and she has told this to her sister namely Sangita. She also stated that her mother expired in August, 1996.
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She also stated that mental condition of her father was perfectly alright and he could do all his work himself. She also stated that her .
father had suffered paralysis on the left side and he used to pass instructions qua the property to her. She stated that her father expired at Noida and plaintiff had come on the second day after his death and went back next day. She also stated that she is in the of possession of house at Dharamshala and after the death of her father, she had gone to Nagar for mutation of the property, wherein rt Patwari informed him that qua the property at Nagar, mutation has been entered in the name of defendants No. 8 and 9 (both sisters).
She stated that her father used to walk with the help of stick and he was mentally alert. In cross-examination, she stated that her father suffered paralysis in 1989 and thereafter, he remained under treatment for one and half years. She admitted that due to paralysis, her father had left job. She also admitted that house at Dharamshala is in the name of her mother and her sister used to visit sometimes. She admitted that she had written letter Ext.DA but she denied the suggestion that in the year, 1996, her father was bed ridden. She stated that she had gone to house after the death of her mother. She admitted that her father never disclosed her qua ::: Downloaded on - 15/04/2017 20:59:50 :::HCHP
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the execution of Will at Dharamshala. She also denied suggestion that her father could not live without any help. She also denied the .
suggestion that mental condition of her father was not fit for last two years prior to his death. But in cross-examination, she admitted that when she used to go to college, she used to lock her father inside the house. She stated that she used lock him for security reasons.
of She also stated that her father used to visit neighbors and one neighbor was Mr. Verma. She also stated that her father had not rt good relations with her maternal uncle namely Vinay Malhotra. She denied the suggestion that at the time of execution of Will, father was not in position of executing the Will. DW2 Shri N.K. Mahajan stated that Roshan Lal Puri used to reside at Gurudawara Road Dharamshala. He stated that Roshan Lal Puri used to tell him qua the execution of Will in favour of defendant No. 10. He also stated that after the death of her wife, Roshan Lal used to tell him with regard to the execution of Will in favour of Gitika. He also stated that he knew advocate Rahul Gupta, and on 6.9.1996, he called him in his office. He stated that, on that day, he along with Roshan Lal Puri and Baldev Raj went to the Advocate Rahul Gupta, where deceased Roshan Lal asked advocate to execute Will in favour of ::: Downloaded on - 15/04/2017 20:59:50 :::HCHP
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Gitika and Advocate typed the Will on the instructions of deceased Roshan Lal Puri. He stated that rough draft was prepared, which .
was read over by that Advocate to three of us. He also stated that Roshan Lal got one line inserted and stated that Will is correct. He also stated that thereafter, Will was typed. He also stated that it was read over to Roshan Lal, who appended his signatures in the of presence of these two witnesses. He also stated that Ext.DW2A bears the signatures of Roshan Lal. He also stated that earlier rt Roshan Lal appended initials (short signs) but later on after being pointed out by the lawyer, he appended his full signatures. He also stated that firstly, he along with another witness Baldev Raj appended signatures and thereafter, Advocate Rahul Gupta appended his Signature Mark-B. He also stated that lawyer told him at that time that as and when the registration of will is to be done, they may inform him. As per DW2 at 11 AM they went to Tehsil but Advocate did not come and they waited for him for some time and got the Will registered. He stated that Naib Tehsildar was known to him and Baldev, who asked Roshan Lal about Will. He also stated that he knew Roshan Lal since 1986-87 and his mental condition was good. He admitted that Roshan Lal had paralysis but he could walk ::: Downloaded on - 15/04/2017 20:59:50 :::HCHP
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with the help of stick. He also submitted that at the time of execution of Will, Roshan Lal had taken papers of property along .
with him. In his cross-examination, he stated that Roshan Lal mentioned about Will to him number of times. He also admitted that at 7:30 they went to lawyer in a van. He also admitted in cross-
examination that he does not know who had gone to call the of witness Baldev. He admitted that on 6.9.1996, defendant No. 10 and defendant No 9 were present at house. He stated that the line, rt which was later on incorporated, was qua the inclusion of elder sister, which is at point No.4 of the Will. In his cross-examination, he admitted that Will was typed by a steno, whom he does not know.
He also denied that, if any copy was prepared at the time of typing of Will. He also admitted that apart from the paralysis, deceased Roshan Lal had no ailment. He also denied those suggestions that two-three years' prior to his death, Roshan Lal was on bed and he could not get up. He also denied the suggestion that mental condition of Roshan Lal was not good and due to bad mental condition, he used to run away. He also denied the suggestion that Gitika used to put him under lock.
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23. Aforesaid two defendants witnesses have stated with regard to valid execution of Will allegedly executed by Roshan Lal.
.
Close reading of the statement of these aforesaid defendant witnesses also indicates that after suffering paralysis, deceased Roshan Lal was bed ridden and could only walk with the help of stick. It also emerges from the statement of DW1 that since she was of alone at home, after the death of her mother, she had to keep deceased Roshan Lal under lock as he used to run away sometimes.
rt Though, DW2 in his statement repeatedly stated that mental condition of deceased Roshan Lal was good even after suffering paralysis but as emerged from the statement of DW1, Roshan Lal was bed ridden and was unable to perform his daily work without any help. DW1 categorically stated in her statement that when she used to go to college, she used to lock her father inside for security reasons, meaning thereby, the deceased Roshan Lal was unable to take care of himself.
24. Conjoint reading of statements made by the plaintiff's and defendants witnesses leaves no doubt in the mind of the Court that after suffering paralysis, deceased Roshan Lal Puri had become dependent and could only walk with the help of stick. It also ::: Downloaded on - 15/04/2017 20:59:50 :::HCHP
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emerged from the statement of these witnesses that deceased Roshan Lal Puri could not be left alone at house. Though DW1 has .
stated that deceased Roshan Lal used to work with the help of stick and he used to perform his daily work of his own but statement of DW1 wherein, she admitted that sometimes, she used to lock deceased at house while going to college compels this Court to of believe the version put forth by the PW1, wherein she categorically stated that mental condition of Roshan Lal Puri was not well and rt sometimes he used to run away. If the version of DW2 is taken to be correct that deceased Roshan Lal was mentally fit and was able to work with the help of stick, where was the occasion for DW1 to lock him in the house, when she used to go to college. If he was capable of taking care of himself, and was mentally alert, there was no occasion, whatsoever, for DW1 to lock him inside the house. So accordingly, after critically examining the aforesaid witnesses adduced on record by the respective parties, this Court has reasons to believe and presume that deceased Roshan Lal Puri was not in good state of mind at the time of his death i.e 8.6.1997.
25. True, it is that plaintiff has not lent on record any evidence in support of her claim that her father Roshan Lal was ::: Downloaded on - 15/04/2017 20:59:50 :::HCHP
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suffering from mental illness at the time of execution of Will but careful reading of the statement made by the plaintiff witnesses as .
well as defendants witnesses clearly suggests that deceased Roshan Lal Puri had suffered mental stroke and was suffering from paralysis and he remained under treatment till his death. Since defendant witnesses admitted in their statements that Roshan Lal had suffered of paralysis and he was under treatment, no adverse inference, if any, could be drawn against the plaintiff as far as non production of rt medical record, if any, qua the alleged illness of the deceased Roshan lal is concerned. But at this stage, now question which remains to be decided/ascertained by this Court is "whether Will is free from suspicious circumstances or not" and same was executed by the Roshan Lal with the sound disposing mind. Since, the plaintiff has been able to prove on record that deceased Roshan Lal was mentally ill and had suffered paralysis and was under treatment till his death, onus if any, was heavily upon the defendants i.e. propounder of the Will to demonstrate that Will is free from suspicion and same was executed by the testator with his free own Will in sound disposing state of mind. But interestingly, in the instant case, even defendants have not made available on record any ::: Downloaded on - 15/04/2017 20:59:50 :::HCHP
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documents suggestive of the fact that at the time of execution of Will, deceased Roshan Lal was fully mentally alert and was in fit state .
of mind to execute the Will. Once, the plaintiff was able to show that deceased Roshan Lal Puri was not enjoying good health and was under treatment, then certainly onus was upon the defendants to prove on record by leading the cogent and convincing of evidence, be it ocular or documentary suggestive of the fact that at the time of execution of the Will, he was mentally well and was rt not under treatment. Though, defendants by leading evidence in the shape of DW1 and DW2 stated that at the time of execution of Will, deceased Roshan Lal could work with the help of stick and he used to perform his daily work without any help but as has been observed above, it has categorically come in the Statement of DW1 that when she used to go to college, she used to lock her father inside the house, this submission of DW2 somewhere creates doubt in the mind of the court that mental condition of her father was not that good, where he could be left alone at house. Rather, statement given by DW1 indicates towards the bad mental state of deceased Roshan Lal. PW1 categorically stated in her statement that her father deceased Roshan Lal used to run away and now if ::: Downloaded on - 15/04/2017 20:59:50 :::HCHP
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her statement is read, where she stated that she sometimes used to lock him inside the house, it certainly indicates about the poor .
mental health of the deceased Roshan Lal. At this juncture, it would be critical and apt to refer to Ext.DA letter written by defendant No. 10 to the plaintiff, wherein she categorically mentioned that "now a days, it is really becoming difficult to handle father, who is really of troubling a lot." After perusing the aforesaid letter, it clearly emerges that parties to dispute were enjoying good relations and rt there appears to be no dispute existing at that time qua the property, rather, careful perusal of the letters suggests that they are caring about each other, secondly, very important fact emerges from this letter is that, physical condition of the father was not very well because defendant No. 10 in letter, specifically mentioned that now a days, it has become difficult to handle the father. If these aforesaid contents of the letter are read juxtaposing the statements given by the witnesses, where they unequivocally stated that her father had suffered paralysis and he was not keeping good health it can be safely concluded that deceased Roshan Lal was unable to work and it had become necessary for someone to stay back at home to take care of him. Defendant No. 10 categorically stated in ::: Downloaded on - 15/04/2017 20:59:50 :::HCHP
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the letter Ext.DA that now a days, her father does not listen to anybody at house. Bare perusal of the letter when read in .
conjunction with the statements of PWs and DWs 1 and 2, leaves no doubt in the mind of the Court that mental condition of Roshan Lal was not well at all at the time of execution of the Will on 26.6.1996, because aforesaid letter has been written on 23.4.1996 i.e. two of months prior to execution of the Will. In letter dated 23.4.1996, Ext.DA defendant No. 10 has categorically mentioned that her rt father does not walk at all and he does not listen to anybody. At this stage, after reading letter dated 23.4.1996, it is not understood when deceased was unable to walk on 23.4.1996, how he could go to Tehsil along with DW1 on 2.6.1996 for execution of Will, without there being any aid of anybody because DW2 in his statement has stated that deceased could walk with the help of stick and used to perform his daily work without the help of anybody, which appears to be totally contradictory to the averments contained in letter dated 23.4.1996 admittedly written by defendant No. 10. Aforesaid circumstances noted by this Court certainly points towards one of the material suspicious circumstances raised by the plaintiff.
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26. PWs 1 and 2 have categorically stated in their statements that deceased Roshan Lal was not in disposing state of .
mind and he was totally bed ridden. Similarly, in the plaint filed by plaintiff, PW1 also contended that Will has been not scribed by the Roshan Lal, rather, same is a forged document procured falsely. At this stage, it may also be noticed that plaintiff filed suit bearing No. of 72 of 1998 for partition under Indian Partition Act by meets and bonds specifically averring therein that suit property is still joint and rt not partitioned by the parties and they are jointly enjoying and possessing the same. In the plaint, plaintiff stated that despite several requests made to the defendants, they have failed to get the joint property partitioned by meets and bonds and as such, cause of action, if any, arose to her on 20.4.1998 to file the present suit. Respondents No. 6, 9 and 10 by way of written statement refuted the claim of the plaintiff for partition by disclosing that Roshan Lal predecessor-in-interest of the plaintiff as well as of defendants No. 9 and 10 executed a Will of his entire share in the suit property in favour of his daughter himself as back as on 6.8.1996, meaning thereby, factum with regard to execution of Will only, if any, by late Shri Roshan Lal in favour of defendant No. 10 ::: Downloaded on - 15/04/2017 20:59:50 :::HCHP
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came to fore with the filing of written statement by defendants No. 6, 9 and 10. Plaintiff by way of replication disputed execution of Will .
as claimed by defendants No. 6, 9 and 10 in their written statement and termed the alleged Will as forged, fake and fictitious document manipulated by the proforma defendant after the death of Sh.
Roshan Lal in connivance with the scriber and witnesses. It also of emerges from the record that plaintiff amended his plaint and inserted para 7A in the plaint. Averments contained in para 7-A are rt reproduced as below:-
"7A. That the alleged Will set up by the defendants No. 9 and 10 which has been allegedly executed by said Sh. Roshan Lal on 6.0.1996 was never executed by said Sh.
Roshan Lal and is forged one having been prepared by the defendants No. 9 and 10 to get wrongful gain over the plaintiff's property, in alternative though not admitted, the said will was not executed by said Sh. Roshan Lal Puri while he was not in his proper senses and said Sh. Roshan Lal Puri had been suffering from mental incapability due to old age ill health as he had become extremely weak in body and mind and was incapable of understanding and form any rational judgment concerning his self continuously for two years before his death."
27. It also emerges from the contents contained in aforesaid para that plaintiff while disputing the Will set up by defendants No. 9 and 10 specifically averred that Will was not executed by Roshan Lal ::: Downloaded on - 15/04/2017 20:59:50 :::HCHP
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in his proper senses since he was suffering from mental incapability due to old age and ill health and he had become extremely weak .
in body and mind and was incapable of understanding and form any rational judgment concerning his self for two years before his death. However, record further reveals that aforesaid amendment carried out by the plaintiff was suitably replied by the defendant No. of 6, 9 and 10 by way of filing a reply to the amended application.
Careful perusal of amended reply filed by the defendant No. 6, 9 rt and 10, nowhere suggests that allegation/averments made by the plaintiff in amended petition regarding bad mental health of deceased Roshan Lal was ever refuted by the defendants. There is no whisper, if any, in the written statement to amended plaint with regard to allegation made by the plaintiff in the amended plaint that deceased Roshan Lal Puri was not in his proper senses as he was suffering from mental incapability due to old age and ill health.
Similarly, there is no rebuttal, if any, to the averments contained in the amended petition that deceased was extremely weak in body and mind and was incapable to form any rational decision/judgment concerning himself continuously for two years before his death.
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28. In the present case, as clearly emerge from the record, PW1 first by way of filing replication to the written statement .
thereafter by carrying out amendment in the written statement specifically alleged that deceased Roshan Lal was not in sound disposing state of mind at the time of execution of Will and she termed the Will as fake document shrouded by suspicious of circumstances. Defendant instead of filing specific reply to the averments as referred above, contained in the amended plaint filed rt reply only reiterating that Roshan Lal had executed Will in favour of defendant No. 10 bequeathing his share in the property. Guidelines framed in H. Venkatachala Iyengar vs. B.N. Thimmajamma and ors.
still holds good, which clearly provides that onus of proving Will is always on the propounder and the absence of the suspicious circumstances concerning the execution of Will, proving of testamentary exposition and signature of testator required by law is sufficient to discharge onus. The onus is on the propounder to explain to the satisfaction of the Court before accepting the Will as genuine. Similarly, judgment referred above also provides that where the caveator alleges undue influence fraud and coercion, onus is on him to prove the same. The judgment referred herein ::: Downloaded on - 15/04/2017 20:59:50 :::HCHP
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above has gone one step ahead by providing that where there are no such pleas but the circumstances give rise to doubts, it is for the .
propounder to satisfy the conscience of the Court. It is also been provided that suspicious circumstances may be as to genuineness of the signature of the testator, the condition of testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in of the light of relevant circumstances. In the present case, at the first instance, plaintiff filed suit for partition and after discovering the rt factum of execution of alleged Will in favour of defendant No. 10 from the written statement filed by defendants No. 6, 9 and 10, suitably disputed the same by filing replication as well as by amending plaintiff specifically alleging therein that Will is fake and forged document procured by manipulation by defendant No. 10.
Plaintiff also stated that mental condition of deceased Roshan lal executant /testator was not good at the time of scribing of the Will since he was totally incapacitated due to mental stroke, which he suffered two years prior to scribing of the Will.
29. At this stage, it is pertinent to observe that once alleged Will was termed as forged document, onus was upon defendant No. 10 to dispel the notion of Will being shrouded by suspicious ::: Downloaded on - 15/04/2017 20:59:50 :::HCHP
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circumstances. Both the courts below, while rejecting the plea of plaintiff that Will is shrouded by suspicious circumstances concluded .
that plaintiff did not lead sufficient evidence on record to support her contention that her father was not in sound disposing state of mind at the time of execution of Will. Courts below also observed that in the absence of specific medical record, version put forth on of behalf of the plaintiff could not be believed. However, both the courts below lost sight of the fact that factum qua the suffering from rt brain stroke and paralysis was duly admitted by defendants No. 6, 9 and 10 in their depositions made before the trial Court, where they unequivocally accepted that late Roshan Lal during his service had suffered mental stroke causing paralysis on the left side of the body.
DWs 1 and 2 specifically admitted in their statements made before the trial Court that deceased Roshan Lal remained ill for quite long and was under treatment firstly at Sehgal nursing home and thereafter in Hospital at Dharamshala . Though, DWs No. 1 and 2 while admitting illness of the deceased Roshan Lal also stated that deceased could walk with the help of a stick and he used to perform his work daily without any assistance but careful perusal of the deposition made by DW1 creates doubt in mind of the Court, ::: Downloaded on - 15/04/2017 20:59:50 :::HCHP
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where she stated that sometimes, she used to lock her father deceased Roshan Lal in the house. If deceased Roshan Lal was .
mentally alert and used to perform his daily work of his own, there was no occasion for DW1 to lock him inside the house, when she used to go to college.
30. Similarly, perusal of Ext.DA compels this Court to presume of that at the time of execution of Will, deceased Roshan Lal was not in fit state of health because admittedly, in that letter (Ext.DA), rt defendant No. 10 categorically informed her sister that "now it has really become very difficult to handle her father." She also stated in the letter that "he does not walk at all." Close reading of letter compels this Court to draw inference that at the time of writing of letter i.e two months prior to scribing of Will, deceased Roshan Lal was not in fit state of mind. Careful perusal of statement of DW1 as well as Ext.DA creates suspicion qua the genuineness and correctness of the deposition made by DW2, who repeatedly stated that Shri Roshan Lal used to walk with stick and perform his daily work of his own. Rather DW2 stated that Roshan Lal along with him as well as Shri Baldev Raj went to Sub-Registrar for registration of Will in van. Once plaintiff had specifically alleged that the Will is result ::: Downloaded on - 15/04/2017 20:59:50 :::HCHP
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of fraud and undue influence and manipulation, onus was upon the propounder-defendants to prove that Will in question is/was not .
shrouded by the suspicious circumstances and the same was duly executed in her favour in accordance with provision of Section 63 of the Indian Succession Act.
31. In the present case, while rejecting the plea of the of plaintiff, both the courts concluded that no medical evidence worth the name was led on record by the plaintiff to substantiate her rt claim qua the illness of the deceased Roshan Lal but both the courts below never called upon the defence i.e propounder of the Will to place on record medical evidence, if any to dispel the notion of the plaintiff that at the time of execution of Will Roshan Lal-
testator of the Will was not in sound state of mind.
32. This Court is of the view that to prove the Will, defendant was expected to lead positive evidence on record in the shape of medical records to demonstrate that at the time of execution of Will deceased Roshan Lal Puri had fully recovered from the illness and he was in disposing state of mind to execute the Will. But in the present case, defendants No. 9 and 10 only stated that at the time of execution of Will, deceased Roshan Lal was in sound state of ::: Downloaded on - 15/04/2017 20:59:50 :::HCHP
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mind as he could walk with the help of stick. But it is not understood that courts below while rejecting the claim of the plaintiff .
concluded that there is no medical evidence, how in same breath, courts below could accept the version put forth by the defendants that at the time of execution of Will, deceased Roshan Lal had fully recovered of illness. Hence, this Court is of the view that both the of courts below have erred in concluding that onus was upon the plaintiff to prove that deceased Roshan Lal was not in sound rt disposing state of mind at the time of execution of Will, rather, courts should have called defendants-propounder of the Will to lead positive evidence on record to suggest that Will is free from all suspicion and same was executed by deceased Roshan Lal in sound disposing state of mind.
33. In the present case, interestingly courts below expected plaintiff to place medical record to substantiate her plea with regard to illness of deceased Roshan Lal despite the fact that illness was duly admitted by the defendants whereas version put forth by the defendants propounder of Will was accepted by the courts below solely on their depositions made before the Court.
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34. In view of the detailed discussion made, herein above, this Court is of the view that there is ample evidence on record .
suggestive of the fact that at the time of the execution of Will deceased Roshan Lal i.e. executant/testator of the Will was not in sound disposing state of mind, rather, he was fully incapacitated as clearly emerge from the statement of DW1 and letter Ext.DA.
of
35. Similarly, both the courts below have failed to appreciate that scriber of Will, Rahul Gupta, was never examined.
rt True, it is that there is no necessity as such, in law to examine the scriber of the Will but in the present case, where the version put forth by DW2 N.K.Mahajan does not appear to be trustworthy especially in view the statement given by DW1, the absence of scriber advocate Rahul Gupta appears to be detrimental/fatal to the case of defendants. As per PW1, deceased Roshan Lal was incapable of walking and at this stage deposition, if any, by scriber Rahul Gupta, Advocate, would have clearly helped the courts below to ascertain the genuineness and correctness of the version put forth by PW1, PW2, DW1 and DW2. In the present case, defence has only cited DW2 i.e. marginal witness of the Will as defendant witness. Bare perusal of statement made by DW2 itself suggests that he has gone ::: Downloaded on - 15/04/2017 20:59:51 :::HCHP
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above the board to prove the case of defendant by stating something which was not relevant rather, indicates towards the .
overzealousness of DW2 to get the will executed in favour of defendant No. 10. Similarly, defendants have not cared to cite Baldev Raj as a witness, who allegedly signed as marginal witness. In the present case, courts below while ignoring the aforesaid of omissions made by defendants concluded that there was no necessity in law to cite both the marginal witnesses as well as scriber rt of the Will but it appears that both the courts below failed to appreciate that depositions made by DW1 and DW2 were not confidence inspiring and could not be taken to be correct on its face value and as such, examination of these aforesaid witnesses as mentioned above could be crucial for determining the controversy at hand. Another discrepancy, which has been brushed aside by the courts below is with regard to rough deed, allegedly prepared by the scriber of the Will before finalization of the Will.
36. DW2 categorically stated that scriber firstly prepared the rough Will on the instructions of deceased Roshan Lal and after seeing the same, deceased Roshan Lal got one line inserted in the Will but in the absence of the rough deed, it is not possible to ::: Downloaded on - 15/04/2017 20:59:51 :::HCHP
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ascertain that what was the line which deceased Roshan Lal got inserted in the final draft? Since defendants failed to cite scriber of .
the Will i.e. Rahul Gupta as a witness, there is nobody who could throw light on this aforesaid aspect highlighted in the statement of DW2. Similarly, it is also not understood that what were the compelling circumstances for the deceased Roshan Lal-testator of of Will to execute Will bequeathing his entire property in favour of defendant No. 10. There cannot be any quarrel that it is wish of the rt executor/testator of the Will, which must prevail and he was competent enough to give any part of his property to anyone of his LRs or any person of his liking. But in the present case, circumstances as pointed are such, which really creates doubt with regard to genuineness and correctness of Will. This Court was unable to gather anything from the pleadings/evidence made available on record by the respective parties, from where it could be inferred that relation of plaintiff and executant/testator of Will was so sour/bitter that he did not mention anything qua the plaintiff, who is his own daughter. Interestingly, perusal of the Will suggests that executant while bequeathing his property in favour of defendant No. 10 also mentioned in the Will that defendant No. 10 Will be ::: Downloaded on - 15/04/2017 20:59:51 :::HCHP
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absolute owner of these properties after his death. It is also recited in the will that Wakf Board property situated in Gurduwara Road .
Dharamshala, which is in the name of wife of the deceased Roshan Lal, and he along with Kumari Geetika is in possession of property, would be renewed in his name or in the name of Kumari Geetika Defendant No.10 henceforth and she will be entitled to get these of lease rights after his death. It is not understood that when the property mentioned above was in the name of mother of plaintiff, rt how deceased Roshan Lal could bequeath the same by way of Will in favour of defendant No. 10. Admittedly, he had all the rights to bequeath his property in anybody's favour but definitely, he had no right whatsoever, to make recitation in the Will with regard to property, which admittedly was in the name of Smt. Kamla Puri i.e. deceased wife of the Roshan Lal. Similarly, in para-4 of the Will, it has been recited that "my daughter is unmarried and requires some guidance, therefore, with a view to safeguard her interest, further declared that Kumari Geetika will have no power to transfer or alienate any immovable property (which Will be in her ownership after my death) in any manner whatsoever, without the consent of my daughter Smt. Sangeeta Talwar." In para 5 of the Will, it has ::: Downloaded on - 15/04/2017 20:59:51 :::HCHP
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been further recited that before execution of this Will, I have consulted my married daughter Sangeeta and Suman and have .
expressed my views to them. At this stage, it is not understood that why name of only Smt. Sangeeta Talwar was mentioned by the executant in para 4 of the Will to protect/safeguard the interest of defendant No. 10. Mention of Sangeeta i.e. another daughter of of Roshan Lal somehow, indicates towards another suspicious circumstances because admittedly, it has come in the statement of rt defendants No. 1 and 2 that at the time of execution of Will, when deceased Roshan Lal had gone to office of Sub-Registrar with DW2 N.K. Mahajan and Baldev Raj Sharma, Sangeeta along with Kumari Geetika was present at the house of Roshan Lal at Dharamshala. It is not understood when executants/testator of Will had consulted with both the daughters with regard to execution of Will in favour of defendant No. 10, what prevented him from not mentioning the name of plaintiff Suman along with Smt. Sangeeta in Para 4 of the Will.
37. All these circumstances, as discussed herein above points towards the suspicions circumstances with which, Will is surrounded. Though DW2 has rendered explanation in his statement ::: Downloaded on - 15/04/2017 20:59:51 :::HCHP
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that initially executant had put his initials/short signatures but later on appended his full signatures but in the absence of depositions, if .
any, of scriber of the Will as well as Sub-Registrar ,in the presence of whom, testator executants signed the Will, it is difficult to accept the contention put forth on behalf of defendants that Will was validly executed by the deceased Roshan Lal in favour of defendant No. of
10.
38. This court, as has been observed, could not lay its hand rt to any of document suggestive of the fact that executants /testator of Will had compelling circumstances to exclude plaintiff from the Will allegedly executed in favour of defendant No. 10 and as such, really finds it difficult to accept that Will Ext.DW2A is free from suspicious circumstances. Moreover, close scrutiny of statements given by DW1 and DW2 suggests that there are major contradictions in their statements and they could not be accepted on its face value. The propounder of Will has not led any documentary evidence on record to suggest that testator /executant of the Will was in sound disposing state of mind at the time of execution of Will.
Though, plaintiff, who had actually filed the suit for partition, has also not led any documentary evidence to substantiate her contention ::: Downloaded on - 15/04/2017 20:59:51 :::HCHP
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with regard to illness/of deceased Roshan Lal but fact remains that the plea of Will having been executed in favour of defendant No. .
10 was set-up by the defence in their written statement. Plaintiff specifically denied the same by specifically refuting the same in the amended reply as well as replication by stating that Roshan Lal was not in disposing state of mind at the time of execution of Will since of he was ill for almost two years prior to the execution of Will, meaning thereby, onus was on the propounder to dispel the aforesaid plea of rt the plaintiff that Will was not executed by the deceased Roshan Lal in sound disposing state of mind.
39. In view of the detailed discussion made herein above, especially after going through the evidence available on record, this Court is of the view that there is considerable force in the contentions put forth on behalf of the plaintiff that Will is shrouded by suspicious circumstances and defendants being propounder of the Will have not been able to demonstrate that Will is free from suspicious circumstances and has been validly executed in term of Section 63 of Indian Succession Act. After careful perusal of the statements made by witnesses, cited by both the parties as well as documentary evidence available on record, it stands duly ::: Downloaded on - 15/04/2017 20:59:51 :::HCHP
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established on record beyond doubt that deceased Roshan Lal was not in good state of mind at the time of execution of Will and same .
is not validly executed. It is well settled law that will should be found to be free from any suspicious circumstances and same should be executed in terms of Section 63 of the Indian Succession Act, which reads as under:-
of "Section 63.- Execution of unprivileged Wills-Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 1 ( or an airman so rt employed or engaged,} or a mariner at sea, shall execute his Will according to the following rules:-
( a) and ( b)...
( c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark of the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary." Indisputably, the said provision is mandatory in nature. A Will is required to be attested by two or more witnesses."::: Downloaded on - 15/04/2017 20:59:51 :::HCHP
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40. What constitutes suspicious circumstances, is discussed by the Hon'ble Apex Court in Bharpur Singh and others Vs. Shamsher .
Singh, 2009(3) SCC 687. Relevant portion of the judgment reads as under:-
"22. We may notice that in Jaswant Kaur vs. Amrit Kaur & ors. [(1977) 1 SCC 369] this Court pointed out that when of the Will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and defendant. An adversarial proceeding in such cases becomes a rt matter of Court's conscience and propounder of the Will has to remove all suspicious circumstances to satisfy that Will was duly executed by testator wherefor cogent and convincing explanation of suspicious circumstances shrouding the making of Will must be offered.
17. Suspicious circumstances like the following may be found to be surrounded in the execution of the Will:
i. The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.
ii. The condition of the testator's mind may be very feeble and debilitated at the relevant time.
iii. The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.::: Downloaded on - 15/04/2017 20:59:51 :::HCHP
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iv. The dispositions may not appear to be the result of the testator's free will and mind.
v. The propounder takes a prominent part in the .
execution of the Will.
vi. The testator used to sign blank papers.
vii. The Will did not see the light of the day for long.
viii. Incorrect recitals of essential facts."
of
41. The onus to prove the will is always on the propounder. It is held so again by the Hon'ble Apex Court in K. Laxmanan V. Thekkayil Padmini and others, 2009(1) Apex Court judgments 040 rt (S.C):2009(1) Civil Court Cases 526(S.C.):2009(1) SCC 354. This judgment also reads as follows:-
"19. When there are suspicious circumstances regarding the execution of the Will, the onus is also on the propounder to explain them to the satisfaction of the court and only when such responsibility is discharged, the court would accept the will as genuine. Even where there are no such pleas, but circumstances given raise to doubt, it is on the propounder to satisfy the conscience of the court. Suspicious circumstances arise due to several reasons such as with regard to genuineness of the signature of the testator, the conditions of the testator's mind, the dispositions made in the will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testator's mind was not free. In such ::: Downloaded on - 15/04/2017 20:59:51 :::HCHP
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a case, the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the late will of the .
testator. The aforesaid view is taken by us in consonance with the decision of this Court in Shashi Kumar Banerjee v. Subodh Kumar Banerjee and Pushpavathi v.
Chandraraja Kadamba."
42. With a view to substantiate his arguments with regard to of the execution of will shrouded by suspicious circumstances, Mr. Verma, learned counsel invited attention of this Court on the rt judgment passed by Hon'ble Apex Court in Jaswant Kaur versus Amrit Kaur and others SLJ Himachal Pradesh 1978-2, wherein it has been held as under:-
"9. In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court's conscience and then the true question which arises for consideration is whether the evidence led by the pro- pounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will .offers a 'cogent and convincing explanation of the suspicious circumstances surrounding the making of the will."::: Downloaded on - 15/04/2017 20:59:51 :::HCHP
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"10. There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate .
judgment of this Court in R. Venkatachala Iyengar v.
B.N. Thirnmajamma & Others. (1959) Supp. 1. S.C.R.426. The Court, speaking through Gajendragadkar J., laid down in that case the following propositions:--
1. Stated generally, a will has to be proved like any of other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the ease of rt proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
2. Since section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by section 63 of the Evidence Act, 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.
3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed.
This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and ::: Downloaded on - 15/04/2017 20:59:51 :::HCHP
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testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go .
into the making of the will.
4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the of propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances rt raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
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5. It is in connection with wills, the execution of which is surrounded by suspicious circumstance that the test of satisfaction of the judicial conscience has been .
evolved. That test emphasizes that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly of executed by the testator.
6.If a caveator alleges fraud, undue influence, rt coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution' of the will may raise a doubt as to whether the testa tor was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
43. Mr. G.D. Verma, with a view to substantiate his arguments with regard to exclusion of first class legal heirs from the will alleged to be proved as a genuine is also shrouded by suspicion, placed reliance on the judgment passed in Kalyan Singh versus Smt. Chhoti and others, AIR 1990 Supreme Court 396. Para No. 20 and 22 of the judgment is reproduced as under:-
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"20. It has been said almost too frequently to require repetition that a will is one of the most solemn documents known to law. The executant of the will .
cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity of the will. It must be stated that the factum of execution and validity of of the will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth rt from falsehood the court is not confined only to their testimony and demeanor. It would be open to the court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party."
" 22. The Privy Council in Mt. Biro v. Atma Ram , AIR 1937 PC 101 had an occasion to consider and analogous case where the wife was practically disinherited and there was unexplained delay in producing the will in public. There the alleged will by a testator gave only a life estate to his daughter who was the only child and who was to get some property at her marriage. The bulk of the estate was vested in the window of the testator and three other women, namely ::: Downloaded on - 15/04/2017 20:59:51 :::HCHP
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his mother, his step-mother and his paternal aunt. These women though entitled under the Hindu Law only to maintenance were made joint owners equally with the .
widow of the testator. None of the devisees could get the estate partitioned or alienate it for necessity. It was, however, provided that the lady, who survived the other three devisees, would become the absolute owner of the estate. The window of the testator would not get her husband's estate, if she predeceased any of her co-
of devisees. The will was not produced until 22 years after its execution through there were occasions to produce it, had it rt been in existence. Considering these circumstances, the Privy Council observed ( at p.104):
"It is most that a person having a wife and a minor unmarried daughter, who should be the objects of his affection, would make a will which would practically disinherit them."
"That the testament is unnatural and runs counter to the ordinary sentiments of persons, having a status in society similar to that of Harbans Lal, cannot be seriously disputed. But his is not the only circumstance which tells against its genuineness. The will purports to have been executed on 24th August, 1900, and the testator died within a monthly of that date. But it is strange that it was not produced until 1922, after the commencement of the present litigation. During this long period of 22 years, which intervened, there were occasions when the widow ::: Downloaded on - 15/04/2017 20:59:51 :::HCHP
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or her advisers could have produced the document, if it had been in existence; but they did not do so......"
The will in the present case, constituting the plaintiff as a .
sole legatee with no right whatever, to the testator's wife seems to be unnatural. It casts a serious doubt on genuineness of the will. The will has not been produced for very many years before the court or public authorities even though there were occasions to produce it for of asserting plaintiff's title to the property. The plaintiff was required to remove these suspicious circumstances by placing satisfactory material on record. He has failed to rt discharge his duty. We, therefore, concur with the conclusion of the High Court and reject the will as not genuine."
44. In case titled as Jagdish Chand Sharma Versus Narain Singh Saini (Dead) through legal representatives and others 2015(8) Supreme Court cases 615, wherein it has been held as under:-
"46.This Court in H. Venkatachala Iyengar (supra) while dilating on the statutory requisites of valid execution of a Will, observed that unlike other documents this testamentary instrument speaks from the death of the testator and by the time when it is produced before a Court, the testator had departed from his temporal state and is not available to own or disown the same. It was thus emphasised that this does introduce an element of solemnity in the decision on the question as to whether ::: Downloaded on - 15/04/2017 20:59:51 :::HCHP
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the document propounded is proved to be the last Will and testament of the departed testator. In this context, it was emphasised that the propounder would be required .
to prove by satisfactory evidence that (i) the Will was signed by the testator, (ii) he at the relevant time was in a sound and disposing state of mind, (iii) he understood the nature and effect of the dispositions, and that (iv) he put his signature to the document of his own free will. It was observed that ordinarily when the evidence of adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as rt required by law, the court would be justified in making a finding in favour of the propounder signifying that he/she had been able to discharge his/her onus to prove the essential facts. The necessity of removal of the suspicious circumstances attendant on the execution of the Will, however, was underlined as well. That no hard and fast or inflexible rule can be laid down for the appreciation of the evidence to this effect was acknowledged."
"58.The materials on record, as a whole, also do not, in our comprehension, present a backdrop, in which, in normal circumstances, the testator would have preferred the appellant to be the legatee of his property as set out in the Will, Ex. A-1, by denying his wife, children and grand children who were alive and with whom he did share a very warm affectionate and cordial relationship. Viewed in this context, the bequest is ex facie unnatural, unfair and improbable thus reflecting on the testator's ::: Downloaded on - 15/04/2017 20:59:51 :::HCHP
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cognizant, free, objective and discerning state of mind at the time of the alleged dispensation. The suspicious circumstances attendant on the disposition, in our .
opinion, do militatively impact upon the inalienable imperatives of solemnity and authenticity of any bequest to be effected by a testamentary instrument."
45. In Surinder Paul and another versus Sataya Devi and others, 1997(2) S.L.J.1510, wherein it has been held as under:
of "9. Counsel for the respondents, on the other hand, rt argued that the concurrent findings of the Courts below do not call for any interference in the second appeal as the same were based upon appreciation of evidence adduced by respective parties. According to counsel, appellants have failed to dispel any one of the various suspicious circumstances surrounding the execution of Will as noticed by the trial Court. According to counsel, it is well settled that it is upon the beneficiary to dispel all such suspicious circumstances before such a document can be held to be a valid thereby depriving the rightful claimants to the rights. Since they have failed to discharge this onus, courts below have rightly ignored the Will.
I have heard learned counsel for the parties as well as perused the well written judgments of courts below as well as of the lower appellate Court. Concededly, Daulat Ram died issueless leaving behind plaintiffs and Smt. Maya Devi, his sisters, to be the nearest heirs. Defendants No. 1 and 2 - the appellants - are not related to Daulat Ram.
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They even do not belong to his caste. According to defendants, they had been looking after him and so out of love and affection he chose to bequeath this property in .
their favour and so executed a Will. Will, of course, is a solemn document and it is to be given effect to if proved and free from all suspicious circumstances. Onus to dispel all suspicious circumstances is upon the person propounding such a document. The trial Court made reference to various infirmities as have come up in the of statements of witnesses creating a doubt as to the due execution of the Will i.e. (i) that the executant was not in a disposing mind at the time of execution of Will as he had rt been suffering from T.B. and this fact had been admitted by witnesses of the parties (ii) the fact that the executant dies on the next date by itself suggest that he was not in a fit physical and mental condition so as to understand the consequences of what he has been doing; (iii) that a chronic T.B. patient could not walk for a one and half mile as stated by the attesting witnesses of the Will; and (iv) that as per statement of witnesses of the Will, after execution of the Will, they returned to the village whereas he stayed at Nawanshahr. This, according to the court was most un-natural. What was the reason for thump- marking this document when executant was a educated person ? This again creates a doubt as one of his arm was amputated and may be there was no proof in existence to compare the thumb-impression of the executant."
"10. Will does not make mention of sisters or any of other heirs. As noticed earlier, no attempt has been made to ::: Downloaded on - 15/04/2017 20:59:51 :::HCHP
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dispel any of the suspicious circumstances, so courts below rightly discarded this document. Somewhat similar matter came up for consideration before the apex Court .
in case reported as Ram Piari v. Bhagwant, (1990-1)97 P.L.R. 639 (S.C.). In the aforesaid case, a disinherited daughter challenged the Will to have been executed by a father a day before his death bequeathing all his property in favour of sons of her only sister. Though in the aforesaid case, the findings of the Courts below were affirmed by of the High Court, the apex Court set aside the findings holding that the matter has not been properly comprehended by any of the court. It further held that rt though freedom to bequeath one's own property amongst Hindus is absolute both in extent and person, including rank stranger yet to have testamentary capacity or a disposable mind what is required of propounder to establish is that the testator at the time of disposition knew and understood that the property he was disposing and persons who were to be beneficiaries of his disposition.
According to the Apex Court, prudence requires reason for denying benefit to those who too were entitled to bounty of testator as they had similar claims on him.
Absence of it may not invalidate a Will but it shrouds the disposition with suspicious as it does not give any inkling to the mind of testator to enable the court to judge if the disposition was voluntary act. In this case too, the court noticed that whereas the testator could sign yet he thumb-marked the document and so observed that this by itself was sufficient to put the court on alert.::: Downloaded on - 15/04/2017 20:59:51 :::HCHP
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Respectfully following the aforesaid judgment and applying the ratio to the facts of the present case. I am of the view that the view taken by the Courts below is in .
consonance with the various decisions taken by this Court as well as Apex Court."
46. In Milkhi Ram and others versus Smt. Surmoo Devi, 1993(3) S.L.J 2729. The relevant para of the judgment reproduced as under:-
of "9. In Ram Piari versus Bhagwant and others, 1990 Marriage LJ 283, in para 4 of the judgment, the learned Judge of the Supreme Court rt made the following observations:-
" Ratio in Malkani v. Jamadar, AIR 1987 SC767, was relied on to dissuade this Court from interfering, both, because of the finding that will was genuine, was a finding of fact and omission to mention reason for disinheriting the daughter of taking prominent part by beneficiary by itself was not sufficient to create any doubt about the testamentary capacity was because of misunderstanding of the correct import of the decision and the circumstances in which it was rendered. Property in Malkani's case was land. Beneficiary was nephew as against married daughter.
Anxiety in village to protect landed property of agricultural holdings from going out of family is well known. Even though it cannot be said to be hard and fast rule yet when disinheritance is amongst heirs of equal degree and no reason for exclusion is disclosed, is disclosed, then the standard of scrutiny is not the same and if the courts below ::: Downloaded on - 15/04/2017 20:59:51 :::HCHP
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failed to be alive to it as is clear from their orders then their orders cannot be said to be beyond review....."
47. In case S. R. Srinivasa and others versus S. .
Padmavathamma 2010(3) Civil Court Cases 359 (S.C.). Para No.39 of the judgment reproduced as under:-
"39. Since there were suspicious circumstances, it was necessary for the defendants to explain the same. The of registration of the Will by itself was not sufficient to remove the suspicion. The first appellate court also notices that even in cases where the execution of the will rt is admitted, at least one attesting witness of the Will has to be examined to receive the will in evidence. Dw-2 , who has been examined is the scribe of the will, has given no plausible reasons as to why the will was presented twice before the sub-Registrar creates suspicion about the genuineness of the will. Even the attesting witnesses to the Will have not been examined.
There is no evidence whether the will was read over by the Sub-Registrar or anybody else before it was registered. It is not explained as to how the Will came into possession of defendant No.1. There is no evidence when he was put in proper custody of the Will. Considering the cumulative effect of all the circumstances, the First Appellate Court has held that execution of the Will is surrounded by suspicious circumstances. Consequently, the appeal was allowed and the judgment of the Trial Court was set-aside.::: Downloaded on - 15/04/2017 20:59:51 :::HCHP
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48. Reliance has also been placed on various judgments passed by this Court, other High Courts as well as the Hon'ble .
Apex Court herein below:-
1. M.B. Ramesh (dead) by LRs. Versues K.M. Veeraje Urs (dead) by LRS. and Ors., (2013) 7 SCC 490.
2. Major Singh v. Rattan Singh (dead) by Lrs. and Ors., (1997) 3 SCC 546.
3. Chuhru Ram v. Dhani Devi and Ors., 2011 (1) SLC 293. of
4. Hira Devi and Ors. v. Smt Himi and Ors., 1989, SLJ 363.
5. Om Pradash and Ors. v. State of Himachal Pradesh and Ors., AIR 2001 (Vol.88) Himachal Pradesh 18.
rt
6. Saraswathi and Anr. Versus S. Ganapathy and Anr, AIR 2001 SC 1844 and Vishnu Prakash and Anr. V. Sheela Devi and Ors., AIR 2001 SC1862.
7. Joseph Antony Lazarus (D) by LRs versus A.J. Francis, AIR 2006 SC 1895.
49. Mr. K.D. Sood, learned counsel representing the defendants while arguing forcibly contended that this Court does not sit in appeal over the right or wrong of the testator's decision and the Court's role is very limited, hence, as such, it cannot re-
appreciate the evidence available on record. He contended that a will appearing on face of it have been duly attested in favour of the plaintiff/ defendant and as such no interference of this Court is called for in the present case, rather, there is ample evidence on record to suggest that the will Ex.PW3/A is valid document duly ::: Downloaded on - 15/04/2017 20:59:51 :::HCHP
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executed by the testator in favour of the defendants. To substantiate aforesaid arguments, he placed reliance on the .
judgment titled as Gurdev Kaur and others Vs. Kaki and others (2007) 1 Supreme Court Cases 546. The para No.77 of the judgment is reproduced as under:-
" The High Court has clearly deviated from the settled of principle of interpretation of the will. The court does not sit in appeal over the right or wrong of the testator's decision. The court's role is limited to examining whether rt the instrument propounded as the last will of the deceased is or is not that by the testator and whether it is the product of the free and sound disposing mind. It is only for the purpose of examining the authenticity or otherwise of the instrument propounded as the last will, that the court looks into the nature of the bequest."
50. Reliance is also placed on judgment rendered by this Court in Ram Dei v. Smt. Chinta Mani and Anr. in latest HLJ Vol.38 2015 (HP) 1418, the relevant paras of which are reproduced herein below:-
"13. DW-3 Sh. Pardeep Sharma, has also led his evidence by way of affidavit. He testified that Lal Singh came to the Court on 17.5.1996. He got the Will scribed out of his free olition. The Will was written by Niranjan Dass, Petition Writer without any undue influence. He and Sudhir ::: Downloaded on - 15/04/2017 20:59:51 :::HCHP
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Bhatnagar were the marginal witnesses of the Will. The contents of the Will were read over and explained to Lal Singh. Lal Singh after admitting the contents of the same .
to be true and correct put his signatures on the Will in their presence on both the pages. He also signed the same as a marginal witness alongwith Sh. Sudhir Bhatnagar. Thereafter, the Will was got registered in the office of Sub Registrar, Kullu. The Sub Registrar Kullu, has read over the contents of the Will to Lal Singh and he of after admitting the contents to be true and correct put his signatures on the endorsement. They also put their signatures on the endorsement in the presence of Sub rt Registrar.
14. The Will Ext. DW-2/A is dated 17.5.1996. The defendant has duly proved the execution of the Will Ext. DW-2/A. The Will was scribed by DW-2 Niranjan Dass Mahant in the Court premises. DW-3 Pardeep Sharma was the marginal witness along with Sudhir Bhatnagar. The Will was scribed by Lal Singh without any undue influence. The Will was also registered before the Sub Registrar, Kullu. It has come in the evidence that the defendant was looking after Lal Singh. PW-1 Ram Dei has admitted that Lal Singh used to reside with defendant. A specific suggestion put to DW-1 Chinta Mani that Lal Singh has suffered paralytic attack in the year 1994 was denied by the defendant. According to her, he was in sound state of disposing mind. The contents of the Will were read over and explained to Lal Singh. He thereafter signed the same and after that marginal witnesses ::: Downloaded on - 15/04/2017 20:59:51 :::HCHP
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signed the Will. The same procedure was followed before the Sub Registrar, Kullu. It is also proved from Ext. DA, copy of Parivar Register that Lal Singh, Ram Dei and .
Chinta Mani were residing together at Village Tegu Behar, Shamshi. Merely that the marginal witnesses were from the same locality or same village where Lal Singh used to reside would not cast doubt on the execution of the Will. The Courts below have correctly appreciated the oral as well as documentary evidence on record. The of Will dated 17.5.1996 is validly executed by Lal Singh. The Will was executed by Lal Singh in sound disposing state of mind. The substantial questions of law are answered rt accordingly.
Consequently, there is no merit in this appeal and the same is dismissed, so also the pending application(s), if any."
51. There cannot be any quarrel with the aforesaid observations made by the Hon'ble Apex Court that court does not sit in appeal over the right or wrong of the testator's decision and role of Court is very limited to examine whether the instrument propounded as the last will of the deceased is or is not that by the testator and whether it is product of the free and sound disposing mind.
52. In the instant case perusal of detailed discussion made herein above would clearly demonstrate that this Court solely with ::: Downloaded on - 15/04/2017 20:59:51 :::HCHP
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a view to ascertain that the judgments passed by the courts below are based upon the correct appreciation of evidence .
available on record undertook an exercise to examine the evidence be it ocular or documentary on record to explore whether testator executed will Ext.DW2/A with free and sound disposing mind or not? Since in the specific case, appellant of plaintiff had raised plea that Will is a forged and fictitious document shrouded by suspicious circumstances, it was rt incumbent upon the court to examine the material points to reach just and fair conclusion, hence, law relied upon by the counsel representing the respondent does not appear to be of any help and cannot be made applicable in the present case.
53. At this stage, it would be appropriate to deal with the specific objection raised by the learned counsel representing the respondents qua maintainability and jurisdiction of this Court, while examining the concurrent findings returned by both the Courts below, Mr. Sood, had invited attention of this Court to the judgment passed by Hon'ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264, which reads as follows:-
"16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of ::: Downloaded on - 15/04/2017 20:59:51 :::HCHP
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fact that plaintiffs have established their right in 'A' schedule property. In the light of concurrent findings of fact, no substantial questions of law arose in the High .
Court and there was no substantial ground for re-
appreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the 'A' schedule property for road and that she could not have full fledged right and on that premise proceeded to hold that declaration to plaintiffs' right of cannot be granted. In exercise of jurisdiction under Section 100 C.P.C., concurrent findings of fact cannot be upset by the High Court unless the findings so recorded rt are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained."
Perusal of the judgment (supra), suggests that in exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the finding so recorded are shown to be perverse. There can be no quarrel (dispute) with regard to aforesaid observation made by the Court and true it is that in normal circumstances High Courts, while exercising powers under Section 100 CPC, are restrained from re-appreciating the evidence available on record, but as emerges from the case referred above, there is no complete bar for this Court to upset the ::: Downloaded on - 15/04/2017 20:59:51 :::HCHP
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concurrent findings of the Courts below, if the same appears to be perverse.
.
54. In this regard, reliance is placed upon judgment passed by Hon'ble Apex Court in Sebastio Luis Fernandes (Dead) through LRs and Others vs. K.V.P. Shastri (Dead) Through LRs and Others, (2013) 15 SCC 161, wherein the Court held:-
of "35. The learned counsel for the defendants relied on the judgment of this Court in Hero Vinoth (minor) v.
rt Seshammal[10], wherein the principles relating to Section 100 of the CPC were summarized in para 24, which is extracted below : (SCC pp.556-6) "24. The principles relating to Section 100 CPC relevant for this case may be summarised thus:
(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a ::: Downloaded on - 15/04/2017 20:59:51 :::HCHP
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mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of .
parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal of position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either rt ignoring or acting contrary to such legal principle.
In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
(iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, ::: Downloaded on - 15/04/2017 20:59:51 :::HCHP
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but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
.
We have to place reliance on the afore-mentioned case to hold that the High Court has framed substantial questions of law as per Section 100 of the CPC, and there is no error in the judgment of the High Court in this regard and therefore, there is no need for this Court to of interfere with the same."
55. In the aforesaid case, Hon'ble Apex Court has rt interpreted the principles relating to Section 100CPC, wherein it has been concluded that general rule is that the High Court will not interfere with the concurrent findings of the Courts below. But it is not absolute rule. If it appears to the Court that Courts below have ignored material evidence and have drawn wrong inference on the proved fact by applying the law erroneously, Court, exercising powers under Section100 CPC, can certainly re-appreciate the evidence and as such, it cannot be concluded that the power of re-appreciation of evidence available on record under Section 100 CPC is totally barred, if there is a concurrent finding from both the Courts below.
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56. In the present case, during arguments, learned counsel representing the appellant, has been successful in persuading this .
Court to look into the evidence, which prima-facie suggested that while passing judgments and decrees, both the Courts below failed to appreciate evidence on record. Apart from above, it also appears that both the Courts below, while recording findings failed of to interpret the provisions of law applicable in the present case in its right perspective. Hence, this Court was compelled, in the peculiar facts and rt circumstances, to re-examine/re-appreciate the evidence available on record despite there being concurrent finding on the fact as well as law by both the Courts below.
57. Consequently, in view of the aforesaid discussion as well as law discussed hereinabove passed by the Hon'ble Apex Court as well as High Courts, I have no hesitation to conclude that the facts and circumstances of the present case clearly suggest that will Ex.DW2/A is forged and fictitious document surrounded by the suspicious circumstances and cannot be given effect to. The defendants-propounder of the Will have failed to dispel the notion that will is not surrounded by suspicious circumstances, rather evidence available on record suggest that the same is a result of ::: Downloaded on - 15/04/2017 20:59:51 :::HCHP
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fraud/undue influence and cannot be relied upon. To the contrary, plaintiffs have successfully proved on record that the will Ex.DW2/A is .
shrouded by suspicious circumstances, which has persuaded this court to declare that will Ex.DW2/A is null and void and cannot be given effect to being forged and fictitious document surrounded by suspicious circumstances.
of
58. Accordingly, the judgment and decree passed by both the Courts below are quashed and set-aside. The appeal is rt accordingly allowed. Needless to say that since plaintiff has been non-suited by the court below on the basis of execution of Will allegedly executed in favour of defendant No. 10 by the late Shri Roshan Lal, courts below would proceed ahead with the suit filed by the plaintiff under Section 4 of Indian Partition Act ignoring the Will as the same as been held to be null and void, without getting influenced by observations, if any, made in this judgment.
9th August, 2016 (Sandeep Sharma),
Manjit Judge.
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