Himachal Pradesh High Court
Kamal Nain And Others vs Of on 17 August, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 498 of 2005.
Reserved on 03.08.2016.
.
Decided on: 17.08.2016.
Kamal Nain and others ....Appellants.
Versus
of
Rano Ram ... Respondent.
....................................................................................
Coram
rt
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes.
For the appellants. : Mr. Vinod Gupta, Advocate.
For the respondent : Mr. Ramakant Sharma, Sr. Advocate
with Ms. Soma Thakur, Advocate.
Ajay Mohan Goel, J.
This appeal has been filed against the judgment passed by learned Additional District Judge-I, Kangra at Dharamshala, in Civil Appeal No. 100-N/2002 dated 9.6.2005, vide which, learned Appellate Court while dismissing the first appeal filed by the present appellant has upheld the judgment and decree passed by the Court of 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:02:17 :::HCHP 2learned Sub (II), Nurpur, District Kangra in Civil Suit No. No. 14/94 dated 11.9.2002.
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2. This appeal was admitted on 27.09.2005 on the following substantial questions of law:
"1. Whether the non framing of proper issues regarding the false and a forged will whereby the onus would have been on the plaintiff to impeach the veracity of the will prejudices the case of the plaintiff and the quality of evidence for want of onus weakens the case of the of plaintiff. If so its effect thereto?
2. Whether a father can dispose of by will his undivided coparcenery interest, the reason being that at the moment of the death the right of survivorship (of the other coparceners) is in conflict with the right by rt device. Then the title by survivorship, being the prior title, takes precedence to the exclusion of that by device. If so its effect on the present suit?"
3. Brief facts necessary for the adjudication of this case are the appellants-plaintiffs (hereinafter referred to as the 'plaintiffs) filed a suit for declaration on the ground that deceased Munshi Ram, father of plaintiff No. 1, was owner of the suit land and after his death plaintiff No. 1 inherited the estate of the deceased being his only heir.
Mutation of the estate of the deceased Munshi Ram was also sanctioned in favour of plaintiff No. 1 on 18.05.1989. Later on plaintiff No. 1 gifted part of the suit land to his sons i.e. plaintiffs No. 2 to 4, vide registered gift deed and mutation was also sanctioned in favour of his sons on the basis of said gift deed. Further, according to the plaintiffs, defendant is neither related to plaintiff No. 1 nor was he ::: Downloaded on - 15/04/2017 21:02:17 :::HCHP 3 related to deceased Munshi Ram. Defendant alleging himself to be an adopted son of deceased Munshi Ram filed an appeal against the order .
of mutation of inheritance sanctioned in the name of plaintiff No. 1 qua the estate of deceased Munshi Ram and Collector vide order dated 2.9.1993 remanded the mutation to the Revenue Officer for retrial.
According to the plaintiffs, the defendant was not the adopted son of of deceased Munshi Ram nor any 'Will' was executed by Munshi Ram in favour of the defendant, as was being propounded by the defendant rt and the 'Will' so propounded by the defendant was false and fictitious, prepared and manipulated by defendant in connivance with the witnesses and the scribe. It was further the case of the plaintiffs that filing of the appeal by the defendant and producing the false and forged 'Will' had created a cloud upon the rights of the plaintiffs as the defendant had no concern or connection with deceased Munshi Ram. On these bases, the plaintiffs filed the suit seeking decree of declaration in their favour and against the defendant to the effect that plaintiff No. 1 was owner of the suit land having inherited the same from his deceased father and defendant had no concern or connection with the same, neither defendant had any connection with the property subsequently gifted by the plaintiff No. 1 to his sons i.e. plaintiffs No. ::: Downloaded on - 15/04/2017 21:02:17 :::HCHP 4 2 to 4 nor any alleged 'Will' was executed by deceased Munshi Ram and the said 'Will' was false and fictitious.
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4. In his written statement, defendant denied the case of the plaintiffs. As per the defendant, he was owner and co-sharer with plaintiff No. 1 in the estate of deceased Munshi Ram, on the basis of a registered 'Will' dated 20.01.1989 which was duly executed by of deceased Munshi Ram during his lifetime. As per defendant Munshi Ram had executed the 'Will' in favour of plaintiff No. 1 and rt defendant with his full disposing mind and free-will and defendant was co-sharer in possession of the suit land to the extent of 1/3rd of the suit property. According to the defendant, he was brought up by deceased Munshi Ram since he was 5-6 years old as Munshi Ram was not having any issue at that time nor there was any hope of Munshi Ram having any issue. According to the defendant, Munshi Ram adopted him as son and made him his 'Dharam Putar' and thereafter plaintiff No. 1 was born and both plaintiff No. 1 as well as defendant were rendering services to Munshi Ram during his lifetime. As per the defendant, he was living with Munshi Ram as his adopted son and Munshi Ram was having love and affection towards defendant and plaintiff No. 1 as his sons. It was on these bases, the deceased executed a valid and registered 'Will' of his entire property on ::: Downloaded on - 15/04/2017 21:02:17 :::HCHP 5 20.01.1989 in favour of plaintiff No. 1 to the extent of 2/3rd share and defendant to the extent of 1/3rd share. Accordingly, on these bases, the .
defendant denied the case set up by the plaintiffs and also stated that the plaintiff No. 1 being a clever person had got the mutation wrongly sanctioned in his favour and gift made by plaintiff No. 1 in favour of his sons was also bad.
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5. On the basis of pleadings of the parties, the learned trial Court framed the following issues:-
rt "1.Whether the plaintiff No. 1 was owner in possession of the suit land as alleged? OPP.
2. Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for? OPP.
3. Whether late Sh. Munshi Ram executed a valid 'will' dated 20.1.1989 in favour of defendant and plaintiff No. 1, as alleged? OPD.
4. Whether the defendant is the adopted/Dharam Putar/son of late Sh.
Munshi Ram, as alleged, if so its effect? OPD.
5. Whether the suit is time barred? OPD
6. Whether the plaintiffs are time barred from filing the suit by their act and conduct?OPD
7. Whether the suit is bad for mis-joinder of necessary parties? OPD.
8. Relief."
6. On the basis of evidence adduced by the respective parties both oral as well as documentary, learned trial Court decided the issues so framed as under:-
"Issue No.1 : Partly Yes.
Issue No. 2 : No.
Issue No. 3 : Yes.
Issue No.4 : No.
Issue No.5 : No.
Issue No.6 : No.
Issue No. 7 : No.
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6
Relief : Suit dismissed as per the operative part of
judgment."
7. Accordingly, learned trial Court vide its judgment dated .
11.9.2002, dismissed the suit so filed by the plaintiffs by holding that plaintiff No. 1 was not sole owner in possession of the land i.e. the suit property alongwith his sons to whom he had gifted some part of estate of deceased Munshi Ram. Learned trial Court further held that of plaintiff No. 1 alongwith his sons was entitled to 2/3rd share whereas defendant was entitled to 1/3rd share in the suit land as per 'Will' rt dated 18.05.1989.
8. Feeling aggrieved of the said judgment passed by the learned trial Court, plaintiffs challenged the same before the learned Appellate Court. The appeal so filed by the plaintiffs before the learned Appellate Court was also dismissed vide judgment dated 09.06.2005. Both these judgments are under challenge in this second appeal.
9. I have heard the learned counsel for the parties and also gone through the records of the case as well as the judgments passed by both learned Courts below.
10. Learned trial Court on the basis of material produced on record held that execution of 'Will' Exhibit DW1/A stood duly proved by the defendant. The 'Will' was scribed by Krishan Gopal, who ::: Downloaded on - 15/04/2017 21:02:17 :::HCHP 7 entered the witness box as DW2 and stated that 'Will' was drafted by him on the instructions of Munshi Ram in the presence of Susheel .
Kumar and Surjan Singh, members of the Gram Panchayat. This witness also stated that the contents of 'Will' were also read over to the deceased which were admitted by him and thereafter he appended his signatures on the 'Will'. He also stated that both witnesses also of signed the 'Will' and Munshi Ram was in sound state of disposing mind when the 'Will' was so executed by him.
11. rt DW3 Surjan Singh, who was the marginal witness to the 'Will' Exhibit DW1/A, stated that the 'Will' in issue was scribed on the instructions of Munshi Ram and though Munshi Ram was admitted in the hospital but he could talk normally and was in sound state of disposing mind. He also deposed the mode and manner in which the 'Will' was registered. He also stated that at the time of registration of the documents, signatures of both the witnesses were also taken and Munshi Ram was in a sound state of disposing mind.
This witness also deposed that he had signed the 'Will' as Member of the Panchayat and not as a clerk of an Advocate.
12. It is further evident from the judgment passed by the learned trial Court that defendant Rano Ram, who entered the witness box as DW4, stated that Munshi Ram was his god-father and he was ::: Downloaded on - 15/04/2017 21:02:17 :::HCHP 8 brought up by Munshi Ram since he was five years old. As per the defendant, Munshi Ram was issueless and he contracted three .
marriages during his life-time. He stated that when he was adopted, second wife of Munshi Ram was alive and when he was 11 years old, said wife of Munshi Ram died issueless and thereafter Munshi Ram contracted third marriage with Shibo, from whom, plaintiff No. 1 was of born. He stated that Plaintiff No. 1 is 12-13 years younger to him.
Learned trial Court held that factum of defendant having been adopted rt by late Munshi Ram also stood proved on record by the testimony of DW6 Udham Singh who was in the Lambardari of village Bheel Thakron as well as DW7 Jarmu who was blacksmith by profession.
Amar Nath, cousin of the defendant Rano Ram, entered the witness box as PW8 who also confirmed the adoption of Rano Ram by Munshi Ram. On these bases, learned trial Court concluded that the execution of the 'Will' stood duly proved in accordance with law.
Learned trial Court also held that there is nothing on record to show that at the time of execution of the 'Will', the testator was suffering from any mental ailment or other disability or was incapable of making the disposition. It also held that there was sufficient evidence on record to show that defendant was residing in the house of Munshi Ram since five years of age and remained with Munshi Ram till his ::: Downloaded on - 15/04/2017 21:02:17 :::HCHP 9 death and even thereafter he was residing in the village. Though learned trial Court held that the defendant could not be said to have .
been adopted by Munshi Ram validly as per law, however, this did not meant that defendant was not residing with Munshi Ram and was being treated by him as 'Dharam Putar'. On these bases, learned trial Court concluded that the 'Will' Exhibit DW1/A, vide which 2/3rd of share of his property was bequeathed by Munshi Ram in favour of plaintiff No. 1 and 1/3 share was bequeathed in favour of defendant, rt was a valid 'Will' which stood duly proved on record in accordance with law and the defendant being propounder of the 'Will' had removed all suspicious circumstances as far as execution of the same was concerned. On these bases, learned trial Court dismissed the suit of the plaintiff by holding that plaintiff No. 1 and his sons were entitled to succeed the property of the deceased Munshi Ram to the extent of 2/3rd share whereas defendant was entitled to succeed 1/3rd share of his property.
13. Learned Appellate Court while upholding the judgment passed by the learned trial Court held that the execution of the 'Will' stood duly proved in accordance with law by the defendant and the findings returned in this regard by learned trial Court, therefore, did not require any interference. The contention of the appellant therein to ::: Downloaded on - 15/04/2017 21:02:17 :::HCHP 10 the effect that learned trial Court erred in not framing any issue on the point of suit property having been gifted by plaintiff No. 1 in favour .
of his sons i.e. plaintiffs No. 2 to 4, was also rejected by learned Appellate Court by holding that in the present case, parties were knowing their cases very well and they led evidence on all the points.
Learned Appellate Court further held that learned trial Court had of adjudicated upon all the issues and therefore it could not be said that the judgment passed by learned trial Court was hit by provisions of rt Order 20 Rule 5 CPC. It also held that though all the issues were decided together but the findings were returned on all the issues so framed. Accordingly, learned Appellate Court, after appreciating all the ocular as well as documentary evidence on record as well as the judgment passed by the learned trial Court, upheld the findings so returned by the learned trial Court and dismissed the appeal.
14. In my considered view, there is neither any infirmity nor any perversity with the findings so returned by both the learned Courts below. In the facts of the case, it could not be said that there was any non-framing of proper issue regarding false and forged 'Will'. Learned trial Court had framed eight issues and issue No. 3 was very specific which was as under:
::: Downloaded on - 15/04/2017 21:02:17 :::HCHP 11". Whether late Sh. Munshi Ram executed a valid 'will' dated 20.1.1989 in favour defendant and plaintiff No. 1, as alleged? OPD"
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15. Late Shri Munshi Ram executed a valid 'Will' dated 20.01.1989 in favour of plaintiff No. 1 and the defendant. The onus to prove this issue was upon the defendant. It is apparent and evident from the perusal of the record of the present case that the 'Will' of executed in favour of both the plaintiff No. 1 as well as the defendant was proved by the scribe as well as marginal witnesses in accordance rt with the statutory provisions mentioned in the Indian Succession Act.
In the course of adjudication of the case before the learned trial Court, the plaintiffs had the opportunity to prove that the 'Will' in issue was a forged document but the plaintiffs could not produce any material on record from which it could be inferred that the 'Will' in issue was either forged or at the time of 'Will' so executed Munshi Ram, the testator of the 'Will' was either mentally ill or was not in a sound state of disposing mind, or execution of the 'Will' was a result of coercion or fraud exercised by the defendant upon the testator.
16. Section 63 of the Indian Succession Act clearly lays down that every testator shall execute his Will according to the following rules:-
::: Downloaded on - 15/04/2017 21:02:17 :::HCHP 12"(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the .
person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall he 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 of 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 rt at the same time, and no particular form of attestation shall be necessary."
17. It has been held by the Hon'ble Supreme Court in H. Venkatachala Iyengar Vs. B.N. Thimmajamma, AIR 1959 SC 443, that in the cases in which execution of the Will is surrounded by suspicious circumstances, it may raise a doubt as to whether the testator was acting of his own free will. The Hon'ble Supreme Court has further held that in such circumstances, the initial onus is on the propounder to remove all reasonable doubts in the matter. The presence of suspicious circumstances makes initial onus heavier. Such suspicion cannot be removed by the mere assertion of the propounder that the will bears signature of the testator or that the testator was in a sound and disposing state of mind at the time when the will was made.
::: Downloaded on - 15/04/2017 21:02:17 :::HCHP 13Though the purpose of the Will is to deprive the natural heirs from the devolution of the property as per natural succession, however, if the .
Will is suspicious, then the onus is upon the propounder of the Will to remove that suspicion and if the propounder succeeds in removing the suspicious circumstances, then the Court has to give effect to the Will, even if it has cut off whole or in part near relations.
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18. The Hon'ble Supreme Court has held in Adivekka and others Vs. Hanamavva Kom Venkatesh (Dead) by LRS. and rt another, (2007) 7 Supreme Court Cases 91, that where there are suspicious circumstances, the onus would be on the propounder to remove suspicion by leading appropriate evidence. Section 63 of the Succession Act lays down the mode and manner in which an unprivileged Will is to be executed. Section 68 of the Evidence Act postulates the mode and manner in which proof of execution of document is required by law to be attested. It in unequivocal terms states that execution of Will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the Court and capable of giving evidence. The proof of Will is not required as a ground of reading the document but to afford the judge reasonable assurance of it as being what it purports to be.
::: Downloaded on - 15/04/2017 21:02:17 :::HCHP 1419. In my considered view, it cannot be said that there was any infirmity regarding non-framing of any proper issue with regard .
to the 'Will' subject matter of the lis. There is no material produced on record by plaintiff nor any issue was framed to the effect that the property which was bequeathed by late Shri Munshi Ram by way of 'Will' dated 20.01.1989 both in favour of plaintiff No. 1 as well as of defendant was ancestral property and the same could not have been bequeathed by him by way of a 'Will'. That being so, in my rt considered view, the substantial question of law which has been so framed, is not borne out from pleadings and material which has been placed on record by the plaintiff. Both the substantial questions of law are answered accordingly.
Keeping in view the fact there is neither any perversity nor any infirmity with the findings which have been returned by learned Courts below and also in view of the ratio of the abovementioned judgments, I do not find any merit in the present appeal and the same is accordingly dismissed with costs. Pending application(s), if any, also stands disposed of.
(Ajay Mohan Goel) Judge 17th August, 2016.
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