Himachal Pradesh High Court
Chaitru & Another vs Kali Dass & Others on 20 September, 2024
Author: Virender Singh
Bench: Virender Singh
1 ( 2024:HHC:8884 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.70 of 1995 Reserved on : 30th August, 2024 Decided on : 20th September, 2024 .
Chaitru & Another .....Appellants Versus Kali Dass & Others .....Respondents Coram The Hon'ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 Yes.
For the appellants : Mr. K.D. Sood, Senior Advocate with Mr. Vivek Thakur, Advocate.
For the respondents : Mr. Sunil Mohan Goel, Advocate.
Virender Singh, Judge.
Appellants have preferred the present Regular Second Appeal, under Section 100 of the Code of Civil Procedure (hereinafter referred to as 'the CPC'), against the judgment and decree dated 09.11.1994, passed by the Court of learned Additional District Judge, Kullu, District Kullu, H.P. (hereinafter referred to as the 'First Appellate Court'), in Civil Appeal No.71 of 1991, titled as Chaitru & Another Versus Kali Dass & Another.
1Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
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2. Vide judgment and decree dated 09.11.1994, the learned First Appellate Court has dismissed the appeal preferred by the appellants, against the judgment and .
decree dated 15.11.1991, passed by the Court of learned Senior Sub Judge, Kullu, District Kullu, H.P. (hereinafter referred to as the 'trial Court'), in Civil Suit No.58 of 1988, titled as Cheitru & Another versus Kali Dass & Others.
3. Vide judgment and decree dated 15.11.1991, the learned trial Court has dismissed the suit filed by the plaintiffs against the defendants.
4. For the sake of convenience, the parties to the present lis are hereinafter referred to, in the same manner, as were, referred to, by the learned trial Court.
5. Brief facts, leading to the filing of the present appeal, before this Court, may be summed up, as under:-
5.1. Plaintiffs have filed the suit for declaration to the effect that the plaintiffs, being the agnate of deceased Sh.
Lebhu, are owners-in-possession of 2/3rd share in the property left by the deceased and entitled to remain in possession of the same, with consequential relief of injunction, restraining the defendants from causing any sort of unlawful interference and from dispossessing them from the land detailed below:-
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i) Land measuring 3-5 bighas, being 1/2 share of 1and measuring 6-10 bighas, comprised under khata khatauni No.77/132 and 133, khasra Nos.514 and 577, incorporated in the jamabandi for the year 1982-83 of Phati Shirar, Kothi Raison, Tehsil and Distt. Kullu.
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b) Land measuring 0-18 biswas, comprised under khasra No.2900, khata khatauni No.101/252, incorporated in the Jamabandi for the year 1981-82 of Phati and Kothi Mandalgarh, Tehsil and District Kullu.
c) land measuring 5-13-8 bighas out of the land measuring 14-18-15 bighas comprised under khata khatauni No.100/248 to 251, khasra Nos. 2661, 2663, 2780, 2854, 2876, 2962, 2964, 2984, 2986, 3004, 3020, 3038, 3059, 3064, 3092, 3120, 3172, 3178, 3315, 3327, 2781, 2853, 2884, 2961, 2981, 3005, 3119, 3081, 3152, 3164, 3169, 3177, 3316, 2662, 3328, kittas 35, incorporated in the jamabandi for the year 1981-82 of Phati and Kothi Mandalgarh, Tehsil and Distt. Kullu.
d) 1/2 share of 2½ storeyed house shown in the site plan by letters AGHJK alongwith Verandah, standing on Abadi of Phati Abadi, village Karal, Phati and Kothi Mandalgarh, Tehsil and Distt.Kullu, bounded as follows:-
North - A to G measuring 33 feet, by Abadi and House of Nathu and Kalu etc. West:-J to K measuring 28 feet by the Shahal (shed) of Ehanti etc. East:- GH to J measuring 38 feet by the Abadi of Smt. Bhanti, South: A to K measuring 38 feat by the House of Tulsu Ram.
e) 1/3rd share of Khal measuring 21' x 22', shown in the plan attachad with the plaint by letters MNOP, situated in village Karal, Phati and Kothi Mandalgarh, Tehsil and Distt. Kullu, towards the eastern western side of the above said house.
(hereinafter referred to as the 'suit property') ::: Downloaded on - 20/09/2024 20:39:34 :::CIS 4 ( 2024:HHC:8884 ) 5.2. The suit has been filed on the ground that Shri Lebhu died issueless on 10.12.1984. After his death, plaintiffs and defendant No.1, being agnates of the .
deceased, have inherited his property in equal shares and the plaintiffs have become owners-in-possession of 2/3 rd share in the suit property left by deceased Lebhu.
5.3. It is the further case of the plaintiffs that Shri Dagu, father of Lebhu had two sons namely Lebhu and Hirdu. Hirdu had two sons namely; Tulku, father of defendant No.1 and plaintiff No.2; and Shri Runku, father of plaintiff No.1. Both Tulku and Runku had predeceased Lebhu. As such, after the death of Lebhu, the plaintiffs have inherited 2/3rd share out of the suit property and as such, they are owner in possession of the same.
5.4. As per the plaintiffs, after the death of Lebhu, defendant No.1, has set up a forged and fictitious un- registered Will, dated 6.12.1984, allegedly executed by Lebhu, in his favour, on the basis of which, he got mutations No.1004 & 1126, dated 19.12.84, attested and sanctioned in his favour.
5.5 It is the further case of the plaintiffs that appeals were preferred before the Collector Kullu, against the said mutations, but, the same were disposed off and the matter ::: Downloaded on - 20/09/2024 20:39:34 :::CIS 5 ( 2024:HHC:8884 ) was remanded to A.C. 2nd Grade, Kullu, with a direction to decide the matter afresh. Thereafter, the Assistant Collector 2nd Grade, on the basis of the aforesaid Will, has .
illegally attested and sanctioned the aforesaid mutations.
5.6. As per the plaintiffs, Shri Lebhu never executed any Will in favour of defendant No.1, nor, there was any occasion or need for the deceased to execute the alleged Will, in favour of defendant No.1, as relation between the deceased and defendant No.1 were strained for the last so many years.
5.7. Asserting the fact that the plaintiffs had rendered whole heartedly and devoted services to the deceased, whereas, defendant No.1, never rendered any sort of service to the deceased, as such, Will is stated to be not executed by the testator, with his sound disposing state of mind. The said Will is also stated to be allegedly executed 3-4 days prior to the death of Shri Lebhu.
5.8. Lastly, it has been pleaded that on the basis of mutations, defendant No.1, has now started interfering in the peaceful possession of the plaintiffs over the suit property, as such, the suit has been filed.
6. On the basis of the above facts, a prayer has been made to decree the suit, as prayed for.
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7. When put to notice, the suit was contested by defendants, by filing the written statement.
7.1. In the written statement, filed by defendant .
No.1, he has taken the preliminary objections, that the plaintiffs have no locus standi and cause of action to file and maintain the present suit; the suit of the plaintiffs is not maintainable, in the present form; the suit is barred by limitation; the plaintiffs are estopped to file the present suit, by their act and conduct; the suit is bad for non-joinder of necessary parties; and the suit has not been properly valued for the purposes of Court fee and jurisdiction.
7.2. On merits, the suit has been contested by pleading that out of love and affection and in lieu of the past and future services rendered by defendant No.1, Lebhu has executed Will dated 6.12.1984, in his favour and on the basis of the said Will, he has claimed ownership and possession over the suit property. He has specifically denied that his relationship with Lebhu Ram were strained.
Hence, he has prayed that the suit may kindly be dismissed.
8. Defendant No.2, has filed separate written statement, by admitting the claim of the plaintiffs.
9. The plaintiffs filed the replication to the written statement, filed by defendant No.1, by denying the ::: Downloaded on - 20/09/2024 20:39:34 :::CIS 7 ( 2024:HHC:8884 ) preliminary objections, as well as, the contents of the written statement, by virtue of which, the suit has been contested, reasserting that of the plaint.
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10. From the pleadings of the parties, the learned trial Court has framed the following issues, vide order dated 6.7.1988: -
(1) Whether the plaintiffs have no locus standi and cause of action to maintain this suit? OPD (2) Whether this suit is not maintainable as alleged?
OPD (3) Whether this suit is within limitation? OPP (4) Whether the plaintiffs are estopped by their act and conduct from filing this suit? OPD (5) Whether this suit is bad for non joinder of the necessary parties? OPD (6) Whether this suit has not been properly valued for the purposes of court fees and jurisdiction? If so what is its correction valuation for this purpose. OP Parties (7) Whether Lebhu deceased executed a valid Will in favour of defendant No.1? OPD (8) If issue No.7 is not proved, who are entitled to inherit the property left by deceased Lebhu?
OPP
(9) Relief.
11. Thereafter, the parties to the lis were directed to adduce evidence.
12. After closure of the evidence, upon hearing the learned counsel for the parties, the learned trial Court has ::: Downloaded on - 20/09/2024 20:39:34 :::CIS 8 ( 2024:HHC:8884 ) dismissed the suit of the plaintiffs, vide judgment and decree, dated 15.11.1991.
13. Aggrieved from the said judgment and decree, .
the plaintiffs have preferred appeal, before the learned First Appellate Court, who had dismissed the appeal vide judgment and decree dated 09.11.1994.
14. Against the said judgment and decree, the present Regular Second Appeal has been preferred, before this Court, on the ground that the Courts below have misconstrued and misread the pleadings of the parties, as well as, the oral and documentary evidence. According to the appellants, Will Ex.DW-2/A, set up by defendants, was neither legal nor its due execution had been proved, in accordance with law.
14.1. As per the appellants-plaintiffs, the will is shrouded by several suspicious circumstances, which have not been dispelled by the beneficiary.
14.2. According to the appellants-plaintiffs, it has been proved on record that testator was an old man, suffering from Asthama and other ailments, the immediate residents of the area have not joined in the execution of the Will, and the testator had died 3-4 days, after the execution of the alleged Will.
::: Downloaded on - 20/09/2024 20:39:34 :::CIS9 ( 2024:HHC:8884 ) 14.3. Heavily relying upon the statement of PW-7, Government Examiner of Questioned Documents, a prayer has been made to allow the appeal, by setting aside the .
judgment and decree passed by the learned trial Court and affirmed by the learned First Appellate Court. A prayer has also been made to decree the suit, as prayed for.
15. The appeal has been admitted on the following substantial questions of law, by this Court, vide order dated 25.3.1995:- r "1. Whether the document of title Ext. DW2/A has been mis-read and misconstrued and could not be relied upon having not been duly proved in accordance with Section 63 of the Indian Succession Act particularly when the testator and the attesting witnesses had not signed the will in the presence of each other?
2. Whether the Will Ex.DW2/A was a forged and fictitious documents and could not be relied upon particularly when the circumstances attached to the execution of the Will have neither been explained or the will was proved in accordance with law?"
16. The appeal was allowed, by this Court, vide judgment dated 28.11.2006 and the judgments and decrees passed by the learned trial Court and learned First Appellate Court, had been set aside and the suit of the plaintiff was decreed, by holding that the plaintiffs had inherited the estate of deceased Labhu, along with respondent-defendant No.1 Kali Dass, in equal shares. Decree for joint possession ::: Downloaded on - 20/09/2024 20:39:34 :::CIS 10 ( 2024:HHC:8884 ) to the extent of their share was also passed in favour of the appellants-plaintiffs and against respondent-defendant No.1 Kali Dass.
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17. The said judgment and decree has been assailed by defendant Kali Dass, by way of Civil Appeal No.4127 of 2008, before the Hon'ble Supreme Court, which has been allowed by setting aside the judgment and decree passed by this Court and Hon'ble Apex Court has remanded the case back to this Court to examine the appeal afresh in accordance with law. Operative part of the judgment of Hon'ble Apex Court, is reproduced, as under:-
" Apart from that what were contradictions in the statement of scribe and attesting witness had not been referred to. The reason adopted to rely on witnesses by the first appellate court was that they were respectable person of the village being Lambardar and Uppradhan. There was no reason for them to speak a lie. Will had been signed by which pen is not very material contradiction as the witness had deposed after lapse of time in the court as such there could be such minor discrepancy. It could also not be a substantial ground that a person had been summoned to scribe document who was residing at a village two kms. away and whereas literate persons were available in the village itself when Will had been executed, without examining evidentiary value of deposition it was not proper to discard the same only on the aforesaid ground. Minor discrepancies have been given undue importance. The various reasons given by the trial court and the first appellate court had not been adverted to by the High Court. The High Court had reversed the judgment and decree of the two courts without finding perversity in appreciation of evidence. Hence, we set aside the judgment and decree passed by the High Court and remit the case back to the ::: Downloaded on - 20/09/2024 20:39:34 :::CIS 11 ( 2024:HHC:8884 ) High Court to examine the appeal afresh in accordance with law. In case the High Court decide again to reverse the judgment and decree, it would be its bounden duty to access evidence and give the reasons for disbelieving witnesses considering reasoning given by the .
two courts below and also to consider the scope of interference within the parameters of Section 100 of the Code of Civil Procedure, 1908. Appeal is accordingly allowed. We remit the matter to the High Court for decision afresh in accordance with law after hearing the parties. We make it clear that we have not expressed any opinion on the merits of the case. No costs.
(Self emphasis supplied)
18. The plaintiffs are before this Court, in Regular Second Appeal, against the concurrent findings, as their suit has been dismissed, by the learned trial Court and the appeal has also been dismissed, by the learned First Appellate Court.
19. Hon'ble Apex Court in Major Singh Versus Rattan Singh (Dead) by LRs & Others, (1997) 3 Supreme Court Cases 546, has elaborately discussed the situation, in which, even the concurrent findings can be interfered with by the High Court in Regular Second Appeal.
Relevant paragraph 3 of the judgment, is reproduced, as under:-
"3. Learned counsel for the appellant has contended that the High Court could not interfere under Section 100, CPC since the suspicious features of the will are questions of facts. The trial Court and the appellate Court had considered the suspicious feature and were not inclined to interfere. It is the duty of the propounder of the Will to establish that Will was ::: Downloaded on - 20/09/2024 20:39:34 :::CIS 12 ( 2024:HHC:8884 ) validly executed removing all the suspicious features satisfying conscience of the Court. In that behalf, the high Court was not justified in interfering in the second appeal as there was on substantial question of law for decision under Section 100 CPC. It is seen that it is an .
admitted position that Rattan Singh, on coming to know that his brother was unwell, had gone from Calcutta to see him. After his coming, the Will came to be executed and the execution of the Will also was not disputed. The only question is: whether the Will came to be executed in the normal circumstances? The courts below relied heavily on two suspicious features, namely, the Will was not produced at the earliest point of them, it was produced sometime before the trial. secondly, the at testators were disbelieved on two grounds, namely, that Hari Singh, one of the at testators had not disclosed that the Will was not executed when the mutation was effected in his presence. The High Court has explained that the mutation was not properly removed and that there was no reason to disbelieve that fact. The High Court had perused the original as well as the photocopy of the will produced in the trial Court in the first instance. The High Court has found that there is no interpolation in the original Will. Therefore, the rejection of the evidence of the attestaor, Hari Singh's evidence was found to be not correct. As regards the other attestator- witness, by name Gurdev Singh, It was disbelieved on the ground that he filed a suit in a litigation against Jeet Singh. It was hardly a ground to disbelieve the evidence of the attestator's evidence. Under these circumstances, when the courts below had rejected and disbelieve the evidence on the ground that the propounder had not properly discharged his duty, it is the duty of the High Court to consider whether the reasons given by the courts below were sustainable in law. In view of the above reasoning of the trial Court as affirmed by the appellate Court, necessarily the High Court requires to go into that question to test the reasons. in this perspective, the High Court has rightly gone into that question and found that the reasons given by the courts below are flimsy. Thus there is substantial question of law that has arisen for consideration and the High Court has rightly ::: Downloaded on - 20/09/2024 20:39:34 :::CIS 13 ( 2024:HHC:8884 ) considered the question. We are entirely agree with the High Court."
20. It would be apt to reproduce paragraphs 12 to 15 .
of the judgment in Santosh Hazari Versus Purushottam Tiwari (deceased) by LRs (2001) 3 Supreme Court Cases 179, as under:-
"12. The phrase substantial question of law, as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying question of law, means - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely. However, it is clear that the Legislature has chosen not to qualify the scope of substantial question of law by suffixing the words of general importance as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta & Anr. Vs. T. Ram Ditta, the phrase substantial question of law as it was employed in the last clause of the then existing Section 110 of the C.P.C. (since omitted by the Amendment Act, 1973) came up for consideration and Their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. Vs. The Century Spinning and Manufacuring Co., Ltd., the Constitution Bench expressed agreement with the following view taken by a Full Bench of Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju:
"When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative view, then the question would be a substantial ::: Downloaded on - 20/09/2024 20:39:34 :::CIS 14 ( 2024:HHC:8884 ) question of law. On the other hand if the question was practically covered by the decision of the highest Court or if the general principles to be applied in determining the question are well settled and the only question was of applying those .
principles to the particular fact of the case it would not be a substantial question of law.
and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:-
"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
13. In Deputy Commr., Hardoi, in charge Court of Wards, Bharawan Estate Vs. Rama Krishna Narain & Ors., AIR 1953 SC 521, also it was held that a question of law of importance to the parties was a substantial question of law entitling the appellant to certificate under (the then) Section 110 of the Code.
14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it ::: Downloaded on - 20/09/2024 20:39:34 :::CIS 15 ( 2024:HHC:8884 ) must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and .
circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.
15. A perusal of the judgment of the trial Court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate Court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. The task of an appellate Court affirming the findings of the trial Court is an easier one. The appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi & Ors. Vs. Bijendra Narain Choudhary. We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage ::: Downloaded on - 20/09/2024 20:39:34 :::CIS 16 ( 2024:HHC:8884 ) adopted by the appellate Court for shirking the duty cast on it. While writing a judgment of reversal the appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate .
Court, more so when the findings are based on oral evidence recorded by the same presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of fact. The rule is - and it is nothing more than a rule of practice - that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judges notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact. Secondly, while reversing a finding of fact the appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it. We need only remind the first appellate Courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one."
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21. In Santosh Hazari's case (supra), the Supreme Court has held that the judgment of First Appellate Court .
must display conscious application of mind and record findings supported by the reasons on all issues and contentions, whereas, in the present case, learned First Appellate Court has affirmed the findings on the ground that the plaintiffs are married ladies and settled in the matrimonial homes. In addition to this, the act of testator is held to be natural to dis-inherit the grand-daughters, who, according to the learned First Appellate Court, no more belonged to his family.
22. This view has again been reiterated by the Hon'ble Apex Court in Govindaraju Versus Mariamman, (2005) 2 Supreme Court Cases 500. In this case, apart from discussing the provisions of Section 100, the Hon'ble Apex Court, has also elaborately discussed the term 'perverse'. Relevant paragraphs 16 to 19 of the judgment, are reproduced, as under:-
"16. As per settled law, the scope of exercise of the jurisdiction by the High Court in Second Appeal under Section 100 is limited to the substantial questions of law framed at the time of admission of the appeal or additional substantial questions of law framed at a later date after recording reasons for the same. It was observed in Santosh Hazari's case (supra) that a point of law which admits of no two opinions may be a ::: Downloaded on - 20/09/2024 20:39:34 :::CIS 18 ( 2024:HHC:8884 ) proposition of law but cannot be a substantial question of law. To be a 'substantial' question of law must be debatable, not previously settled by law of the land or a binding precedent and answer to the same will have a material bearing as to the rights of the parties before the Court. As .
to what would be the question of law "involving in the case", it was observed that to be a question of law 'involving in the case' there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by the court of facts and it must be necessary to decide that question of law for a just and proper decision between the parties.
17. After perusal of the findings recorded by the courts below and the High Court, we are of the opinion that the questions of law framed at the time of admission of the appeal were not questions of substance arising from the findings record\ed by the courts of fact. The court of fact recorded the finding that the title in the suit property did not pass to Veeramuthu Moopanar and the sale deed dated 1.7.1940 executed by him in favour of his two daughters was a nominal and a sham transaction. The court of fact had also come to the conclusion that there was a divorce between Thayarammal and Sengamalai Moopanar under custom and the respondent herein had failed to prove that Ganapathy Moopanar was the son of Sengamalai Moopanar from his first wife. After recording this finding of fact, the court of fact held that since Ganapathy Moopanar was not proved to be the son of Sengamalai Moopanar and that a divorce had taken place between Thayarammal and Sengamalai Moopanar, Ganapathy Moopanar could not succeed to the estate of Thayarammal being the heir of her husband under Section 15(1)(b) of the Act. That in the absence of any direct heir, the property of Thayarammal reverted back to the heirs of her father i.e. the family members of the brother of her father. The sale effected by Ganapathy Moopanar in favour of the respondent did not convey any title as Ganapathy Moopanar was not proved to be the owner of the property.
18. The High Court on re-appreciation of evidence recorded a finding to the contrary and held that the marriage between Thayarammal ::: Downloaded on - 20/09/2024 20:39:34 :::CIS 19 ( 2024:HHC:8884 ) and Sengamalai Moopanar had not been dissolved. It further held that Ganapathy Moopanar was the son of Sengamalai Moopanar from his previous wife. That the sale executed by Veeramuthu Moopanar dated 1.7.1940 in favour of his two daughters was not a nominal and sham .
transaction. That it conveyed a valid title of the suit property to his two daughters. As the daughters had not inherited the property but purchased the same from their father, they became the absolute owners of the same.
Thayarammal had inherited the share of her sister after her death. As Thayarammal had died issueless and had a step-son Ganapathy Moopanar from her husband, Ganapathy Moopanar inherited the suit property being the heir of her husband under Section 15(1)(b) of the Act and succeeded to the estate of Thayarammal. That Ganapathy Moopanar had a conveyable title in the suit property and the sale made by him in favour of the respondent was valid and decreed the suit. This was done on re-appreciation of evidence present on record. Questions of law which had been framed at the time of admission and were referred and reproduced in the judgment were not adverted to while deciding the appeal. No finding was recorded on those questions. After reproducing the questions of law, the learned Single Judge did not advert to either of them or record findings on them. The learned Single Judge proceeded to decide the appeal thereafter as if after framing the questions of law the High Court gets the jurisdiction to re-
appreciate the evidence and come to a conclusion other than the one recorded by the courts of fact. As observed by this Court in Santosh Hazari's case (supra) for the question of law to be involved in the case, first a foundation for it has to be laid in the pleadings and the question should emerge from the sustainable findings of facts arrived at by the court of fact and it must be necessary to decide that question of law for a just and proper decision of the case. In the present case, the learned Single Judge proceeded to re-appreciate the evidence and on re-appreciating the same, set aside the findings referred to above on facts. On reversal of the findings referred to above on facts, the High Court came to the conclusion that Ganapathy Moopanar would inherit the property under Section 15(1)(b) being the heir of the husband of Thayarammal and not under Section 15(2)(a) ::: Downloaded on - 20/09/2024 20:39:34 :::CIS 20 ( 2024:HHC:8884 ) under which property was to revert back to the heirs of her father. The questions of law which were framed at the time of admission of the appeal were not decided by the High Court.
19. Even if the High Court was of the view that .
the findings of fact recorded by the courts below were wrong, in our opinion, these findings of fact could not be disturbed without coming to the conclusion that the findings recorded were perverse i.e. based on misreading of evidence or based on no evidence. The High Court did not come to such a conclusion. The learned Singh Judge also did not come to the conclusion that the appeal involved other substantial questions of law or formulate the same.
23. Hon'ble Apex Court in Hero Vinoth (Minor) Versus Seshammal, (2006) 5 Supreme Court Cases 545, has held that an entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the case. It will depend upon the facts and circumstance of each case, whether the question of law is a substantial one and involved in the case or not. Relevant paragraphs 20 to 23 of the judgment, are reproduced, as under:-
"20. The question of law raised will not be considered as a substantial question of law, if it stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court. Where the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. There mere appreciation of facts, the documentary evidence or the meaning of entries and the contents of the documents cannot be held to be raising a ::: Downloaded on - 20/09/2024 20:39:34 :::CIS 21 ( 2024:HHC:8884 ) substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the fact appellate court is shown to have exercised its .
discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India v. Ramkrishna Govind Morey held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference.
21. The phrase "substantial question of law", as occurring in the amended Section 100 of the CPC is not defined in the Code. The word substantial, as qualifying "question of law", means of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. T. Ram Ditta, the phrase 'substantial question of law' as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Sri Chunilal's case (supra), the Constitution Bench expressed agreement with the following view taken by a full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju:
"When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the ::: Downloaded on - 20/09/2024 20:39:34 :::CIS 22 ( 2024:HHC:8884 ) question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to be particular facts of the .
case it would not be a substantial question of law."
This Court laid down the following test as proper test, for determining whether a question of law raised in the case is substantial"
"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
22. In Dy. Commnr. Hardoi v. Rama Krishna Narain also it was held that a question of law of importance to the parties was a substantial question of law entitling the appellant to a certificate under (the then) Section 100 of the CPC.
23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It ::: Downloaded on - 20/09/2024 20:39:34 :::CIS 23 ( 2024:HHC:8884 ) will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all .
stages and impelling necessity of avoiding prolongation in the life of any lis.
24. Hon'ble Apex Court in Arulvelu and Another Versus State represented by the Public Prosecutor & Another, (2009) 10 Supreme Court Cases 206, has elaborately discussed the term 'perverse findings'.
Relevant paragraphs 24 to 30 of the judgment, are reproduced, as under:-
"24. The expression `perverse' has been dealt with in number of cases. In Gaya Din (Dead) through LRs. & Others v. Hanuman Prasad (Dead) through LRs. & Others (2001) 1 SCC 501 this Court observed that the expression `perverse' means that the findings of the subordinate authority are not supported by the evidence brought on record or they are against the law or suffer from the vice of procedural irregularity.
25. In Parry's (Calcutta ) Employees' Union v. Parry & Co. Ltd. & Others AIR 1966 Cal. 31, the Court observed that `perverse finding' means a finding which is not only against the weight of evidence but is altogether against the evidence itself. In Triveni Rubber & Plastics v. CCE, the Court observed that this is not a case where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings.
26. In M. S. Narayanagouda v. Girijamma & Another AIR 1977 Kar. 58, the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough, the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is ::: Downloaded on - 20/09/2024 20:39:34 :::CIS 24 ( 2024:HHC:8884 ) altogether against the evidence. In Godfrey v. Godfrey, the Court defined `perverse' as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct etc. .
27. The expression "perverse" has been defined by various dictionaries in the following manner:
1. Oxford Advanced Learner's Dictionary of Current English Sixth Edition "Perverse - Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable."
2. Longman Dictionary of Contemporary English - International Edition "Perverse - Deliberately departing from what is normal and reasonable."
3. The New Oxford Dictionary of English -
1998 Edition "Perverse - Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law."
4. New Webster's Dictionary of the English Language (Deluxe Encyclopedic Edition) "Perverse - Purposely deviating from accepted or expected behavior or opinion;
wicked or wayward; stubborn; cross or petulant."
5. Stroud's Judicial Dictionary of Words & Phrases, Fourth Edition "Perverse - A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence."
28. In Shailendra Pratap & Another v. State of U.P. (2003) 1 SCC 761, the Court observed thus:
"We are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High ::: Downloaded on - 20/09/2024 20:39:34 :::CIS 25 ( 2024:HHC:8884 ) Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity."
29. In Kuldeep Singh v. The Commissioner of .
Police & Others (1999) 2 SCC 10, the Court while dealing with the scope of Articles 32 and 226 of the Constitution observed as under:
"9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.
10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."
30. The meaning of `perverse' has been examined in H. B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others 1992 Supp (2) SCC 312, this Court observed as under:
"7. In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re-appreciate the primary or perceptive facts which were otherwise within the domain of the fact- finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax ::: Downloaded on - 20/09/2024 20:39:34 :::CIS 26 ( 2024:HHC:8884 ) constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness -
as distinguished from the legal
.
permissibility - of the primary or
perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law."
25. Hon'ble r Apex toCourt in Rajasthan Transport Corporation & Another Versus Bajrang Lal, State 2014(3) Shim.LC 1472, has held that the High Court may entertain second appeal even, on the question of facts, where, the factual findings are found to be perverse.
Meaning thereby, if this Court comes to the conclusion that the findings are perverse, then, the concurrent findings, recorded by both the Courts below, can be interfered with.
26. Being guided by the said principle, now, this Court would proceed further to examine, whether the learned Courts below have rightly appreciated the pleadings, as well as, the evidence, so adduced by the parties or not.
27. In this case, the learned trial Court, while dismissing the suit, has held that Lebhu has executed a ::: Downloaded on - 20/09/2024 20:39:34 :::CIS 27 ( 2024:HHC:8884 ) valid Will in favour of defendant No.1 and the alleged suspicious circumstances, as pointed out by the plaintiffs, in the case, have been discarded.
.
28. Similarly, the learned First Appellate Court has also upheld those findings by moving a step further by holding that the plaintiffs are married ladies and settled in their matrimonial houses. Relevant paragraph 17 of the judgment of learned First Appellate Court, is reproduced, as under:- r "17. Otherwise also, the plaintiffs-appellants are admittedly married ladies and settled in their matrimonial houses. They had not been residing with Lebhu. The defendant-respondent No.1 Kali Dass is the only male member in such family apart from Lebhu. So both of them were residing in the same house. It is obvious that defendant-
respondent No.1 had been looking after real brother of his grandfather and cultivating his lands etc due to old age of Lebhu. It was, in these circumstances, but natural that Lebhu would have given his property to his said grand- son and not to his grand-daughters who no more belonged to his family. The suit property is obviously in exclusive possession of the defendant-respondent NO.1 after the death of Lebju as the plaintiffs-appellants are not residing there. It was due to such reason that Lebhu executed the Will Ex.PW-2/A in favour of the defendant-respondent No.1 to the exclusion of the plaintiffs-appellants. Such Will, in my view, is the result of natural dis-position of his property by Lebhu and has been rightly executed by Lebhu in his wisdom. The learned trial Court has correctly appreciated the evidence on record in this behalf. As such, the point is answered in favour of the defendant-respondent No.1, and against the plaintiffs-appellants."
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29. The learned First Appellate Court, while upholding the findings of the learned trial Court, qua the Will, has held that on perusing the admitted signatures of .
Lebhu @ Lebhu Ram, on Exts.PW-7/A, PW-3/A and PW-5/A, no dis-similarity has been noticed and held that the same appeared to have been written by the same person, even to the naked eye. While holding so, the evidence of the expert, has been discarded merely on the ground that the opinion of handwriting expert cannot be taken to be conclusive, as, the science of judging handwriting by comparison is not very precise.
30. Learned First Appellate Court has discussed the suspicious circumstances that in the first line of the Will Ex.DW-2/A only 'Labbu' is mentioned, whereas, the signatures have been written in the bottom as 'Labhu Ram'.
While nagating this plea of the plaintiffs, the learned First Appellate Court has placed reliance upon sale deed Ex.PW-
5/A, where the name of the vendor has been written as Labhu and not Labhu Ram.
31. The second suspicious circumstance, which has been discussed by the learned First Appellate Court is that, according to the deposition of DW-3, there were illiterate people and Panches in the village of the testator and Will ::: Downloaded on - 20/09/2024 20:39:34 :::CIS 29 ( 2024:HHC:8884 ) has been scribed and attested by the persons belonging to other villages.
32. It has been held by the learned First Appellate .
Court that it is not necessary that the scribe and attesting witnesses have to be from the neighbourhood of the testator or from his village itself, unless it is shown that such witnesses had a special interest in favour of defendant No.1.
33. The third circumstance, which the learned First Appellate Court has discussed, is about the illness of Lebhu and according to the learned First Appellate Court, the evidence is too short to hold that due to Asthma, the testator was incapacitated physically or mentally to execute the Will. During the transaction, Lebhu was having sound state of mind, as such, he has executed the will in favour of defendant No.1.
34. The another circumstance, which had been discussed by the learned First Appellate Court is that the defendant has taken active part in execution of the Will.
35. The other fact, which had been taken into consideration by the learned First Appellate Court to uphold the findings of learned trial Court is that plaintiffs are admittedly married ladies and settled in their matrimonial ::: Downloaded on - 20/09/2024 20:39:34 :::CIS 30 ( 2024:HHC:8884 ) home and were not residing with him, as such, the Will was executed in favour of defendant No.1, who is the only male member in the family.
.
36. By upholding the act of Lebhu, in execution of the alleged Will, in favour of defendant No.1, it has been held that it was natural for the testator to give his property to his grand-sons and not to his grand-daughters, who, no more belonged to his family.
37. In such situation, now, this Court will proceed further to decide the substantial question of law framed in this case.
38. This Court is not in agreement with the findings recorded by the learned First Appellate Court in para 17, as discrimination amongst agnates on account of sex is antithesis to Article 15 of the Constitution of India.
39. There is no evidence, available on record, on the basis of which, the learned First Appellate Court could have derived the presumption that the plaintiffs, being grand daughters, are not entitled for the property of testator. In this case, it is not in dispute that the alleged Will was executed on 6.12.1984, and testator expired on 10.12.1984, i.e. after four days from the alleged execution of Will.
::: Downloaded on - 20/09/2024 20:39:34 :::CIS31 ( 2024:HHC:8884 )
40. Will is a solemn document, which speaks about the intention of the testator, regarding the arrangement, which, he intends to make, with regard to his estate. The .
Will comes into operation after the death of the testator.
41. In other words, it can be said that the Will has to be considered, at the time, when, the testator is not in the land of living, to say about his intention. In such situation, the Court has to take into consideration, all the circumstances, which the testator would have taken into consideration, while executing the Will.
42. The Court has to put itself in the arm chair of the testator to consider all the relevant factors, which have been taken into consideration by the testator and no universal yardstick can be framed, to say that these ingredients, if fulfilled, then, the said document will be considered, as validly executed Will by the testator, with his sound disposing state of mind.
43. Before relying upon the document (Will), as validly executed document, by conscious mind of the testator, it is for the propounder of the document to dispel all the suspicious circumstances.
::: Downloaded on - 20/09/2024 20:39:34 :::CIS32 ( 2024:HHC:8884 )
44. The term 'suspicious circumstance' has nowhere been defined under the Law. However, the same has to be considered according to the circumstances of each case.
.
45. In this case, onus was upon defendant No.1, being propounder of the Will, to prove the due execution of the Will. As per the provisions of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act, before accepting the document, as a Will, the same should have been attested by two witnesses and the propounder is duty bound to examine, atleast one witness, to prove the factum of attestation of Will, by the attesting witnesses.
46. In addition to this, defendant No.1 was also bound to prove that at the time of execution of the Will, the testator was in sound disposing state of mind.
47. To prove the above facts, the evidence of DW-1, propounder, DW-2, Hari Krishan, Scribe and DW-3, Kalu, Numberdar, who has been examined as attested witness is required to be discussed.
48. DW-1, is the person, in whose favour, the testator has allegedly executed the Will. Apart from the fact that the testator was issueless and DW-1 is the only son of his father, this witness has further deposed that as per the custom, the property is being inherited from father to son.
::: Downloaded on - 20/09/2024 20:39:34 :::CIS33 ( 2024:HHC:8884 ) This deposition is not liable to be taken into consideration, as, in order to take the benefit of custom, the same should have specifically been pleaded and proved by leading .
cogent evidence. Simply, making the statement, in the examination-in-chief, without pleading, is not sufficient to take such plea in consideration. As such, the plea is not available to the plaintiffs.
49. Defendant No.1 has also made a futile attempt, to show that the property could only be inherited by the male issue. In the absence of specific pleadings, about the customs, the said deposition is against the provisions of Section 8 of the Hindu Succession Act.
50. Defendant No.1, who appeared in the witness-
box, as DW-1, is the propounder of the Will and when, the mutation proceedings were conducted, by the revenue authorities to enter the mutation, on the basis of the Will, DW-1 has deposed that at the time of execution of the Will, he was present there. This fact, although, has been denied by DW-1, in the cross-examination.
51. Men may tell lie, the document would not. While recording the statement of DW-1, the learned trial Court has ordered that "the defendant is directed to place certified copy of the statements in the mutation proceedings on the ::: Downloaded on - 20/09/2024 20:39:34 :::CIS 34 ( 2024:HHC:8884 ) file." Those statements are placed on the file at page Nos.85 to 95. In those proceedings, defendant Kali Dass has deposed regarding the Will and from his deposition, it .
can be inferred that he has not disputed his presence at the time of alleged execution of the Will by the testator.
52. Presence of defendant No.1 Kali Dass, at the time of execution of the alleged Will, ipso facto, does not create any suspicious circumstance, but, the manner, in which, he has replied the questions, which were put to him, in the cross-examination, gives an occasion for this Court to draw an inference that he was more interested to hide his presence at the time of execution of the Will by the testator, for the reasons best known to him, than to state true facts.
53. From the deposition, as recorded, by the revenue authorities, in the mutation proceedings, it can easily be said that the propounder has taken active part, in the execution of the document, which has been relied upon, by the defendant, as Will of the testator.
54. In the document Ex.DW-2/A, testator has given his age as 62 years. In this document, the testator has not given even the reference of plaintiffs, as well as, proforma defendant No.2. Defendant No.1 has been referred to as ::: Downloaded on - 20/09/2024 20:39:34 :::CIS 35 ( 2024:HHC:8884 ) grand-son of the testator, whereas, plaintiffs are grand-
daughters of Labhu.
55. The document Ex.DW-2/A, which is being .
projected by defendant No.1, as a validly executed Will of the testator, with sound disposing state of mind, has been stated to be signed by Jagarnath and Kalu, (Harijan Lambardar), as witnesses and the same has been scribed by Harikrishan. Out of the persons, who have allegedly been shown as attesting witnesses, one Kalu was examined, by the propounder of the Will, as DW-3.
56. The Hon'ble Apex Court in Pentakota Satyanarayana & Ors versus Pentakota Seetharatnam & Otheres, 2006 (1) Civil Court Cases 563 (SC), has discussed the essentials, which are required to be proved, in order to accept the document, as validly executed Will.
Paragraph 22 of the said judgment is reproduced, as under:-
"22. It is clear from the definition that the attesting witness must state that each of the two witnesses has seen the executor sign or affix his mark to the instrument or has seen some other persons sign the instrument in the presence and by the direction of the executant. The witness should further state that each of the attesting witnesses singed the instrument in the presence of the executant. These are the ingredients of attestation and they have to be proved by the witnesses. The word 'execution' in Section 68 includes attestation as required by law."::: Downloaded on - 20/09/2024 20:39:34 :::CIS
36 ( 2024:HHC:8884 )
57. The Hon'ble Supreme Court in Girja Datt Singh versus Gangotri Datt Singh, AIR 1955 SC 346, has elaborately discussed the term 'attestation'. Relevant .
paragraph 14 of the said judgment, is reproduced, as under:-
"14. It still remains to consider whether the attestation of the signature of the deceased on the will, Ex. A-36 was in accordance with the requirements of Section 63, Indian Succession Act. Section 63 prescribes that:
"(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to 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 .............."
In order to prove the due attestation of the will Ex. A-36 Gangotri would have to prove that Uma Dutt Singh and Badri Singh saw the deceased sign the will and they themselves signed the same in the presence of the deceased. The evidence of Uma Dutt Singh and Badri Singh is not such as to carry conviction in the mind of the Court that they saw the deceased sign the will and each of them appended his signature to the will in the presence of the deceased. They have been demonstrated to be witnesses who had no regard for truth and were ready and willing to oblige Gur Charan Lal in transferring the venue of the execution and attestation of the documents Ex. A-23 and Ex. A-36 from Gonda to Tarabganj for reasons best known to themselves.
If no reliance could thus be placed upon their oral testimony, where would be the assurance that they actually saw the deceased execute the will in their presence and each of them signed the will in the presence of the deceased. It may as well be that the signature of ::: Downloaded on - 20/09/2024 20:39:34 :::CIS 37 ( 2024:HHC:8884 ) the deceased on the will was appended at one time, the deceased being there all alone by himself and the attestations were made by Uma Dutt Singh and Badri Singh at another time without having seen the deceased sign the will or when the deceased was not present when they .
appended their signatures thereto in token of attestation. We have no satisfactory evidence before us to enable us to come to the conclusion that the will was duly attested by Uma Dutt Singh and Badri Singh and we are therefore unable to hold that the will Ex. A-36 is proved to have duly been executed and attested."
58. In view of the above decisions of the Hon'ble Supreme Court, now, this Court would proceed to examine the statement of DW-3, to ascertain the fact as to whether the execution of the Will has duly been proved by this witness or not.
59. In the opening lines, DW-3 has deposed that the Will Ex.DW-2/A was allegedly executed by Labhu, in favour of Kali Dass, which was scribed by Hari Krishan, DW-2. He has further deposed, in his examination-in-chief, that he does not remember the name of the other attesting witness. He is Lambardar of the village and the other attesting witness has given his address as Village Karal, Kothi Mandalgarh, Kullu. Had DW-3 been signed this document, in the presence of Jagarnath, as projected by defendant No.1, then, in the natural course of events, he ::: Downloaded on - 20/09/2024 20:39:34 :::CIS 38 ( 2024:HHC:8884 ) would have remembered the name of other attesting witness.
60. DW-3 has further deposed that the Will was .
scribed by Hari Krishan and at the relevant time, Labhu was having control over his senses and after scribing the Will Hari Krishan has read over the same to the testator, who has, accepted the same, as correct and put his signatures.
Thereafter, other witness has put his signature and then this witness has also signed the same. In his further deposition, this witness has taken the extra cautious approach by deposing that Kali Dass was not present there and testator has apprised this witness that the same has given to Kali Dass defendant No.1, whereas, in the earlier paragraph of the judgment, this Court has discussed the fact that from the deposition of DW-1, it has been proved that he had taken active part in the execution of the Will, by the testator.
61. In the cross-examination, DW-3 has deposed that testator has requested him to come 3-4 days ago.
However, he could not disclosed the fact as to who had directed scribe Hari Krishan to come. He has also deposed that the other witness might have called by Labhu. He has also deposed that when he reached at the house of Labhu, ::: Downloaded on - 20/09/2024 20:39:34 :::CIS 39 ( 2024:HHC:8884 ) Hari Krishan and the other witness were already there.
According to his further deposition two papers were prepared, earlier subject matter was prepared and .
thereafter, the Will was scribed. The Will was allegedly scribed in the Courtyard. Earlier, they were sitting in the 'verandah' and when, testator has told them that Lambardar has come, then they had come to Courtyard. At that time, other persons were sitting in the 'Mandari' (cot) and this witness was sitting at 'Paur' (first step of the staircase), being Harijan. His further deposition qua the fact that on the next day, from the date of execution of the alleged Will, Labhu has told him that he has executed Will in favour of Kali Dass and the same was handed over to him.
62. This deposition is sufficient to take away his statement, out of the purview of the deposition of attesting witness. When, this witness came to know about the fact that testator has executed the Will in favour of Kali Dass, next day from the execution of the Will, then whatsoever, he has deposed is liable to be ignored. Statement of the witness is to be considered, as a whole and not in piecemeal.
63. This witness is claiming to be the co-villager of the testator, but, the important fact of the death of testator ::: Downloaded on - 20/09/2024 20:39:34 :::CIS 40 ( 2024:HHC:8884 ) has been deposed by him, as 8-9 days, after scribing the Will, whereas, testator has expired on the 4 th Day from the date of alleged execution of the Will. All these facts assume .
significance, as the Will is unregistered and even person, who has scribed the same, has not deposed anything about his status, as to why he has been chosen to scribe the Will of the testator. Neither he is deed writer nor petition writer.
64. Even otherwise, Hari Krishan, DW-2, has taken the over conscious approach, by mentioning his designation over the document Ex.DW-2/A, as 'Katib' (Writer). Even, he has also deposed that Kali Dass DW-1, was not present there, when, the Will was allegedly scribed by him and no discussion had taken place about Kali Dass. As such, the very presence of DW-3, who has been examined by the propounder, as attesting witness, becomes doubtful.
65. The learned trial Court, while deciding issue No.7, has only discussed the examination-in-chief of DW-2 and material facts deposed by him, regarding the absence of Kali Dass, has simply been reproduced in the discussion, but, its effect has not been considered. Had the entire statement of DW-2 been considered by the learned trial Court, in its right perspective, then, the conclusion, which ::: Downloaded on - 20/09/2024 20:39:34 :::CIS 41 ( 2024:HHC:8884 ) had been drawn, by the learned trial Court, would have been otherwise.
66. Merely, reproducing the deposition of the .
witnesses is not discussion of the evidence. Material facts, which have been deposed, by the witnesses, have to be discussed, in order to draw the legal conclusion.
67. Similarly, the evidence of DW-3, has simply been reproduced and the material deposition, as referred to above, has not been considered. As such, this Court is of the view that the findings on issue No.7, fall within the definition of perverse findings, as the entire statements of witnesses have not been taken into consideration.
68. Similarly, learned First Appellate Court has also fallen into an error by not discussing these material aspects, regarding the presence of DW-1 and DW-3, being final Court of facts. These material facts ought to have been discussed, by the learned First Appellate Court.
69. No other point urged or argued.
70. In view of the discussion made above, the judgment and decree passed by the learned trial Court, as affirmed by the learned First Appellate Court, does not stand in the judicial scrutiny by this Court. Therefore, the ::: Downloaded on - 20/09/2024 20:39:34 :::CIS 42 ( 2024:HHC:8884 ) judgments and decrees passed by both the Courts below, are liable to be set aside.
71. Consequently, the appeal is allowed, the .
judgments and decrees passed by both the Courts below are set aside and the suit of the plaintiff is decreed, as prayed for. The estate of Labhu is ordered to be devolved as per Section 8 of the Hindu Succession Act.
72. Decree sheet be prepared accordingly.
73. Pending application(s), if any, shall also stand disposed of.
74. Record be sent back.
(Virender Singh)
September 20, 2024(ps) Judge
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