Jagdish Kumar vs Ravi Kumar And Others on 17 March, 2023

[Cites 6, Cited by 0]

Himachal Pradesh High Court

Jagdish Kumar vs Ravi Kumar And Others on 17 March, 2023

By way of this Regular Second Appeal, the appellant has challenged judgment and decree dated 03.09.2008, passed by the Court of learned Additional District Judge, Fast Track Court, Chamba, H.P. in Civil Appeal No. 1/2008, titled as Ravi Kumar Vs. Jagdish Kumar and others, in terms whereof, the appeal preferred by respondent No. 1 Ravi Kumar against the judgment and decree dated 31.03.2008, passed by the Court of learned Civil Judge (Junior Division), Dalhousie, District Chamba, H.P. in Civil Suit No. 16 of 2005, titled as Sh. Jagdish Chand Vs. Sh. Ravi Kumar and others was allowed.

2. Brief facts necessary for the adjudication of the present appeal are as under:-

Appellant/plaintiff (hereinafter referred to as 'the plaintiff') filed a suit for declaration and permanent prohibitory injunction against the defendants/proforma defendants, inter alia, on the grounds that the plaintiff and defendants were sons and daughters of late Shri Om Parkash, who expired on 20.10.2004. At the relevant time, Shri Om Parkash was recorded owner of Khasra No. 228, measuring 0-14 bighas, Khata Khatoni No. 58/69, Khasra No. 103, measuring 117-3 sq. yards, Khata Khatoni No. 13/14 and Khasra 61,87 &100 measuring 399-7 Sq. yards, Khata Khatoni No. 12/13, situated at Mohal Nainikhad, Pargna Hobar, Tehsil Bhattiyat, District Chamba, H.P. Out of the said land, Khasra Nos. 61 and 103 were inherited by Sh. Om Parkash from his father late Shri Milkhi Ram. It was further the case of the plaintiff that Om Parkash had inherited said two Khasra numbers as Karta of Hindu Undivided Family and the plaintiff being one of ::: Downloaded on - 21/03/2023 20:32:30 :::CIS 3 the coparceners was having interest by virtue of his birth upon the said land. The remaining land was admitted to be self-acquired property of late Shri Om Parkash .

even by the plaintiff. According to the plaintiff, late Shri Om Parkash was suffering from paralysis for the last eight years and he was also mentally unfit to understand his good or bad. After the death of Shri Om Parkash, defendants reported to the Patwari that a Will stood executed by Shri Om Parkash on 27.03.2002 and on account of the said Will, mutation No. 406 and 104 stood entered by the Revenue Authorities. According to the plaintiff, Shri Om Parkash was an old man suffering from paralysis and was unable to walk or to understand his good or bad. In fact, he was not in a position to execute any Will and the Will thus was a forged Will, not binding upon the plaintiff as also proforma defendants. Further, as Shri Om Parkash had inherited Khasra No. 61 and 103 from his father as Karta of joint Hindu Undivided Family, he was not competent to dispose of the ancestral property or bequeath the same by way of a Will. It was further the case of the plaintiff that in terms of alleged Will dated 27.03.2002, which was a forged Will, plaintiff had also 1/8th share of the suit property alongwith the defendants. He had requested the defendants to ignore the Will, who refused to do so. Hence, the suit for declaration and permanent prohibitory injunction.

3. Record demonstrates that defendants No. 3 and 4 admitted the claim of the plaintiff, but the suit was resisted by defendants No. 1, 2 and 5 to 7, who, inter alia, took preliminary objection with regard to the maintainability of the suit and also claimed the entire suit property to be self-acquired property of Shri Om Parkarsh. As per the contesting defendants, shops and house over Khasra No. 61 and 103 were constructed by late Shri Om Parkash from his own income and with ::: Downloaded on - 21/03/2023 20:32:30 :::CIS 4 the financial help of defendant No. 1, who was living with late Sh. Om Parkash. It was denied that Om Parkash was Karta of Hindu Undivided Family. It was also .

denied that no Will was executed by late Shri Om Parkash or that the Will in issue was a forged one. Though it was not disputed that late Shri Om Parkash was suffering from paralysis, but as per the contesting defendants, Shri Om Parkash was mentally fit and he was in a position to understand his good and bad and, thus, he was competent to execute the Will.

4. By way of replication, the plaintiff reiterated the stand taken in the plaint.

5. On the basis of pleadings of the parties, learned Trial Court framed the following issues:-

"1. Whether Will executed by late Om Parkash dated 27.03.2002 is forged and not binding on the rights of the plaintiff as alleged? OPP.

2. Whether plaintiff is entitled to relief of permanent prohibitory injunction as prayed for? OPP

3. Whether Khasra Nos. 61 and 103 is ancestral property inherited by late Om Parkash from his father Milkhi Ram, if so its effect, as alleged? OPP.

4. Whether plaintiff has birth right over Khasra Nos. 61 and 103 as alleged? OPP.

5. Whether suit in the present form is not maintainable as alleged? OPD.

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6. Whether plaintiff is estopped from filing the present suit as alleged? OPD.

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7. Whether plaintiff has no locus-standi to sue as alleged? OPD.

8. Whether Will executed by Om Parkash dated 27.03.2002 is valid and genuine as alleged? OPD.

9. Whether this Court has no pecuniary jurisdiction to entertain this suit as alleged? OPD.

10. r Relief.

6. On the strength of the evidence, which was led by the parties in support of their respective contentions, the issues were answered as under:-

              "Issue No. 1:             No.


              Issue No. 2:              Yes.

              Issue No. 3:              Yes.




              Issue No. 4:              No.





              Issue No. 5:              No.

              Issue No. 6:              No.





              Issue No. 7:              No.

              Issue No. 8:              No.

              Issue No. 9:              No.

              Relief:                   The suit of the plaintiff is decreed
                                        as per operative part of the
                                        judgment."

7. Learned Trial Court though held that the plaintiff had failed to prove that the Will in issue was a forged document, but decreed the suit of the plaintiff ::: Downloaded on - 21/03/2023 20:32:30 :::CIS 6 on the ground that the contesting defendants were not able to prove the Will Ex. DW3/A in accordance with law. While arriving at the said findings and while .

deciding Issues No. 1 and 8, what weighed with the learned Trial Court was the fact that one of the attesting witnesses, who appeared in the Court as DW-3, namely, Sh. Pavinder Kumar, had stated that the Will was not scribed by the Scribe of the Will on the asking of the testator, but it was scribed on the asking of attesting witnesses.

8. Feeling aggrieved by the judgment and decree passed by the learned Trial Court, defendant Ravi Kumar filed an appeal, which was allowed by the learned Appellate Court by reversing the findings returned by the learned Trial Court. Learned Appellate Court held that the contesting defendants had proved the execution of the Will in accordance with law and in fact learned Trial Court had erred in holding to the contrary. Learned Appellate Court also held that Khasra Nos. 61 and 103 were not proved to have been inherited by Shri Om Parkash from his father and, therefore, there was no illegality in the bequeathing of said Khasra numbers also by Shri Om Parkash by virtue of his Will.

9. Feeling aggrieved by the judgment and decree passed by the learned First Appellate Court, plaintiff-Jagdish Kumar filed the present appeal. This appeal was admitted on 14.05.2009 on the following substantial questions of law:-

"1. Whether the learned lower Appellate Court erred in holding the Will to have been duly proved when the only alleged attesting witness had not at all deposed regarding the executant or the other attesting witnesses to have signed in his presence?

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2. Whether the Will could have been held to have been duly proved when the same was not as per the .

dictation or instruction of the executant but on the dictation and instructions of the attesting witnesses?

3. Whether the judgment in Kartari Devi's case has been misapplied or mis-appreciated by the learned Courts below?

4. Whether the alleged Will have been proved in accordance with law?"

10. As all the substantial questions of law are interlinked, they are being answered together.

11. Learned counsel for the appellant has argued that the judgment passed by the learned First Appellate Court is not sustainable in the eyes of law, as the learned Frist Appellate Court has erred in not appreciating that propounder of the Will had failed to prove on record that the Will in fact was executed in accordance with law. He further submitted that the learned First Appellate Court has further erred in not appreciating that it had come on record that in fact scribe of the Will had scribed the Will not on the asking of late Shri Om Parkash, but on the asking of attesting witnesses. He further submitted that the judgment and decree passed by the learned First Appellate Court is further not sustainable in the eyes of law, as learned First Appellate Court has erred in not appreciating that the defendants' witnesses did not state before the Court that the Will was executed in terms of the provisions of the Indian Succession Act, i.e., to say that the witnesses did not depose that the Will was scribed by its scribe on the asking of Shri Om Parkash and thereafter, the same was read over and explained to Shri Om Parkash, who after understanding the same, appended his signatures ::: Downloaded on - 21/03/2023 20:32:30 :::CIS 8 thereupon. Learned counsel has also argued that the learned Appellate Court has erred in not appreciating that it was not proved on record that the attesting .

witnesses in fact appended their signatures after the same was signed by Shri Om Parkash nor it has come on record that attesting witnesses had stated that the Will was signed by them in each other's presence. Learned counsel for the appellant also argued that the findings which have been returned by the learned First Appellate Court to the effect that Khasra Nos. 61 and 103 were not ancestral are completely perverse findings, because the effect of Ex.- PB has not been taken into consideration by the learned First Appellate Court while arriving at the said findings.

12. Learned Senior Counsel appearing for the contesting defendants while supporting the judgment and decree passed by the learned First Appellate Court has submitted that the findings returned by the learned Trial Court were perverse being a result of mis-reading and mis-appreciation of the evidence on record and further the findings which have been returned by the learned First Appellate Court vis-à-vis Khasra Nos. 61 and 103 are also correct findings, because the plaintiff had miserably failed to demonstrate that these two Khasra numbers indeed were ancestral in nature. Learned Senior Counsel has also argued that the execution of the Will in fact stood proved on record, as propounder proved the same on the strength of the statement of the scribe of the Will as well as one of the attesting witnesses, which is the requirement of law. Accordingly, he submitted that as the present appeal lacks any merit, the same be dismissed.

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13. The substantial questions of law involved in the appeal have already been enumerated by me hereinabove. Record demonstrates that learned .

Trial Court while deciding the Civil Suit, returned the findings that the plea of the plaintiff that Will dated 27.03.2002 executed by Shri Om Parkash was a forged Will was not proved on record. In other words, this issue in fact has attained finality that Will dated 27.03.2002 was not a forged Will. Record further demonstrates that in order to prove his case, the plaintiff besides deposing in the Court as PW-1, examined only one more witness, namely, Shri Bihari Lal, who deposed in the Court as PW-2. Bihari Lal happened to be a friend of Shri Om Parkash, i.e., deceased father of the parties. On the other hand, the contesting defendant besides entering into the witness box as DW-1, also examined scribe of the Will-Sh. Raj Gopal as DW-2 and one of the attesting witnesses Sh. Pavinder Kumar as DW-3.

14. Section 63 of the Indian Succession Act deals with the execution of unprivileged Wills and the same provides as under:-

"63. Execution of unprivileged Wills.- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:-

(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 ::: Downloaded on - 21/03/2023 20:32:30 :::CIS 10 intended thereby to give effect to the writing as a Will.

.

(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 acknowledgement of his signature or mark, or 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."

15. As already stated hereinabove, what weighed with the learned Trial Court while returning the findings that the contesting defendants were not able to prove that Will was executed as per law, was the fact that DW-3-Sh. Pavinder Kumar, who was one of the attesting witnesses, had deposed in the Court that the Will was scribed by DW-2-Sh. Raj Gopal not as per the instructions of late Sh. Om Parkash, but as per the instructions of other attesting witnesses. A perusal of the statement of DW-3 in fact demonstrates that he has not deposed as such and in fact, there has been a complete mis-reading of the statement of this witness by the learned Trial Court. What DW-3 deposed in his examination- in-chief was that he knew late Shri Om Parkash, who took him to Chowari on 27.03.2002 to be an attesting witness qua the Will to be executed by him. This witness further deposed in his examination-in-chief that at Chowari, the Will was ::: Downloaded on - 21/03/2023 20:32:30 :::CIS 11 got scribed from Sh. Kaushal, Advocate and at that time, Darshan and Gandho were also there. The next line of the deposition of Shri Pavinder Kumar is as .

under:-

"Unehoney Shri Kaushal ko Vasiyat bara bataya thaa. Shri Kaushal ne Vasiyat unke kahey-nusaar likh dee thee."

Learned Trial Court has drawn the inference on the strength of this line of deposition of Sh. Pavinder Kumar that the Will was drafted by Shri Kaushal on the asking of Darshan and Gandho. In fact, as already mentioned hereinabove, this indeed is a complete misreading and mis-appreciation of the statement of Sh. Pavinder Kumar, as learned Trial Court has taken this line and interpreted it totally out of context, rather than harmoniously construing the same in the line of deposition, as was being made by Shri Pavinder Kumar. What in fact DW-3-Sh. Pavinder Kumar deposed before the Court was that the Will was scribed by the Lawyer on the asking of Shri Om Parkash and at that relevant time, Darshan and Gandho were also there. In fact, this witness further deposed in the Court that after the Will was scribed, the same was read over to the testator, who acknowledged the same to be correct and thereafter appended his signatures on the same in Urdu. This witness further deposed that he appended his signatures upon the same in Hindi. He further stated that thereafter the Will was taken to the office of Tehsildar and was duly registered there. At the relevant time, Om Parkash was in a good mental condition to execute the same, though he used a stick for the purpose of walking. In his cross-examination, this witness denied the suggestion given to him that Shri Om Parkash was not mentally in a fit condition ::: Downloaded on - 21/03/2023 20:32:30 :::CIS 12 to execute the Will and in fact, no suggestion was given to him that other attesting witnesses did not append signatures thereupon in his presence. Similarly, a .

perusal of the statement of DW-2 Sh. Raj Gopal, who is the scribe of the Will, demonstrates that he deposed in the Court that on 27th March, 2002, Shri Om Parkash had got a Will scribed from him, which was scribed on the asking of Shri Om Parkash and after the Will was prepared, he read over the same to Shri Om Parkash, who after acknowledging the same to be correct, appended his signatures thereupon. This witness further deposed that thereafter witnesses appended their signatures upon the same and that Shri Om Parkash was in a fit mental condition when the Will was executed. This Court is of the considered view that in view of the depositions of DW-2 Raj Gopal and DW-3 Pavinder Kumar it cannot be said that learned Appellate Court erred in holding that the Will was proved to have been executed in accordance with law. This Court has no hesitation in holding that the Will was proved to have been duly executed on the strength of the testimony of the scribe of the same as also one of the attesting witnesses. In fact, in law, deposition of one of the attesting witnesses is good enough to substantiate the factum of a Will having been executed in accordance with law. Similarly, it cannot be held that the Will was scribed by DW-2 on the instructions of the attesting witnesses, because I have already held in the above part of the judgment that the findings returned to this effect by the learned Trial Court are a result of complete mis-reading and mis-appreciation of the statement of DW-3 by the learned Trial Court and in fact record is clear and categoric that the Will was scribed on the asking of the testator, namely, Sh. Om Parkash. ::: Downloaded on - 21/03/2023 20:32:30 :::CIS 13

16. As far as the judgment passed by this Court in Kartari Devi and others Vs. Tota Ram,1992 (1) Sim. L.C. 402 is concerned, the law which has .

been declared by this Court is that interest of a male Hindu in Mitakshara coparcenary property is capable of being disposed of by way of Will irrespective of any provision in the Act or any other law to the contrary, read with Section 4 of the Act.

17. Section 30 of the Hindu Succession Act provides as under:-

"30. Testamentary succession.- Any Hindu may dispose of by Will or other testamentary disposition any property, which is capable of being so disposed of by him or by her, in accordance with the provisions of the Indian Succession Act, 1925, or any other law for the time being in force and applicable to Hindus.

Explanation- The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom, kutumba or kavaru shall notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or her within the meaning of this Section."

18. Coming to the facts of the present case, herein, one of the contentions of the plaintiff has been that out of the property which was bequeathed by late Shri Om Parkash by way of Will dated 27.03.2002, land comprised in Khasra Nos. 61 and 103 could not have been bequeathed by him by way of said Will, as the same was inherited by late Shri Om Parkash from his father. In this regard, learned Trial Court framed Issue No. 3, which was ::: Downloaded on - 21/03/2023 20:32:30 :::CIS 14 answered by the learned Trial Court in favour of the plaintiff by placing reliance upon Ex.-PB, which was copy of Jamabandi, perusal whereof demonstrates that .

one Milkhi Ram, son of Mehtab was shown in the said Jamabandi to be owner in possession of Khasra No. 61, upon which a two storeyed Gairmumkin shop was existing. Similarly, as far as Khasra No. 103 is concerned, in terms of this Jamabandi, the same was stated to be owned and possessed by Bihari Lal, son of Shri Amar Singh, son of Shri Milkhi Ram, son of Shri Mehtab. In terms of the Jamabandi, again a two storeyed Gairmumkin shop was existing upon the said Khasra number. Learned Appellate Court has reversed the findings which were returned by the learned Trial Court with regard to these two Khasra numbers by holding that there was no evidence on record that Khasra No. 61 and Khasra No. 103 were not in the hands of Shri Om Parkash. Learned Court held that the plaintiff was required to prove the ancestral nature of Khasra numbers 61 and

103. In absence thereof, the plaintiff cannot be said to have proved that Khasra numbers 61 and 103 were not in the hands of Shri Om Parkash. This Court is of the considered view that these findings returned by the learned First Appellate Court are bad in the eyes of law as while returning these findings and while reversing the findings which were returned by the learned Trial Court, learned Appellate Court erred in not taking into consideration Ex.-PB, which incidentally does not finds mention in the judgment and decree passed by the learned First Appellate Court. This exhibit in fact proves that the property devolved upon Om Parkash from his father and defendants failed to prove that the same did not devolve by way of natural succession. Therefore, the findings returned to this effect by the learned First Appellate Court are hereby reversed and it is held that ::: Downloaded on - 21/03/2023 20:32:30 :::CIS 15 as far as these two Khasra numbers are concerned, i.e., Khasra Nos. 61 and 103, the same shall be construed to have been bequeathed by Shri Om Parkash .

to the extent he could have had bequeathed the same in light of Section 30 of the Hindu Succession Act. Substantial questions of law are answered accordingly. The appeal stands disposed of in above terms. Judgment and decree passed by the learned First Appellate Court stand modified in terms of the above findings.

COPC No. 267 of 2018

19. In view of the judgment passed in RSA No. 702 of 2008, these proceedings are not pressed by the petitioner. Disposed of as not pressed. Notice discharged.

(Ajay Mohan Goel) Judge March 17, 2023 (bhupender) ::: Downloaded on - 21/03/2023 20:32:30 :::CIS

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