Himachal Pradesh High Court
Ram Dei vs Smt. Chinta Mani And Another on 30 October, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No. 571 of 2011.
Reserved on: 29.10.2015.
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Decided on: 30.10.2015.
Ram Dei ......Appellant.
Versus
Smt. Chinta Mani and another .......Respondents.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting? Yes.
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For the appellant(s): Mr. Yogesh Chandel, Advocate.
For the respondents: Mr. Naveen K. Bhardwaj, Advocate, for respondent No.1.
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Justice Rajiv Sharma, J.
rt This regular second appeal is directed against the judgment and decree of the learned Addl. District Judge (FTC), Kullu, H.P. dated 9.8.2011, passed in Civil Appeal No. 05 of 2011.
2. "Key facts" necessary for the adjudication of this regular second appeal are that the appellant-plaintiff Ram Dei and respondent Prema Dei, filed a suit for declaration to the effect that Lal Singh, predecessor-in-interest of the plaintiffs had died intestate leaving behind the parties to the lis as his legal heirs and after the death of Lal Singh, the plaintiffs are joint owners-in-
in possession of the suit land to the extent of 2/3 share, i.e. 1/3 share each and the revenue entries showing the respondent-defendant (hereinafter referred to as the defendant) as owner-in-possession of the suit land vide mutation No. 6838 of Phati Shamshi, Kothi Khokhan, on the basis of the forged and fictitious registered Will No. 194 dated 17.5.1996 are wrong, illegal and contrary to the factual position. The consequential relief of permanent perpetual injunction to restrain the defendant from interfering in the peaceful ::: Downloaded on - 15/04/2017 19:16:23 :::HCHP 2 and joint ownership of the plaintiffs to the extent of 2/3 share over the suit land and from encumbering or changing the nature of the suit land in any .
manner, whatsoever and from forcibly dispossessing the plaintiffs from the suit land was also prayed for. Lal Singh died intestate on 15.1.2007 leaving behind the plaintiffs and defendant as his daughters. Twelve years prior to his death Lal Singh was suffering from Blood Pressure and Paralysis. Lal Singh had firstly suffered a mild attack of paralysis in the year 1994 and thus of he was not in a sound disposing state of mind. There was no question of executing the Will as Lal Singh loved his all the daughters equally and they rt were looking after his agricultural land. After the death of Lal Singh, the defendant started threatening the plaintiffs to oust and dispossess them from the suit land. When the plaintiffs were busy in performance of the last rites of deceased Lal Singh, defendant in connivance with the revenue officials got mutation No. 6838 attested on the basis of some procured, false and fabricated Will dated 17.5.1996.
3. The suit was contested by the defendant. According to the defendant Lal Singh, father of plaintiffs and defendant died on 14.1.2007.
He denied that he died intestate. Lal Singh before his death was sick and defendant rendered services to him and had also borne the expenses of his treatment. Lal Singh had executed his last and final Will dated 17.5.1996 DW-2/A, whereby he bequeathed his property situated in Phati Shamshi, Kothi Khokhan, Tehsil and Distt. Kullu in the manner that 1-10-00 bighas in favour of plaintiff No. 2 Prema Dei and 1-00-00 bighas in favour of plaintiff ::: Downloaded on - 15/04/2017 19:16:23 :::HCHP 3 No. 1 Ram Dei and rest of the land was bequeathed by him in favour of Chinta Mani, defendant.
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4. The replication was filed. The learned Civil Judge, (Sr. Divn.), Lahaul and Spiti at Kullu, framed the issues on 11.6.2007. The suit was dismissed vide judgment dated 15.1.2011. The plaintiff Ram Dei, feeling aggrieved, preferred an appeal against the judgment and decree dated 15.1.2011. The learned Addl. District Judge (FTC, Kullu, dismissed the same of on 9.8.2011. Hence, this regular second appeal.
5. The regular second appeal was admitted on the following rt substantial questions of law on 22.3.2012:
"1. Whether the learned Court below can reach to a finding regarding the validity of the will merely on the basis of the oral evidences of given by the DW-1?
2. Whether the learned Court below is right in holding the alleged will as valid, by ignoring the evidence on record which shows that the defendant is involved in the execution of the will and other suspicious circumstances as is pointed out by the appellant/plaintiff in the execution of alleged will?
3. Whether the learned court below can reach to the finding regarding the state of the mind of the testator and dismisses the appeal of the appellant/plaintiff, by ignoring the specific evidence regarding the mental state of the testator given by PW-2?"
6. Mr. Yogesh Chandel, Advocate, on the basis of the substantial questions of law framed, has vehemently argued that both the Courts below have not correctly appreciated the documentary as well as the oral evidence.
According to him, Will dated 17.5.1996 was not valid Will. He then ::: Downloaded on - 15/04/2017 19:16:23 :::HCHP 4 contended that the defendant has failed to remove the suspicious circumstances surrounding the Will. He lastly contended that the testator .
was not in sound disposing state of mind. On the other hand, Mr. Naveen K. Bhardwaj, Advocate, has supported the judgments and decrees passed by both the Courts below.
7. Since all the substantial questions of law are inter-connected, hence are taken up together for discussion to avoid repetition of evidence.
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8. I have heard learned counsel for the appellant and have also gone through the judgments and records of the case carefully.
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9. PW-1 Ram Dei has testified that her father had three daughters i.e. She, Prema Dei and Chinta Mani. He had equal love and affection for all the three daughters. Her father was suffering from High Blood Pressure and he also suffered a paralytic attack in the year 1994. He was unable to walk.
All the sisters were looking after their father. They all had cultivated his land.
In the year 1999, their father had again suffered a paralytic attack as a result of which he was unable to speak and walk. Her father during his life time had never executed any Will. The alleged Will dated 17.5.1996 was forged and fictitious document. She has admitted that she has no animosity with the scribe. She was having no animosity with Sudhir Bhatnagar and Pradeep Sharma, the marginal witnesses of the Will. She also admitted during the course of cross-examination that Lal Singh used to reside with defendant.
10. PW-2 Keshav Ram deposed that he was in visiting terms with Lal Singh. Lal Singh never disclosed with him that he had executed any Will. In the year 1994, Lal Singh had a paralytic attack as a result of which he was ::: Downloaded on - 15/04/2017 19:16:23 :::HCHP 5 unable to walk. In the year 1999 again he had suffered an attack of paralysis due to which he was unable to walk and sleep. Lal Singh and his wife were .
looked after and maintained by all the three sisters.
11. The defendant has appeared as DW-1. She stated that Lal Singh due to old age used to remain ill. On 17.5.1996 Lal Singh had executed a Will (Ext. DW-2/A) in her favour and in favour of Ram Dei and Prema Dei.
On 17.5.1996, he was in a perfect state of mind. The Will was executed by of Lal Singh in a sound disposing state of mind without any influence or pressure from anyone. The Will was got registered by Lal Singh before Sub rt Registrar, Kullu. On that day, her father had handed over the Will to her in presence of both her sisters. She had rendered all sorts of services to Lal Singh as he was residing with her. Lal Singh expired on 15.1.2007. The Will bears the signatures of Lal Singh. She has denied the suggestion that her father has suffered a paralytic attack in the year 1994. The Will was scribed by Niranjan Dass Mahant DW-2. Pardeep Sharma DW-3 is one of the marginal witnesses.
12. DW-2 Niranjan Dass Mahant has led his evidence by filing affidavit. He deposed that he was working as petition writer. Sh. Lal Singh alongwith Pardeep Sharma Advocate and Sudhir Bhatnagar had come for scribing the Will. He scribed the Will. The Will was scribed at the instance of Lal Singh without any undue influence. Sh. Pardeep Sharma and Sudhir Bhatnagar Advocates were the marginal witnesses of the Will dated 17.5.1996. The Will was scribed in Court premises at Kullu. The Will was read over to the testator as well as the marginal witnesses. Sh. Lal Singh ::: Downloaded on - 15/04/2017 19:16:23 :::HCHP 6 after admitting the contents of the same to be true and correct put his signatures on both the papers of the Will. The marginal witnesses thereafter .
put their signatures in his presence. He has entered the Will at Sr. No. 469 of his Register.
13. DW-3 Sh. Pardeep Sharma, has also led his evidence by way of affidavit. He testified that Lal Singh came to the Court on 17.5.1996. He got the Will scribed out of his free volition. The Will was written by Niranjan of Dass, Petition Writer without any undue influence. He and Sudhir Bhatnagar were the marginal witnesses of the Will. The contents of the Will were read rt over and explained to Lal Singh. Lal Singh after admitting the contents of the same to be true and correct put his signatures on the Will in their presence on both the pages. He also signed the same as a marginal witness alongwith Sh. Sudhir Bhatnagar. Thereafter, the Will was got registered in the office of Sub Registrar, Kullu. The Sub Registrar Kullu, has read over the contents of the Will to Lal Singh and he after admitting the contents to be true and correct put his signatures on the endorsement. They also put their signatures on the endorsement in the presence of Sub Registrar.
14. The Will Ext. DW-2/A is dated 17.5.1996. The defendant has duly proved the execution of the Will Ext. DW-2/A. The Will was scribed by DW-2 Niranjan Dass Mahant in the Court premises. DW-3 Pardeep Sharma was the marginal witness along with Sudhir Bhatnagar. The Will was scribed by Lal Singh without any undue influence. The Will was also registered before the Sub Registrar, Kullu. It has come in the evidence that the defendant was looking after Lal Singh. PW-1 Ram Dei has admitted that Lal ::: Downloaded on - 15/04/2017 19:16:23 :::HCHP 7 Singh used to reside with defendant. A specific suggestion put to DW-1 Chinta Mani that Lal Singh has suffered paralytic attack in the year 1994 was .
denied by the defendant. According to her, he was in sound state of disposing mind. The contents of the Will were read over and explained to Lal Singh. He thereafter signed the same and after that marginal witnesses signed the Will. The same procedure was followed before the Sub Registrar, Kullu. It is also proved from Ext. DA, copy of Parivar Register that Lal Singh, of Ram Dei and Chinta Mani were residing together at Village Tegu Behar, Shamshi. Merely that the marginal witnesses were from the same locality or rt same village where Lal Singh used to reside would not cast doubt on the execution of the Will. The Courts below have correctly appreciated the oral as well as documentary evidence on record. The Will dated 17.5.1996 is validly executed by Lal Singh. The Will was executed by Lal Singh in sound disposing state of mind. The substantial questions of law are answered accordingly.
Consequently, there is no merit in this appeal and the same is dismissed, so also the pending application(s), if any.
October 30, 2015, ( Rajiv Sharma ),
(karan) Judge.
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