Himachal Pradesh High Court
Kuldeep Kumar vs Om Parkash And Others on 27 December, 2023
Author: Virender Singh
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. : 252 of 2020 .
Reserved on : 27.09.2023
Decided on : 27.12.2023
Kuldeep Kumar ...Appellant
Versus
Om Parkash and others ...Respondents
Coram
The Hon'ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1 Yes.
For the appellant : Mr. K.D. Sood, Senior Advocate, with Mr. Rahul Gathania, Advocate.
For the respondents : Mr. Ajay Sharma, Senior Advocate, with Ms. Kavita Kajal, Advocate, for respondents No. 1
(a) to 1 (e), 2, 4 (b) to 4 (d).
None for respondent No. 3.
Name of respondent No. 4 (a) stands already deleted.
Mr. Shekhar Badola, Advocate, vice Mr. Parav Sharma, Advocate, for respondent No. 5.
Mr. Romesh Verma, Senior Advocate, with Mr. Sumit 1 Whether Reporters of local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 26/01/2024 20:32:16 :::CIS 2 Sharma, Advocate, for
respondents No. 6 to 8.
.
Virender Singh, Judge.
Appellant-Kuldeep Kumar has filed the present Regular Second Appeal, against the judgment and decree, dated 24th September, 2020, passed by the learned District Judge, Hamirpur (hereinafter referred to as the 'First Appellate Court'), in Civil Appeal No. RBT-85/2019, titled as Kuldeep Kumar versus Om Parkash and others.
2. Vide judgment and decree, dated 24th September, 2020, the learned First Appellate Court has partly allowed the appeal filed by appellant-Kuldeep Kumar and modified the judgment and decree, dated 24th March, 2017, passed by the Court of learned Senior Civil Judge, Nadaun, District Hamirpur, H.P. (hereinafter referred to as the 'trial Court') in Civil Suit No. 105/2006, titled as Om Parkash and another versus Yashodhan Devi and others.
3. By virtue of judgment and decree, dated 24th March, 2017, the learned trial Court has granted the following relief to the plaintiffs, in the said suit:
::: Downloaded on - 26/01/2024 20:32:16 :::CIS 3"34. In view of my findings on the aforesaid issues, suit of the plaintiffs is decreed to the following effect:
.
(i) the will Ext. DW4/A along with its consequential mutation is declared null and void having no binding effect upon the plaintiffs.
(ii) the plaintiffs are entitled for decree for permanent prohibitory injunction by which defendants are restrained from raising arbitrary construction, changing the nature, alienating the specific portion beyond their individual shares till the main suit is not partitioned by metes and bounds."
4. In appeal, the learned First Appellate Court has modified the said judgment and decree, by passing the following judgment and decree:
"36. In view of the above, the present appeal is partly allowed. The judgment and decree passed by the learned trial Court are modified and the injunction for restraining the defendants from raising construction or alienating the specific portion of the suit land is vacated. Subject to this modification, the rest of the judgment is upheld. Decree sheet be prepared accordingly. The file of trial Court along with a copy of this judgment be returned, while that of this Court be consigned to Record Room after completion."
5. For the sake of convenience, parties to the present lis, are, hereinafter, referred to, in the same manner, in which, they were referred to, by the learned trial Court.
6. Brief facts, leading to the filing of the present appeal, before this Court, may be summed up, as under:
::: Downloaded on - 26/01/2024 20:32:16 :::CIS 46.1. Plaintiffs-Om Parkash and Joginder Singh, sons of Saran Dass, have filed the Civil Suit seeking the .
declaration, to the effect that the plaintiffs and defendants are owners in possession, in equal shares of the land,comprised in:
(i) land measuring 264-858 sq. mtrs. i.e. 1673/4648 share in khata No. 35, khatauni No. 36, khasra Nos. 338, 339, 340, 341, 342, 343, 344, 348, 349, 350, 352, plots 11, measuring 735-91 sq. mtrs.
(ii) Khata No. 30, khatauni No. 31, khasra No. 322, 331, 425, 426 and 427, plots 5, area 8496-93 sq. mtrs.
(iii) area 27-87-26 sq. mtrs. ½ share of khata No. 33, khatauni No. 34, Khasra Nos. 45, 46, 47, 48, 49, 49/1, 51, 52, 54, 55, 62/1, 119, 182, 183, 328, 329, 445, plots 17, measuring 5574-52 sq. mtrs., measuring 2787-26 sq. mtrs. i.e. ½ share.
(iv) area 40-85 sq. mtrs. 17/536 share of khata No. 34, khatauni No. 35, khasra Nos. 330, 333, ::: Downloaded on - 26/01/2024 20:32:16 :::CIS 5 334, 345, 346, 347, plots 6, area 1288-02 sq. mtrs.;
.
as per jamabandi for the years 1999-2000 of Mahal Doli Gharana Mouza Kohla, Teh.
Nadaun, Distt. Hamirpur, (H.P.)
(v) area 2618-48 sq. mtrs.
34564021/570306396 share in khata No. 30, khatauni No. 56, khasra Nos. 87, 88, 90, 106 area 43205-03 sq. mtrs., as recorded in the jamabandi for the years 1999-2000, of Mahal Tillu-Ist, Mouza Jalari, Teh. Nadaun Distt.
Hamirpur (H.P.).
(vi) area 0-11-80 hectares ½ share of khata No. 126, khatauni No. 131, khasra Nos. 258, 261, 360, 575/1, 576, kita 5 area 0-23-61 Hects;
(vii) area 0-01-07 hectares 1/6 share of khata No. 128, khatauni No. 133, khasra Nos. 302 area 0-06-44 hectares;
as recorded in jamabandi for the year 1999- 2000 of Mahal Tillu Khasa Mouza Jalari, Tehsil Nadaun, Distt. Hamirpr (H.P.);
::: Downloaded on - 26/01/2024 20:32:16 :::CIS 6(viii) 0-00-46 hectares 1/4th share of khata No. 49, khatauni No. 112, khasra No. 263/202 area .
0-19-25 hectares, as recorded in jamabandi for the years 1993-94, for Mahal Gagal Moua jalari, Tehsil Nadaun, Distt. Hamirpur (H.P.);
(ix) area 0-22-38 hectares ½ share of khata No. 44 min, khatauni No. 102 min, khasra Nos. 314/1, 347/2, 398/1, 398/2, 398/5 plots 5 area 0-44-74 hectares, as recorded in the remark column with red ink in Misal-Hakiyat Bandowasti Jadidsani for the year 1993-94 of Mahal Gagal Mouza Jalari Tehsil Nadaun Distt.
Hamirpur, (H.P.);
(x) area 0-8 marlas ½ share of khata No. 147, khatauni No. 165, khasra No. 251 area 0-16 marlas, as recorded in jamabandi for the years 1990-91 of Village Kot, Mouza Kohla, Tehsil Nadaun, Distt. Hamirpur (H.P.);
(xi) area 35-05 sq. decimeters ½ share of khata No. 183, khaauni No. 201 (old khasra No. 277 min) new khasra Nos. 2048 and 2201, total ::: Downloaded on - 26/01/2024 20:32:16 :::CIS 7 area 70-10 sq. decimeters, as recorded in the remark column with red ink in jamabandi for .
the year 1990-91 of Village Kot Mouza Kohla, Tehsil Nadaun, Distt. Hamirpur (H.P.) (hereinafter referred to as the 'suit land'), on the basis of Will, dated 13th April, 2006, executed by Yashodhan Devi, wife of Saran Dass.
6.2. In addition to this, the plaintiffs have also pleaded that the Will, dated 6th July, 2003, propounded by defendant No. 1-Yashodhan Devi, allegedly stated to be executed by Saran Dass, in her favour, is a fraudulent and forged document. The said document is stated to have got prepared after the death of Saran Dass, in collusion with the marginal witnesses-Kartar Singh and Parmanand, and scribe-Amarjit, with ulterior motive, to deprive the plaintiffs from their share in the suit land.
6.3. It is their further case that Saran Dass expired intestate and as such, Will, dated 6th July, 2003 is a forged document. They have also highlighted the suspicious circumstances that Saran Dass never executed any ::: Downloaded on - 26/01/2024 20:32:16 :::CIS 8 document, in favour of Yashodhan Devi, as he was not in a fit state to execute a document or Will, dated 6th July, 2003.
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7. On the basis of the above facts, the relief, as claimed in the plaint, has been sought.
8. When put to notice, the suit has been contested and resisted only by defendants No. 1, 4 and 5, by filing the written statement, in which, they have taken the preliminary objections, that the suit is not maintainable, as the Will, dated 6th July, 2003, is a genuine Will and the same has been executed by deceased Saran Dass in a sound disposing state of mind; that the plaintiffs have no cause of action to file the present suit, as the plaintiffs have also filed the revision before the Sub Divisional Collector, Nadaun on 17 th March, 2006, challenging mutation No. 70, which has been assailed, in the present suit; that the plaintiffs are estopped from filing the present suit by their own act and conduct;
that the plaintiffs have got no locus standi to file the present suit; that the suit land is not a coparcenary and ancestral property; and that the suit is not within limitation; and that the suit has not been properly valued.
::: Downloaded on - 26/01/2024 20:32:16 :::CIS 98.1. On merits, the contents of the suit have been resisted by defendants No. 1, 4 and 5, by pleading that .
before his death, deceased Saran Dass has duly executed the Will, dated 6th July, 2003, and, on the basis of the said Will, defendant No. 1-Yashodhan Devi is the owner in possession of the suit land, as such, the plaintiffs and other defendants have no legal right, title or interest, in the suit land.
Supporting the Will, all the allegations, which have been levelled, by the plaintiffs, are stated to be a bundle of lies.
8.2. In addition to this, the factum of filing of the proceedings, which were initiated by the plaintiffs, against the sanctioning of mutation No. 70, has also been re-
asserted.
9. On the basis of the above facts, a prayer has been made to dismiss the suit.
10. Defendants No. 2 and 3 have filed their separate written statement, admitting the claim of the plaintiffs.
11. Plaintiffs have filed the replication, to the written statement, filed by defendants No. 1, 4 and 5, denying the preliminary objections, as well as, the contents of the written ::: Downloaded on - 26/01/2024 20:32:16 :::CIS 10 statement, by virtue of which, the suit has been contested, while re-asserting that of the plaint.
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12. From the pleadings of the parties, the learned trial Court has framed the following issues, vide order, dated 7th May, 2009:
"1. Whether the parties are co-owners of the suit land in equal shares, as prayed for?
OPP
2. Whether the suit land in the hands of the parties is an ancestral and coparcenary property and Late Sh. Saran Dass, was not competent to execute any will regarding the same, as claimed for?
OPP
3. Whether the plaintiffs are entitled for consequential relief of permanent prohibitory injunction, as prayed for?
OPP
4. Whether Late Sh. Saran Dass, has executed a legal and valid will in favour of Late Smt. Yashodhan Devi, as alleged?
OPD
5. Whether the will dated 06.07.2003, is a forged document being got prepared after the death of the testator in connivance with the scribe and marginal witnesses, as alleged?
OPD
6. Whether the plaintiffs have no locus-standi to file the present suit, as alleged?
OPD
7. Whether the suit is not within limitation, as alleged?
OPD ::: Downloaded on - 26/01/2024 20:32:16 :::CIS 11
8. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction, as alleged?
OPD .
9. Whether the plaintiffs are estopped from filing the suit by their own act and conduct, as alleged?
OPD
10. Relief."
13. Thereafter, parties to the lis were directed to adduce the evidence. Consequently, both the parties have
14. to led oral, as well as, documentary evidence.
The learned trial Court, after hearing the learned counsel for the parties, vide judgment and decree, dated 24 th March, 2017, has declared the Will, Ex. DW-4/A, alongwith its consequential mutation, as null and void and not binding on the plaintiffs. In addition to this, the plaintiffs have also been held entitled for decree of permanent prohibitory injunction, restraining the defendants from raising arbitrary construction, changing the nature, alienating the specific portion beyond their individual shares, till the suit land is not partitioned, by metes and bounds.
15. Aggrieved from the judgment and decree, dated 24th March, 2017, defendant No. 5-Kuldeep Kumar has preferred the Civil Appeal, before the learned First Appellate Court, challenging the findings of the learned trial Court, on ::: Downloaded on - 26/01/2024 20:32:16 :::CIS 12 issues No. 1, 3, 4, 6 to 9, on the ground that the learned trial Court has not applied its judicial mind to the facts and .
circumstances of the case.
16. The findings of the learned trial Court have also been challenged on the ground that the learned trial Court has wrongly discarded the Will in question, on the ground, that the testator was not having a sound disposing mind and that the Will in question is shrouded by suspicious circumstances. The learned trial Court is stated to have failed to take note of various important aspects of the case, whereas, according to defendant No. 5, the Will, dated 6 th July, 2003, was a valid document.
17. It is the case of defendant No. 5 that the learned trial Court has not taken into account the fact that all the legal heirs of Saran Dass, including the scribe and marginal witnesses of the Will, were present, when, mutation, Ex. P-9, was attested and none of them have raised any question, regarding the genuineness of the Will in question.
18. Another ground of attack is that the learned trial Court has wrongly held that deceased Saran Dass was not mentally capable to execute the Will in question.
::: Downloaded on - 26/01/2024 20:32:16 :::CIS 1319. On the basis of the above facts, a prayer has been made to allow the appeal, by setting aside the judgment and .
decree, passed by the learned trial Court.
20. The learned First Appellate Court, after hearing the learned counsel appearing for the parties, has partly allowed the appeal, by modifying the judgment and decree passed by the learned trial Court and injunction for restraining the defendants from raising construction or alienating the specific portion of the land has been ordered to be vacated.
21. Aggrieved from the said judgment and decree, the present appeal has been preferred by defendant No. 5- Kuldeep Kumar.
22. By way of the present appeal, the findings of the learned Courts below have been assailed, mainly on the ground that the learned trial Court misread the oral, as well as, the documentary evidence. According to appellant, Will, Ex. PW-4/A and the mutation, Ex. P-1, have wrongly been misconstrued by ignoring the documents, Ex. DW-7/A, Ex.DW-7/B and Ex. DW-7/C. ::: Downloaded on - 26/01/2024 20:32:16 :::CIS 14
23. The learned First Appellate Court is stated to have wrongly held that the statements, Ex. DW-7/A, Ex. DW-7/B .
and Ex. DW-7/C, are inadmissible, whereas, in the Civil Suit, titled as Kuldeep Kumar versus Om Prakash, the same were duly proved. The statements were duly tested by cross-
examination.
24. The statement of PW-2, Dr. Jasmine Dass, is also stated to be inadmissible, as, according to the appellant, she has not treated deceased Saran Dass, nor, deceased Saran Dass was under her treatment, from the year 1987 to 2003.
As such, according to the appellant, no reliance could be placed upon the certificate issued by her, Ex. PW-2/A.
25. The other ground to challenge the findings of the learned Courts below is that it has wrongly been held by the Courts below that deceased Saran Dass was not in a fit state of mind to execute the Will, whereas, as per the record, it has been proved that he was discharged from Hospital on 28 th June, 2003, whereas, the Will in question was executed on 6th July, 2003 and he expired on 14th August, 2003.
26. On the basis of the above grounds, Mr. K.D. Sood, learned Senior Counsel, appearing for the appellant, has ::: Downloaded on - 26/01/2024 20:32:16 :::CIS 15 prayed that the appeal may kindly be accepted, by dismissing the suit, with costs.
.
27. This appeal has been sought to be admitted, on the following substantial questions of law:
"1. Whether the findings of the courts below are perverse, based on misreading of oral and documentary evidence as also pleadings of the parties and the mis-construction of the basic documents of title i.e. the Will Ext. PW-4/A and the mutation P-1 and ignoring the documents Ext. DW-7/A, Ext. DW-7/B, Ext. DW-7/C which stood duly proved?
2. Whether the admissions made at the time of mutation ad the affidavits Ext. DW-7/A, Ext. DW- 7/B, Ext. DW-7/C in judicial proceedings could be ignored and treated to be inadmissible in evidence which has vitiated the findings?
3. Whether the alleged suspicious circumstances attached to the execution of the Will Ext. PW-4/A were explained and the due execution of the Will of Shri Saran Dass proved and the findings to the contrary are perverse and not sustainable in law?"
28. The present appeal has been filed under the provisions of Section 100 of the Code of Civil Procedure (hereinafter referred to as 'CPC'). It is now no more res integra that the High Court should not interfere in the concurrent findings of facts, except in cases, where, it is found that the Courts below have ignored the material facts.
The findings of the learned Courts below should only be ::: Downloaded on - 26/01/2024 20:32:16 :::CIS 16 interfered with in the Regular Second Appeal, in cases, where the concurrent findings of facts are vitiated by non-
.
consideration of relevant evidence or by essentially erroneous approach to the matter or where, the learned Courts below fail to consider the relevant evidence. The existence of substantial question of law is a condition precedent for the High Courts to assume jurisdiction of entertaining Second Appeal. The conditions, as specified in Section 100 of the CPC, are required to be fulfilled and thereafter, findings, so recorded, by the learned Courts below, could be interfered with.
29. The Hon'ble Supreme Court, in a case, titled as Ishwar Dass Jain (dead) through LRs versus Sohan Lal (dead) by LRs, reported in (2000) 1 Supreme Court Cases 434, has laid down the parameters, in which, the interference in the findings recorded by the Courts below, can be made.
"10. Now under Section 100 CPC, after the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so.
11. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not ::: Downloaded on - 26/01/2024 20:32:16 :::CIS 17 considered which, if considered would have led to an opposite conclusion. This principle has been laid down in a series of judgments of this Court in relation to Section 100 CPC after the 1976 .
Amendment. In Dilbagrai Punjabi v. Sharad Chandra [1988 Supp SCC 710] while dealing with a second appeal of 1978 decided by the Madhya Pradesh High Court on 20-8-1981, L.M. Sharma, J. (as he then was) observed that: (SCC pp. 712- 13, para 5) "The court (the first appellate court) is under a duty to examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding. This is the situation in the present case."
In that case, an admission by the defendant tenant in the reply notice in regard to the plaintiff's title and the description of the plaintiff as "owner" of the property signed by the defendant were not considered by the first appellate court while holding that the plaintiff had not proved his title. The High Court interfered with the finding on the ground of non-
consideration of vital evidence and this Court affirmed the said decision. That was upheld. In Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647] with reference to a second appeal of 1978 disposed of on 5-4-1991, Venkatachaliah, J. (as he then was) held: (SCC p. 652, para 10) "... where the findings by the court of facts is vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings."
::: Downloaded on - 26/01/2024 20:32:16 :::CIS 18Again in Sundra Naicka Vadiyar v. Ramaswami Ayyar [1995 Supp (4) SCC 534] it was held that where certain vital documents for deciding the question of possession were ignored -- such as a .
compromise, an order of the Revenue Court --
reliance on oral evidence was unjustified. In yet another case in Mehrunnisa v. Visham Kumari [(1998) 2 SCC 295] arising out of second appeal of 1988 decided on 15-1-1996, it was held by Venkataswami, J. that a finding arrived at by ignoring the second notice issued by the landlady and without noticing that the suit was not based on earlier notices, was vitiated and the High Court could interfere with such a finding. This was in second appeal of 1988 decided on 15-1- 1996.
12. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In Sri Chand Gupta v. Gulzar Singh [(1992) 1 SCC 143] it was held that the High Court was right in interfering in second appeal where the lower appellate court relied upon an admission of a third party treating it as binding on the defendant. The admission was inadmissible as against the defendant. This was also a second appeal of 1981 disposed of on 24- 9-1985."
30. Being guided by the above decision, now, this Court would proceed to ascertain as to whether any substantial question(s) of law is/are involved, in the present appeal, or not.
31. Relationship of the parties is not disputed, in this case. After framing of the issues, plaintiff No. 1, Om ::: Downloaded on - 26/01/2024 20:32:16 :::CIS 19 Prakash, stepped into the witness box, as PW-1. According to him, Saran Dass was his father, who expired on 14 th .
August, 2003. His property has been inherited by all and mutation of the same was also entered in the names of all his legal representatives. No one had made any objection.
According to him, the defendants, after the death of Saran Dass, got forged a Will, as, Saran Dass had not executed any Will, during his life time.
r Saran Dass, prior to his death, remained ill and was not in a position to execute the same.
The suit land, as per the deposition of this witness, is ancestral property. He has also deposed that Saran Dass, during his life time, had not executed any Will. After the death of Saran Dass, his property was inherited by six brothers and mother of this witness. He has denied that his father had executed Will in favour of his mother. He has reasserted that after the death of their father, mutation was sanctioned in the name of six brothers. When, the mutation of the suit land was sanctioned, this witness was present there and he has also put his signatures. The father of this witness was literate and he also remained Pradhan for about 25-26 years. He has denied that the alleged Will bears the ::: Downloaded on - 26/01/2024 20:32:16 :::CIS 20 signatures of his father. He has also denied that on 13 th April, 2006, his mother had executed Will in favour of .
Kuldeep and Amarjit. According to him, his mother has executed the Will, in favour of her six sons.
32. To rebut this evidence, the defendants have examined Subhash Chand as DW-1. He has proved mutation No. 70, dated 7th November, 2003 as Ex. P-10 and Ex. P-11. According to him, the said mutation was not sanctioned in his presence.
33. DW-3, Bal Krishan, has deposed that mutation No. 70 was attested by him. Copy of mutation is Ex. P-10 and Ex. P-11. The said mutation was sanctioned on the basis of Will, dated 6th July, 2003. The legal representatives of testator Saran Dass were informed. At the time of sanctioning the mutation, the persons, who were present there, had not raised any objection. The persons present there had considered the Will as genuine, hence, had put their signatures. Kartar Singh and Parma Nand have also put their signatures. This witness has denied that the signatures over Ex. P-11 were obtained on the pretext of sanctioning the mutation in the name of all the legal ::: Downloaded on - 26/01/2024 20:32:16 :::CIS 21 representatives. He has denied that this has been done in connivance with Kuldeep and Amarjit.
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34. DW-4, Amarjit Singh, has deposed that Saran Dass was his father. His father got prepared Will Ex. DW-
4/A, through him. He has scribed the same, as per the directions of Saran Dass. After scribing the same, the contents of the Will were read over to Saran Dass. Thereafter, Saran Dass, Parma Nand, Kartar and this witness had put their signatures over Ex. DW-4/A, after reading the contents of the same. The Will was executed in favour of Yashodhan Devi, mother of this witness.
34.1. This witness is shopkeeper by profession. He has admitted that he is not the registered deed writer. He has admitted that except the document, Ex. DW-4/A, he has not scribed any document. His father was shopkeeper by profession. He remained as Sarpanch and also remained Pradhan for about 28 years. He was also a social worker.
The Tehsil complex is situated 200-300 metres away from their home. The Will was scribed at about 4.00-5.00 p.m. At that time, Parma Nand, Kartar, this witness and his two brothers, namely, Joginder and Sat Prakash, were present ::: Downloaded on - 26/01/2024 20:32:16 :::CIS 22 there. According to him, later on, Om Prakash also came there. The witnesses were summoned by Saran Dass .
himself. Again stated that the same were called by Joginder Singh, at the instance of Saran Dass.
34.2. As per this witness, on the day, when the Will was scribed, his father was having sound disposing mind. The papers, used for scribing the Will, were arranged by his father. Firstly, Parma Nand had come there and after him, Kartar Chand had come. This witness has feigned his ignorance that Kartar Singh Lambardar was working as compounder with his brother Kuldeep. He has denied that on 6th July, 2003, Saran Dass was under treatment from CMC Ludhiana.
34.3. As per this witness, the neighbouring shopkeepers were not associated as witnesses in the Will. He has admitted that in the Tehsil complex, deed writers used to sit. He has also admitted that the heart of Saran Dass was operated upon. The amount was spent jointly by all the brothers. Ex. DW-4/A does not bear the signatures of Parma Nand. Rest, this witness has denied all the suggestions, ::: Downloaded on - 26/01/2024 20:32:16 :::CIS 23 which were put to him, by the learned counsel appearing for the plaintiffs.
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35. DW-5, Kartar Singh, has also been examined as one of the attesting witnesses. According to him, Will, Ex.
DW-4/A was scribed in his presence. The same was executed in favour of the wife of Saran Dass. After scribing the Will, the same was read over. At that time, Parma Nand was present there. Other than this witness, Amarjit was also present there. Parma Nand has since been expired. The mutation of the land has been sanctioned. No one has raised any objection to the Will, Ex. DW-4/A. 35.1. This witness has admitted that he was working as compounder with Dr. Kuldeep Singh for about eighteen years. The Will was scribed at about 5.00 p.m. He was called by Parma Nand and Kuldeep. All the persons were sitting in the room adjoining to the verandah. The paper for scribing the Will was brought by Amarjit. He has feigned his ignorance about the fact that Saran Dass remained Pradhan for 20-25 years. Saran Dass was running a grocery shop. He has denied that the Will in question was executed by Kuldeep and Amarjit, in connivance with this person. He has also ::: Downloaded on - 26/01/2024 20:32:16 :::CIS 24 denied that at the time of execution of the Will, the testator was not having a sound disposing mind. He has admitted .
that Saran Dass underwent surgery twice for heart problem.
35.2. This witness has feigned his ignorance that on 6 th July, 2003, Saran Dass was under treatment in CMC, Ludhiana. Again stated that on 6 th July, 2003, Saran Dass has got scribed the Will. He has also admitted that the Tehsil Complex is situated at a distance of 200-300 metres away from their house. Voluntarily stated that he came back after undergoing the surgery. He has admitted that when a person is unable to go to Tehsil, then, application could be moved before the Tehsildar, with a request to register the document by visiting the house of the said person.
36. DW-6, Kuldeep Kumar, has stated that his father has executed a Will, in favour of the mother of this witness.
Will, Ex. DW-4/A, was scribed at the direction of his father.
At that time, he was having a sound disposing mind. After scribing the Will, his father had directed to read the same.
The same was read over in presence of the witnesses.
Thereafter, Saran Dass had put the signatures in presence of the witnesses and after that, the attesting witnesses, Parma ::: Downloaded on - 26/01/2024 20:32:16 :::CIS 25 Nand and Kartar Singh, had put their signatures in the presence of the witnesses. The Will was scribed by Amarjit .
Singh. The mutation was sanctioned, as per the Will.
Yashodhan Devi was not present at the time of mutation. All present there were identified and their signatures were obtained. No one had raised objection. Parma Nand has since been expired. The mortgage deed, Mark A, has been signed by the father of this witness and Parma Nand. He has also produced copy of mutation, Ex. P-9 and Ex. P-10.
36.1. This witness has retired as Medical Officer from Ayurvedic Department, in the year 2012. Saran Dass and Yashodhan Devi were looked after by this witness. He also took them for treatment to CMC Ludhiana, PGI Chandigarh and AIIMS Delhi. The amount of about ₹ 20 lakh was also spent by him. Land of Tillu was purchased by this witness in the name of his father. This witness are six brothers. His brother Amarjit Singh is having a shop. Kartar Lambardar was working as helper with this witness, for about 12-13 years.
36.2. The father of this witness was renowned person of Nadaun and was also associated in the freedom struggle. He ::: Downloaded on - 26/01/2024 20:32:16 :::CIS 26 has admitted that his father was leader of Congress Party and till his death, he was having sound disposing mind.
.
Voluntarily stated that he remained unconscious for 2-3 days. He was brought back in unconscious condition. The father of this witness and Parma Nand, during their life time, resided separately. He has also admitted that the relations of his father with Parma Nand were not cordial. They were not in talking terms.
r He has denied that his father was treating all the sons equally. He has admitted that his elder brother Om Prakash had gone to Haridwar to perform the last rites. Voluntarily stated that due to the asking of the brotherhood, he has authorized him to go to Haridwar.
36.3. Tehsil complex is stated to be situated at a distance of 300 metres from his house. His father expired on 14th August, 2003. This witness has called Kartar Chand.
The mother of this witness was residing with him. This witness has admitted that thereafter, he got executed the Will of his mother in his favour and in favour of Amarjit Singh. Voluntarily stated that Yashodhan Devi had executed the said Will voluntarily.
::: Downloaded on - 26/01/2024 20:32:16 :::CIS 2737. DW-7, Sanjeev Kumar, Civil Ahlmad, has proved the documents, Ex. DW-7/A, Ex. DW-7/B and Ex.DW-7/C. .
38. RPW-2, Dr. Jasmine Dass, Medical Officer, CMC Ludhiana, has deposed that Saran Dass was their patient from the year 1987 to 2003. In the year 2003, he was suffering from Diabetes related kidney failure, hypertension, heart blockage, brain stem stroke. In the month of July, 2003, when, Saran Dass was brought to hospital, he was brought in a drowsy condition. Elaborating this fact, she has stated that in such condition, the patient does not pay attention and there is loss of consciousness. In this condition, patient cannot understand or comprehend any document. She has proved the document, Ex. RPW-2/A. 38.1. In her cross-examination, this witness has admitted that drowsiness could be due to medication. Saran Dass was got admitted by Kuldeep Kumar. The treatment agreement was also executed by Kuldeep Kumar with hospital. She has also admitted that the documents, Ex.
RPW-2/A to Ex. RPW-2/G were issued by their hospital.
Saran Dass remained under treatment for a long period.
Drowsiness could be extreme or it could be mild.
::: Downloaded on - 26/01/2024 20:32:16 :::CIS 2838.2. This witness has also admitted that as per the record, Kuldeep Kumar remained with the patient. This .
witness has not treated Saran Dass, but, has deposed, as per the record. She has further deposed that when, Saran Dass was discharged, his condition was improved, but, further stated, that he was again brought to Hospital, for treatment and then, he was not admitted. He was brought on 9 th August, 2003 and was discharged on 13 th August, 2003, on request.
39. The learned trial Court, in this case, has held that the document, Ex.DW-4/A, was not the consciously executed document. While holding so, the learned trial Court has also held that the testator was under long medication for his chronic diabetes and related ailment from the year 1987. On the basis of these facts, the Will in question has been declared as null and void.
40. These findings have been upheld by the learned First Appellate Court. While holding so, the learned First Appellate Court has relied upon the medical record, Ex. PW-
2/A. Relying upon the medical opinion, it has been held by the learned First Appellate Court that the patient with ::: Downloaded on - 26/01/2024 20:32:16 :::CIS 29 drowsiness was incapable to understand or comprehend any document.
.
41. The plaintiff has challenged the Will, allegedly executed by their father, in favour of their mother. The Will is a solemn document, which speaks after the death of the testator. The Will is a last document, executed by the testator, regarding the arrangement of his property, which would take place, after the death of the testator. When, the Will has been set up by the propounder, it is for him or her to dispel all the suspicious circumstances.
42. The term 'suspicious circumstances' has nowhere been defined, however, the Hon'ble Supreme Court in a case, titled as Smt. Indu Bala Bose & Ors. Versus Mahindra Chandra, reported in AIR 1982 SC 133, has explained the term 'suspicious circumstances'. Para-7 of the judgment, is reproduced, as under:
"7. This Court has held that the mode of proving a Will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are ::: Downloaded on - 26/01/2024 20:32:16 :::CIS 30 suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. Even where circumstances give rise to .
doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the Will to show that the testator's mind was not free. In such a case the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations. [See Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529; H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443 : 1959 Supp 1 SCR 426 : 1959 SCJ 507 : Rani Purnima Devi v. Kumar Khagendra Narayan Dev, AIR 1962 SC 567 : (1962) 3 SCR 195 : (1962) 1 SCJ 725]"
43. Similar view has again been taken by the Hon'ble Supreme Court, in a case, titled as Bharpur Singh & ors.
Versus Shamsher Singh, reported in 2009 (1) SLJ (SC)
694. Paras-17 and 18 of the judgment, are reproduced, as under:
::: Downloaded on - 26/01/2024 20:32:16 :::CIS 31"17. Suspicious circumstances like the following may be found to be surrounded in the execution of the Will.
i The signature of the testator may be .
very shaky and doubtful or not appear to be usual signature.
ii The condition of the testator's mind be very feeble and debilitated at the relevant time.
iii The deposition may be unnatural, improbable or unfair in the light of relevant circumstances lie exclusion of or absence of adequate provisions for the natural heirs without any reason.
iv The dispositions may not appear to be r the result of the testator's free will and mind.
v The propounder takes a prominent part in the execution of the Will.
vi The testator used to sign blank papers.
vii The Will did not see the light of the day for long.
viii Incorrect recitals of essential facts.
18. The circumstances narrated hereinbefore are not exhaustive. Subject to offer of reasonable explanation, existence thereof must be taken into consideration of the purpose of arriving at a finding as to whether the execution of the Will had duly been proved or not."
44. If the facts and circumstances of the present case are seen, then, the evidence adduced by the parties, clearly depicts that Saran Dass, who has mentioned his age in the ::: Downloaded on - 26/01/2024 20:32:16 :::CIS 32 Will, as 83 years, was admitted in CMC Ludhiana and in the alleged Will also, this fact has been mentioned that he .
underwent heart surgery twice. The Will was scribed by none other, but, the son of Saran Dass, who, admittedly, is neither a deed writer nor an Advocate and considering the fact that Tehsil complex is stated to be situated at a short distance from their home, the act of Amarjit to allegedly scribe the Will, by associating Kartar Singh, Lambardar, who is proved to be working as compounder with Kuldeep, another son of Saran Dass, in the considered opinion of this Court, the said document is not proved to be a consciously executed document, by the testator, in his sound disposing state of mind.
45. Before accepting a document, as validly executed Will, the Court is entitled to put itself into the testator's arm chair and is bound to bear in mind all circumstances, which, the testator would have taken into consideration, while making the disposition.
46. Before accepting a document as Will, it was for the propounder to satisfy the judicial conscience of the Court that the document, sought to be treated as validly executed ::: Downloaded on - 26/01/2024 20:32:16 :::CIS 33 Will, was the conscious execution of the document, by a person, who was having a sound disposing mind. In the .
alleged Will, no reason has been assigned to disinherit the natural flow of the succession.
47. Considering the medical condition of the testator, the evidence, which requires to be produced by the defendant, should be clear and convincing, so that, the conclusion can be drawn that the testator has executed the document out of his free will and with the sound disposing mind. The learned trial Court has rightly appreciated the factual position, as presented before it.
48. So far as the sanctioning of the mutation is concerned, the mutation does not confer any title. It is a process to keep the revenue record up to date.
49. Considering the above facts, this Court is of the view that the proposed substantial questions of law do not deserve to be treated as substantial questions of law.
50. Consequently, the findings of the Courts below are upheld and the appeal is dismissed, at the admission stage.
::: Downloaded on - 26/01/2024 20:32:16 :::CIS 3451. Pending miscellaneous applications are also disposed of accordingly.
.
52. Decree sheet be prepared accordingly.
( Virender Singh )
Judge
December 27, 2023
( rajni )
r to
::: Downloaded on - 26/01/2024 20:32:16 :::CIS
35
comprised in (i) Khata No. 116, khatauni No. 165, Khasra Nos. 251, area 0K-08M as per jamabandi for the years 1990- .
91 of Village Kot, Mouza Kohla, Tehsil Nadaun, District Hamirpur (H.P.); (ii) area measuring 35.05 sq. mtrs, i.e. ½ share of khata No. 183, khatauni No. 201, old khasra No. 277 min, new khasra No. 2048 and 2201, tottal area 70-10 sq. mtrs., as recorded in the remarks column with red ink in the jamabandi for the years 1990-91 of Village Kot, Mouza Kohla, Tehsil Nadaun, District Hamirpur (H.P.) alongwith Gair mumkin pucca single storeyed shop and another gair mumkin double storeyed shop kautchi existing in the above mentioned khasra Nos. 2046 and 2201; (iii) ½ share of khata No. 233, khatauni No. 243, khasra Nos. 2041, 2042, 2043 and 2044 and 2046, kita 5 area 294-73 sq. mtrs., khata No. 232, khatauni No. 242, khasra Nos. 2048 and 2201, kita 2, measuring 70-10 sq. mtrs. situated in Mahal Kot, Mouza Kohla, Tehsil Nadaun, Distt. Hamirpur (H.P.) ::: Downloaded on - 26/01/2024 20:32:16 :::CIS