Himachal Pradesh High Court
Smt. Asha Devi vs Smt. Tarsem Devi And Others on 2 April, 2015
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No. 30 of 2004.
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Judgment reserved on: 11th March, 2015.
Decided on: 2nd April, 2015.
Smt. Asha Devi .. Appellant.
Versus
Smt. Tarsem Devi and others .. Respondents.
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
Whether approved for reporting?1 Yes.
For the appellant : Mr. Sanjeev Kuthiala, Advocate.
For the respondents: Mr. Subhash Sharma, Advocate, for
respondent No.1.
Mr. H.S. Thakur, General Power of
Attorney of respondents No.2 and 3 also
present in person.
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Dharam Chand Chaudhary, J.
Smt. Asha Devi, plaintiff is in second appeal. She is aggrieved by the judgment and decree dated 3rd January, 2004, passed by learned District Judge, Una, in Civil Appeal No.23 of 2000. As a matter of fact, the present is a case of concurrent findings recorded by both Courts below because while learned Senior Sub Judge, Una has dismissed the suit filed 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 17:56:40 :::HCHP -2- by the plaintiff for the grant of decree of declaration that Will dated 19th November, 1992 Ext.PW-7/A executed by her mother .
Smt. Prabhi in her favour, being a genuine document, is legal and valid and the order of mutation No.3973 whereby the land in dispute alongwith her, is to be inherited by Smt. Tarsem Devi, the first defendant, is null and void and not binding on her, learned lower appellate Court while concurring with the dismissed the appeal.
r to judgment and decree so passed by learned trial Court has
2. The subject matter of dispute in the present lis is the property as detailed in the head-note of the plaint, situate in Mauza Kuthar Beet, Tehsil Haroli, District Una.
3. One Smt. Prabhi was owner in possession of the suit property. She died on 15th December, 1993 leaving behind the plaintiff and her daughter first defendant, grand-daughter. The plaintiff and first defendant both are married in village Ambota, Tehsil Amb, District Una. The plaintiff, however, claims that she used to reside at Kuthar Beet and rendering services to her mother Smt. Prabhi. On her death also, it is she who performed her last rites. Smt. Prabhi executed a Will on 19th November, 1992 and thereby bequeathed her estate and also the landed ::: Downloaded on - 15/04/2017 17:56:40 :::HCHP -3- property to her. On the death of Smt. Prabhi, the plaintiff had produced the Will before the revenue staff for sanction and .
attestation of mutation of the property left behind by her deceased mother Smt. Prabhi. Mutation No.3973 though was sanctioned and attested on 26th November, 1994, however, alongwith her in the name of defendant No.1 also.
4. It is canvassed that defendant No.1 never rendered any service to Smt. Prabhi during her life time. She contested the mutation proceedings merely to grab the suit property with an object to sell the same. She succeeded in her illegal designs, as after about four days of the attestation of the mutation she sold the land in her share to defendants No.2 and 3 on 30th November, 1994 in a sum of `75,000/-, which according to plaintiff is fictitious sale consideration because as per the sale deed only a sum of `27,000/- was passed on to first defendant and the remaining amount not shown. Hence the suit for the decree of declaration to the effect that Will Ext.PW-7/A being a genuine document, is legal and valid and mutation No.3973 dated 26th November, 1994 in favour of defendant No.1 is illegal, null and void and consequential sale of a part of the suit property by defendant No.1 to defendants No.2 and 3 vide sale ::: Downloaded on - 15/04/2017 17:56:40 :::HCHP -4- deed dated 30th November, 1994 is also illegal, null and void and not binding on the plaintiff. Decree for permanent .
prohibitory injunction restraining the defendants from causing any sort of interference in the possession of the plaintiff over the suit land has also been sought to be passed.
5. Defendants in the written statement filed jointly have contested the suit. According to them, Prabhi was not in sound disposing mind preceding two years of her death. She never executed any Will nor the plaintiff rendered services to her. The Will is stated to be a forged document and the result of fraud having been prepared after the death of Smt. Prabhi with sole object to grab her property. Otherwise also, the property being ancestral, the deceased was not competent to bequeath the same by way of executing a Will. The sale of land by defendant No.1 in favour of defendants No.2 and 3 for consideration is legal and valid and defendants No.2 and 3 are bonafide purchasers thereof. The land has been sold by defendant No.1 with the stipulation that in the event of her title in the suit property is defeated she will refund `75,000/- to defendants No.2 and 3. In counter-claim they filed, decree for a sum of `75,000/- has been sought to be passed against the plaintiff on ::: Downloaded on - 15/04/2017 17:56:40 :::HCHP -5- account of she allegedly filed a false and frivolous suit against them.
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6. In view of the pleadings of the parties, learned trial Court has framed the following issues:
1. Whether Smt. Prabhi while in sound and disposing state of mind executed a valid Will dated 19.11.1994 in favour of the plaintiff? OPP.
2. If issue No.1 is proved in affirmative, whether the plaintiff is the owner in possession of the suit property? OPP.
3. Whether suit property was ancestral in the hands of Smt. Prabhi as alleged? OPD.
4. If issue No.3 is proved in affirmative, whether Smt. Prabhi was not competent to execute the Will of the suit property as alleged? OPD.
5. Whether defendants No.2 and 3 are bonafide purchasers by valuation consideration of the suit property, if so, its effect? OPD.2 and 3?
6. Whether defendants No.2 and 3 have been coming in possession of the suit land as co-owners alongwith Asha Devi as alleged, if so, its effect? OPD.
7. Whether the plaint has not been properly valued for the purposes of jurisdiction and court fee, if so, what is correct valuation of the suit property? OPD.
8. Whether the defendants are entitled to relief claimed by way of counter claim? OPD.
9. Relief.::: Downloaded on - 15/04/2017 17:56:40 :::HCHP -6-
7. The parties when put to trial on the above issues, produced evidence comprising oral as well as documentary.
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Learned trial Court on hearing learned Counsel on both sides and on appreciation of the evidence available on record while deciding issues No.1 to 6 and 8 together, has concluded that the testatrix was not in sound disposing mind and as such could have not executed a legal and valid Will. The suit land, however, was not held to be ancestral. The plaintiff and defendant No.1 have been held to be co-owners of the property in dispute and as such the sale of a part thereof by defendant No.1 in favour of defendants No.2 and 3 was also held as legal and valid. The claim of the defendants for the recovery of `75,000/- against the plaintiff, however, has been rejected while deciding issue No.7 against them. The suit as such was dismissed.
8. Judgment and decree passed by learned trial Court though was assailed by the plaintiff in the lower appellate Court, however, unsuccessfully. This has led in filing the present appeal, however, mainly on the ground that the evidence has not been appreciated by both Courts below in its right perspective.
::: Downloaded on - 15/04/2017 17:56:40 :::HCHP -7-9. The appeal has been admitted on the following substantial questions of law:
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1. Whether the Courts below erred in law, in holding that the Will in question is not a valid Will as one of the beneficiaries actively participated in the execution of the Will and that one of the legal heir was disinherited?
2. Whether the findings of the Courts below that the testator was not of sound disposing mind at the time of making of the Will is dehors the pleadings and evidence on record?
10. According to Mr. Kuthiala, learned Counsel representing the appellant/plaintiff, the evidence as has come on record by way of the testimony of the plaintiff's witnesses and also the Will Ext.PW-7/A has not been appreciated by both Courts below in its right perspective. The execution of the Will in accordance with law stands duly proved from the statements of the scribe and the attesting witnesses. The reasons excluding defendant No.1 from inheriting the suit property clearly find mention in the Will. Otherwise also, the Will is executed to make change in the natural line of succession. The testatrix, as per evidence cogent and reliable on record, was in sound disposing mind at the time of execution of the Will. The registration of the will is not legally required. Mr. Kuthiala, therefore, has urged that ::: Downloaded on - 15/04/2017 17:56:40 :::HCHP -8- both Courts below have gravely erred in discarding overwhelming cogent and reliable evidence produced by the .
plaintiff to prove her case as set out in the plaint. The findings recorded by both Courts have thus vitiated and the judgment and decree under challenge being perverse is also not legally and factually unsustainable.
11. Mr. Subhash Sharma, Advocate, learned Counsel representing respondent/defendant No.1 while attention of this Court to contradictions in the statements of the r drawing plaintiff's witnesses and that all the marginal witnesses examined had the criminal background, the execution of the Will, a most solemn document, is not at all proved. The credibility of the testatrix and the witnesses having criminal history in their credit is highly questionable. The attempt on the part of the plaintiff herself to purchase the property in the share of defendant No.1 in a sum of `50,000/- itself demonstrates that no Will was executed in her favour. It has also been argued that as per evidence available on record testatrix Prabhi, a patient of paralysis, was not in a sound disposing mind to execute a legal and valid Will. According to Mr. Sharma, the Will rather has been forged and fabricated after the death of Prabhi.
::: Downloaded on - 15/04/2017 17:56:40 :::HCHP -9-12. Ext.PW-7/A is a Will alleged to have been executed by deceased Prabhi in favour of the plaintiff on 19th November, .
1992. PW-7 Shri Raghupat is the scribe, whereas PW-8 Tilak Raj and PW-9 Banarasi Dass are the marginal witnesses thereto.
Another marginal witness to the Will Shri Baldev Raj is DW-2, who has been examined by the defendants.
13. The legal questions pertain to the mental condition of the testatrix at the relevant time and the validity of the Will on account of propounder, if proved to have played active part in getting the Will executed as well as disinheritance of one of the legal heirs, defendant No.1.
14. The adjudication of the legal questions takes us to the prerequisites of a legal and valid Will. A reference in this regard can be made to Section 63 of the Indian Succession Act, which reads as follows:
"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:--::: Downloaded on - 15/04/2017 17:56:40 :::HCHP
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(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.
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(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 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. Section 68 of the Evidence Act also provides for the requirement of law in the matter of execution of legal and valid Will, which reads as follows:
68. Proof of execution of document required by law to be attested.::: Downloaded on - 15/04/2017 17:56:40 :::HCHP
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If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called .
for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.
Provided that it shall be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
16. Additionally Section 30 of the Hindu Succession Act provides that any Hindu may dispose of by Will or other testamentary disposition any property, which is capable of being disposed of by him in accordance with the provisions of Indian Succession Act or any other law for the time being in force applicable to Hindus.
17. Before coming to the question of execution of the Will Ext.PW-7/A in accordance with law with the help of evidence oral as well as documentary, it is desirable to take ::: Downloaded on - 15/04/2017 17:56:40 :::HCHP
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note of the so called suspicious circumstances weighed with both Courts below while arriving at a conclusion that the same is .
not a legal and valid document nor testamentary disposition of the testatrix Smt. Prabhi. Such circumstances as culled out from the reappraisal of the entire record read as follows:
(i) Testatrix being ill for about one year before her death was not in sound disposing mind so as to believe that she was in a position to have executed the Will in question.
(ii) The scribe and marginal witnesses undependable and unreliable in view of criminal history in their credit.
(iii) One of the marginal witnesses (DW-2) not supported the execution of the Will in the manner as claimed by the plaintiff.
(iv) Gap of more than one year between the execution of the Will and the death of testatrix, the non-registration of the Will renders the execution thereof doubtful.
(v) The evidence qua execution of the Will contradictory in nature not proves the execution thereof.
(vi) Exclusion of defendant No.1, one of the legal heirs to inherit her estate without any reason.
(vii) The propounder/beneficiary allegedly taken active part in the execution of the Will.::: Downloaded on - 15/04/2017 17:56:40 :::HCHP
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18. Whether the execution of the Will Ext.PW-7/A surrounded by the above suspicious circumstances or not, is a .
question to be gone into on reappraisal of the evidence, however, first it is deemed appropriate to examine as to whether execution of the Will in terms of Section 63 of Indian Succession Act and Section 68 of Indian Evidence Act stands proved or not.
19. The scribe PW-7 Raghupat in unequivocal words has stated that Will Ext.PW-7/A was reduced r so many into writing at the instance of testatrix Smt. Prabhi. He recorded whatever the testatrix asked him to write therein. After reducing the same into writing, the contents thereof were read over and explained to her. She admitted the same as correct and it is thereafter she had put her signatures thereon. After that he and the marginal witnesses including Numberdar present there had also put their signatures on this document. The testimony of PW-
8 Tilak Raj is also to the similar effect. As per his version, he had put his signatures on the Will in the capacity of a marginal witness. Similar is the testimony of PW-9 Banarasi Dass, another marginal witness to the Will in question. According to him, the testatrix after understanding and admitting the contents of the ::: Downloaded on - 15/04/2017 17:56:40 :::HCHP
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Will to be true and correct signed the same in presence of the witnesses. The witnesses also signed the Will in her presence.
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20. Be it stated that PWs-7, 8 and 9 have been subjected to lengthy cross-examination mainly qua the ailment and mental condition of the testatrix, credibility of the evidence as has come on record by way of their testimony and also qua criminal history in their credit. They all have admitted that the testatrix was ill at that time, however, as per their version the Will was reduced into writing only at her instance. They also admit criminal cases pending against them at that time. PW-7 also states that the propounder of the Will (plaintiff) has also signed the same. Thought the Will has not been signed by her. The death of testatrix after one year of execution of the Will also stands proved from their testimony. PW-8 admits that he was attorney of testatrix and contesting the case on her behalf. It is he who brought the judicial paper for reducing the Will into writing. The Will bears the thumb mark of the testatrix, whereas PW-9 while in the witness box tells us that she had signed the same.
21. The mere ailment of the testatrix in the absence of any evidence that she was mentally sick, the criminal type of ::: Downloaded on - 15/04/2017 17:56:40 :::HCHP
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history of the witnesses, the mis-statement that the plaintiff had also signed the Will, testatrix had put her signatures thereon and .
PW-8 was the attorney of the testatrix and brought the paper to reduce the Will in question into writing, not shattered their testimony to the effect that the Will was reduced into writing at the instance of the testatrix and she after hearing, understanding and admitting the contents thereof to be true and correct had put her thumb mark thereon in the presence of the witnesses and it is thereafter the witnesses had put their signatures thereon. The execution of the Will as per the legal provisions discussed hereinabove, therefore, stands duly proved.
22. In the absence of evidence to show that at the time of execution of the Will the testatrix was suffering from any mental ailment or was incapable of making disposition, the execution of the Will should not be doubted. It is held so by the Punjab and Haryana High Court in Gurpal Singh v. Darshan Singh, 1998 (1) S.L.J. 174. True it is that DW-2, one of the marginal witnesses to the Will, did not support the plaintiff's case, however, he admits his signatures thereon. Not only this, but as per his version at the time when he had signed the Will the contents thereof were already reduced into writing. He had ::: Downloaded on - 15/04/2017 17:56:40 :::HCHP
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signed the same in the house of Suram Singh Numberdar. Suram Singh has not been examined by either party. However, Suram .
Singh at the time of attestation of mutation No.3973 Ext.P-5, had said before the Assistant Collector that the Will was reduced into writing by deceased Prabhi in their presence and signed by him and other witnesses. This belies the evidence as has come on record by way of statement of DW-2 Baldev Raj. Otherwise also, there is no reason to rely upon the testimony of this witness and to discard that of the scribe PW-7 and two marginal witnesses PW-8 and PW-9 discussed supra.
23. The criminal history into the credit of the witnesses, namely, PW-7 Raghupat, PW-8 Tilak Raj and PW-9 Banarasi Dass and for that matter Shri Suram Singh, Numberdar also cannot be taken as a disqualification depriving them from attesting a document like Will Ext.PW-7/A as a witness. They, therefore, were competent to witness the execution of the Will in question. If the execution thereof is otherwise proved from the evidence as has come on record by way of their testimony, the same cannot be discarded merely that they were booked by the police in some criminal case(s).
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24. The remaining evidence as has come on record by way of the testimony of PWs-1 to 5 and 10, is also relevant .
because the perusal thereof reveals that the plaintiff though was married in village Ambota but residing at village Kuthar Beet at the place of her parents.
25. It is desirable to take note of as to what they deposed while in the witness box. PW-1 Mohan Singh is the Drawing Teacher. He was posted as such in Government Middle School, Kuthar Beet. He tells us that Rajesh Singh son of the plaintiff was admitted in 6th class in that school on 21st April, 1988 and after appearance in the middle standard examination, school leaving certificate was issued in his favour on 3rd September, 1991. Another son of the plaintiff Pardeep Kumar was admitted in 8th class in the same school on 25th April, 1988.
He also appeared in the middle standard examination from that school and school leaving certificate issued in his favour on 12th June, 1989. PW-2 Baja Ram, Sub Post Master, Pubuwal, tells us that there was account of Smt. Prabhi in the post office and her nominee was the plaintiff, Smt. Asha Devi. Shri Naresh Sarswat, Election Kanungo, election office, Una is PW-3 and according to him, as per voter list, name of the testatrix find mention at Sr. ::: Downloaded on - 15/04/2017 17:56:40 :::HCHP
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No.346, whereas that of plaintiff Smt. Asha Devi at Sr. No.347. In the voter-list their house number was recorded as 219. PW-4 .
Jagdish Ram was working as a Clerk in HRTC, Una Region and he has proved college concession pass Ext.PW-4/A. PW-5 Surjit Singh has prepared the map Ext.PW-5/A of the house of Prabhi in village Kuthar Beet. PW-10 is Madan Lal, Gram Panchayat Development Officer, Kuthar Beet. He has produced the Pariwar register and stated that the name of testatrix Prabhi and Asha Devi, the plaintiff find mentioned at Sr. No.104 of page 83 thereof. The name of testatrix after her death was scored out from this register. Although, all of them have been cross-
examined at length, however, in sundry, as nothing incriminating appeared to show that the sons of the plaintiff were not the students of Government Middle School, Kuthar Beet or that the plaintiff was not entered as voter in the voter list of village Kuthar Beet. Nothing is also there to show that her name was not in the Pariwar register. It is rather satisfactorily proved from their testimony that the plaintiff used to reside in village Kuthar Beet even after her marriage also and her children studying there in the school. Obviously, she was residing there to look after her mother Smt. Prabhi, who was admittedly old and ailing before ::: Downloaded on - 15/04/2017 17:56:40 :::HCHP
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her death. The plaintiff's case that it is she who had been looking after her mother Smt. Prabhi during her life time, stands .
satisfactorily proved on record. It can, therefore, be reasonably believed that the testatrix bequeathed the suit property in favour of the plaintiff in lieu of the services she rendered.
26. Admittedly, there is no legal requirement of getting the Will registered. Of course, registration thereof is always preferred to avoid any criticism qua execution thereof.
However, it would not be appropriate to say that on the registration of a Will every suspicion qua its lawful execution stands removed. Even a Will duly registered is also open to criticism on similar grounds as in the case in hand. Anyhow, non-
registration of the Will Ext.PW-7/A is not fatal to the plaintiff's case for the reason that manner in which the same is reduced into writing not cast any doubt qua its execution. Above all, the execution thereof by the testatrix in favour of the plaintiff has not only been witnessed by PW-8 Tilak Raj, PW-9 Banarasi Dass and DW-2 Baldev Raj, but also by S/Sh. Bakshi Singh, Rattan Chand, Laxman Singh and Avtar Singh, besides Shri Suram Singh, Numberdar as their signatures also exist thereon. The recitals in the Will further reveal that defendant No.1 has been is inherited ::: Downloaded on - 15/04/2017 17:56:40 :::HCHP
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by the testatrix for the valid reasons such as after bringing up defendant No.1 she married her about 30 years ago and given .
sufficient dowry also.
27. The propounder, i.e., the plaintiff has discharged the onus by producing the scribe and also the marginal witnesses who have stated that the Will was reduced into writing at the instance of the testatrix. The same was read over and explained to her. She after understanding and admitting the contents thereof to be true and correct had put her thumb mark in the presence of the witnesses (statement of PW-9) and the witnesses had also signed this document thereafter in her presence. The burden to prove, therefore, stands shifted upon the defendants, who failed to discharge the same, as the statements of defendant No.1 (DW-1) and that of DW-2 Baldev Raj are neither cogent nor reliable to arrive at a conclusion that the Will is not a genuine document and rather forged and fictitious. I draw support in this regard from the judgment of the Apex Court in Mahesh Kumar (Dead) by LRs. v. Vinod Kumar and others (2012) 4 SCC 387.
28. I am not in agreement with both Courts below that the testatrix being bed ridden was not in sound disposing mind ::: Downloaded on - 15/04/2017 17:56:40 :::HCHP
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for the reason that ailment alone is not sufficient to infer that the person ill is not in sound disposing mind. Admittedly, she was ill, .
however, as per evidence available on record in a position to speak, of course not much. She was not on death bed at that time and rather died on 15th December, 1993, i.e., after a period over one year from the date of execution of the Will. The testatrix as such was in sound disposing mind at the relevant time.
29. to In a similar set of facts and circumstances this Court, in Shakuntala Devi v. Savitri Devi and others, AIR 1997, HP 43, has held the Will legal and valid irrespective of the attesting witness failed to depose about its contents and minor contradictions in the depositions made by the witnesses and also some natural heirs excluded. As a matter of fact, a document like Will is executed with the intention of the testator to deprive some of the legal heirs from succession. Therefore, if defendant No.1 has been excluded from inheritance of her estate by the testatrix that too for valid reason discussed supra, the Will cannot be said to be a forged or fictitious document. The same rather a duly executed document by the testatrix in favour of the plaintiff.
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30. The testatrix breathed her last in village Ambota, the place where the plaintiff and defendant No.1 have been .
married. No evidence has come on record that she was living in the house of defendant No.1 there. The photographs Exts.A-1 to A-5 produced on record by the plaintiff rather leads to the only conclusion that the testatrix used to live in that village and it is she who performed last rites on the death of the testatrix.
31. The propounder/beneficiary is the plaintiff. There is no evidence to show that she actively participated in the execution of the Will. It is rather PW-8, who has been found to have arranged for judicial paper on which the Will has been reduced into writing and it is he who called for the witnesses. He at one point of time was also attorney of testatrix Prabhi. The same not amounts to take part by the beneficiary, the plaintiff in the execution of the Will.
32. Both Courts below have, therefore, not appreciated the evidence qua execution of the Will produced by the plaintiff. This has resulted in recording wrong findings. Both Courts below have misread, mis-appreciated and misconstrued not only the facts of this case, but also the evidence available on record as well as settled legal principles. The findings ::: Downloaded on - 15/04/2017 17:56:40 :::HCHP
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recorded by both Courts below have, therefore, vitiated resulting in passing an erroneous judgment and decree which .
being perverse also is not legally sustainable. Consequently, the appeal is allowed and the judgment and decree under challenge is hereby ordered to be quashed and set aside. The suit is decreed and the Will Ext.PW-7/A being a genuine document is held legal and valid and mutation No.3973 sanctioned and attested by the Assistant Collector, vide order dated 26th November, 1994 is illegal, null and void and not binding on the plaintiff. Additionally, the defendants are also restrained by a decree of permanent prohibitory injunction from causing any interference over the suit property in any manner whatsoever. Both substantial questions of law are answered accordingly. The appeal stands disposed of. No order as to costs. Decree sheet be drawn accordingly.
CMP No.192 of 2005.
In view of disposal of the main appeal itself, this application has not been pressed and the same is accordingly dismissed.
April 02, 2015. (Dharam Chand Chaudhary), (rc) Judge.
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