Himachal Pradesh High Court
Smt. Chaitru And Anr. vs Kali Dass And Anr. on 28 November, 2006
Equivalent citations: 2006(3)SHIMLC356
Author: Surjit Singh
Bench: Surjit Singh
JUDGMENT Surjit Singh, J.
1. The dispute in the present appeal pertains to the Will of deceased Labhu, who died issueless. The present appellants-plaintiffs, who are the daughters of two nephews of said Labhu, filed a suit for declaration that they had inherited the estate of Labhu to the extent of 2/3rd share alongwith respondent-defendant Kali Dass, who, being the son of one of the abovesaid nephews of Labhu, namely Tulku, was also an agnate and had inherited the estate of Labhu to the extent of 1/3rd share.
2. Suit was contested by respondent-defendant No. 1 Kali Dass. He set-up a Will purportedly executed by Labhu on 6.12.1984. Some preliminary issues were also raised.
3. Trial Court framed various issues based on the pleadings of the parties and then proceeded to try the case. At the end of the trial, it was concluded that Labhu had made a Will in favour of respondent-defendant No. 1. Consequently, the suit was dismissed. Appeal filed by the appellants-plaintiffs in the Court of District Judge stands dismissed.
4. The present appeal was admitted on the following substantial questions of law:
1. Whether the document of title Ext. DW 2/A has been misread 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. DW 2/A was a forged and fictitious document 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?
5. I have heard the learned Counsel for the parties and gone through the record.
6. Labhu died on 10.12.1984. On the death of Labhu, respondent-defendant No. 1 Kali Dass got mutation entered in his name on the basis of the Will. The Revenue Officer conducted an enquiry. Statements of Kali Dass respondent, the scribe and an attesting witness of the Will were recorded. On the conclusion of the enquiry the Revenue Officer attested the mutation in favour of respondent-defendant No. 1 Kali Dass, in accordance with the disposition made under the Will.
7. Respondent-defendant No. 1 examined three witnesses to prove the execution of the Will. The Will itself is Ex. DW-2/A. The witnesses examined by him are the scribe of the Will, namely DW-2 Hari Krishan, one of the attesting witnesses of the Will namely DW-3 Kalu and handwriting expert, namely DW-4 Shri K.N. Prashad.
8. No doubt, the scribe and the attesting witness, above named, testified that the Will was executed by Labhu in favour of respondent-defendant Kali Dass and that the Will was scribed on his instructions by DW-2 Hari Krishan and thereafter it was signed by Labhu himself and attested by DW-3 Kalu and one Jagar Nath, and the expert, examined by the defendant also testified that the signature, marked Q-l, on the Will tallies with the admitted signatures of Labhu on certain sale deeds, but some inconsistencies in the testimony of the scribe and the attesting witness, named above, as also the opinion of handwriting expert, namely PW-7 Shri S.K. Sexena, Government Examiner of Questioned Documents, examined by the plaintiffs, create serious doubt about the validity of the Will.
9. Handwriting Expert, examined by the appellants-plaintiffs, is from the Central Government Laboratory at Shimla. His opinion is Ex. PW-7/B. According to this opinion and the testimony of PW-7 Shri S.K. Sexena, the signature marked Q-l on the Will Ex. DW-2/A is different from the admitted signatures, Marked A-l, A-2 and A-3, of Labhu Ram on sale deeds Ex. PW-7/A and Ex. PW-3/A. The witness was cross-examined by the Counsel for the respondent-defendant. Nothing has surfaced in his cross-examination indicating that his opinion may not be correct or may be biased. No doubt, the expert examined by the defendant, namely DW-4 Shri K.N. Prashad, has stated that the signature Q-l on Will Ex. DW-2/A is similar to the aforesaid signatures of testator Labhu Ram, but the fact remains that he is not an independent witness, as he had been engaged as an expert by the respondent-defendant and, therefore, he cannot be termed as independent a witness as the Government Examiner of Questioned Documents examined by the plaintiffs.
10. The abovestated position apart, there are some apparent inconsistencies, discrepancies and contradictions in the testimony of respondent-defendant No. 1, who appeared as DW-1, and the scribe of the Will, namely DW-2 Hari Krishan and the attesting witness, namely DW-3 Kalu.
11. Scribe has stated that the Will was signed by Labhu with the same pen with which he had written it. However, a bare comparison of the signature and the body of the Will shows that the signature of Labhu is in a different ink, negating the claim that the same pen was used by Labhu to write his signature, as was used by the scribe to write the body of the Will and his own signature.
12. There is also no explanation why the scribe, who is a resident of a village two kilometers away from the village of the testator, had been called to write the Will, when the defendant's own evidence shows that there are educated persons available in the village itself. Furthermore, testator died only four days after the execution of the Will.
13. The scribe of the Will made a statement before the Revenue Officer, in the course of enquiry for attestation of mutation. The record of that mutation file is available being tagged with the trial Court's record. In the said statement, the scribe stated that Labhu had been seriously sick for two/three days prior to the execution of the Will and that he was brought out in the verandah on the first floor of the house, where the Will was executed, by being physically lifted by two persons. If that is so, the statement of the scribe in the Court that Labhu met him in a different village about two days prior to the date of execution of Will and asked him to visit his place for scribing the Will, cannot be believed.
14. Again, the scribe and the attesting witness examined in the Court have stated that the Will was scribed in the Khal, which means Courtyard, which is on the ground floor, but before the Revenue Officer the scribe stated that the Will was scribed in the Verandah of the first floor of the house of Labhu. Further, before the Revenue Officer respondent-defendant stated that he was present when the Will was scribed, but in the Court, while appearing as DW-1, he said that he was not present and that he came to know about the execution of the Will on the next following day, when the Will was handed over to him.
15. A suggestion was thrown to respondent-defendant Kali Dass, while he was in the witness-box, that one of the witnesses, namely Jagar Nath alias Jagru, was related to him because his wife was the real sister of his (defendant's) own wife. He though did not admit the suggestion, at the same time he did not deny it, under the cover of ignorance.
16. I have myself seen the signature marked Q-l on the Will Ex. DW-2/A and the admitted signatures of Labhu on the aforesaid two sale deeds. No doubt, I do not know how to read and write Persian script in which the signatures of Labhu appear on the Will and the aforesaid sale deeds, yet a bare look at the questioned signature and the admitted signatures on the aforesaid documents give the impression that the questioned signature is nothing but an imitation of the admitted signatures.
17. As a result of the above discussion, Question No. 2 of the two questions on which the appeal was admitted, is answered in favour of the appellants-plaintiffs.
18. As regards Question No. 1, the evidence on record does not support the contention on which this question is based. So, the same is answered against the plaintiffs.
19. As a result of the above discussion, appeal is accepted, the judgment and decree of the trial Court, dismissing the suit of the appellants-plaintiffs, are set aside. Similarly, the judgment and decree of the first Appellate Court, affirming the decree of dismissal of the suit, are also set aside. Consequently, the suit of the appellants-plaintiffs is decreed and it is declared that the plaintiffs have inherited the estate of deceased Labhu alongwith respondent-defendant No. 1 Kali Dass, in equal shares. Further, decree for joint possession to the extent of their share is also passed in favour of the appellants-plaintiffs and against respondent-defendant No. 1 Kali Dass.