Himachal Pradesh High Court
Reserved On: 17.6.2024 vs Joginder Singh & Ors on 23 July, 2024
Author: Virender Singh
Bench: Virender Singh
1 2024:HHC:5648 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 404 of 2008 Reserved on: 17.6.2024 Decided on: 23.7.2024 .
Shanti Devi ... Appellant Versus Joginder Singh & ors.
...Respondents __________________________________________________ Coram Hon'ble Mr. Justice Virender Singh, Judge Whether approved for reporting? yes ___________________________________________________ For the Appellant: Mr. R.K. Gautam, Senior Advocate with Ms. Radhika Gautam, Advocate.
For the Respondents :Mr. G.D. Verma, Senior Advocate with Mr. Sumit Sharma, Advocate, for respondents No. 1 to 3.
None for respondents No. 4to 9.
Virender Singh, Judge The appellant has preferred the present Regular Second Appeal, under Section 100 of the Code of Civil Procedure, against the judgment and decree, dated 8.5.2008, passed by the Court of ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 2 2024:HHC:5648 learned District Judge, Hamirpur, H.P. (hereinafter referred to as 'the First Appellate Court'), in Civil Appeal No. 18 of 2005, titled as, 'Joginder Singh .
versus Smt. Shanti Devi & others.'
2. Vide judgment and decree, dated 8.5.2008, the learned First Appellate Court has allowed the appeal, preferred by respondent No. 1, against the judgment and decree, dated 3.1.2005, passed by the Court of learned Civil Judge (Jr. Division), Barsar, District Hamirpur, H.P. (hereinafter referred to as 'the learned trial Court'), in Civil Suit No. 43 of 2000 titled as, 'Shanti Devi & others versus Joginder Singh & others', whereby, the learned trial Court has decreed the above titled suit, by granting the following relief to the plaintiff:
"As a sequel of my aforesaid discussion the suit of the plaintiff is decreed to the extent that 'WILL' dated 17.10.1997 is a last 'WILL' of deceased Pohlo Ram and Succession is to be devolved in accordance with the law of 'WILL' dated 17.10.1997 and mortgage deed in favour of defendants No. 4 to 6 of land comprised in khata No. 18, khatauni No. 18, khasra ::: Downloaded on - 23/07/2024 20:32:07 :::CIS
3 2024:HHC:5648 No. 68, 69, 104, 107, 108, 118, 122, 147, 148, 153 kita measuring 35K-5M situated in village Narghol, Tappa Dhatwal, Tehsil Barsar District Hamirpur, HP is null and void and not binding upon the plaintiffs.
.
Keeping in view the facts and circumstances of the case, the parties are left to bear their own costs. Decree-sheet be drawn up accordingly. File after completion be consigned to the Record Room."
3. For the sake of convenience, the parties, to the present lis, are hereinafter referred to, in the same manner, in which, they were referred to, by the learned trial Court.
4. Brief facts, leading to filing the present appeal, before this Court, may be summed up, as under:
The plaintiffs have filed the suit for declaration and possession and permanent prohibitory injunction, restraining the defendants from raising any construction, changing the nature of the land and cutting the trees from the land, bearing khata No. 4, khatauni No. 4, khasra No. 68/1, 6, 12, 15, 24, 27, 28, 71/32, 37, 75/41, ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 4 2024:HHC:5648 78/43, 45, 49, 52, 53, 63, 64 kita 17, measuring 55 K-06 Marlas Jamai Rs. 6.35 alongwith Abadi Deh, upon which residential house is stated to be .
constructed and situated in village Narghol, Tappa Dhatwal, Tehsil Barsar, District Hamirpur, H.P. and khata No. 18, khatauni No. 18, khasra No. 68, 69, 104, 107, 108, 118, 122, 147, 148, 157, kita 10 measuring 35 K-05 M situated in village Narghol, Tappa Dhatwal, Tehsil Barsar, District Hamirpur, H.P. (hereinafter referred to as 'the suit land').
4.1 According to the plaintiff, Pohlo Ram, S/o Sukh Ram had expired on 6.6.2000. He was owner of the suit land, which is jointly owned and possessed by the plaintiffs and defendants No. 1 to
3. It is the further case of the plaintiffs that plaintiffs and defendant No. 1 are exclusive legal heirs, falling under Class-i of Section 8 of Hindu Succession Act 1956. As such, they are entitled for the estate of Pohlo Ram.
::: Downloaded on - 23/07/2024 20:32:07 :::CIS5 2024:HHC:5648 4.2 As per the case of the plaintiffs, Pohlo Ram had never executed the alleged Will dated 4.2.2000, in favour of defendant No. 1, in sound and disposing .
state of mind, nor has mortgaged the land situated in village Narghol, Tappa Dhatwal, Tehsil Barsar, District Hamirpur, H.P., in favour of defendants No. 4, 5 and 6. It has also been asserted that Will dated 4.2.2000 is a result of misrepresentation and fraud, played upon Pohlo Ram, and the same is r forged.
Pohlo Ram is stated to be critically ill, prior to his death. According to the plaintiffs, Pohlo Ram had executed only two registered Wills, dated 29.3.1993 and 17.10.1997, in his sound and disposing state of mind. After 17.10.1997, he had not executed any Will.
4.3 On the basis of above facts, the plaintiffs have sought declaration that plaintiffs be declared as owners in possession, alongwith defendant No.1, in equal shares, in the suit land. In addition to this, ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 6 2024:HHC:5648 plaintiffs have sought declaration that mortgage, in favour of defendants No. 4 to 6, of the land, situated in village Narghol, Tappa Dhatwal, Tehsil Barsar, .
District Hamirpur, be declared as null and void, and not binding upon the plaintiffs.
5. When put to notice, the suit has been contested by the defendants, by filing written statement. In the written statement, the defendants have taken preliminary objections, qua the fact that suit is not maintainable, plaintiffs have no cause of action; plaintiffs are estopped from filing the suit, on account of their acts and conducts; suit is bad for non-joinder and mis-joinder of parties; suit is not properly valued for the purpose of Court fees and jurisdiction and defendants are entitled to special Costs, under Section 35-A of CPC.
5.1 On merits, it has been admitted that Pohlo Ram was owner of the suit land. However, according to the defendants, after death of Pohlo Ram, his ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 7 2024:HHC:5648 estate has been mutated in the name of defendant No. 1, vide Mutation Nos. 21 and 238, dated 14.3.2000 and on the basis of Will, dated 4.2.2000, .
he has become exclusive owner of the suit land, on the basis of Will.
5.2 It is the further case of the defendants that defendant No. 1 is son of Pohlo Ram, plaintiff is his Pohlo Ram.
r to widow and plaintiffs No. 2 to 4 are the daughters of 5.3 The Will, executed on 4.2.2000, is stated to have been executed by Pohlo Ram in a sound and disposing state of mind. The said Will is stated to be executed in favour of defendnat No. 1, in lieu of services rendered by him. Defendant No. 1 has performed last rites of his father. Defendant No. 1 has also explained the facts as to how he has served his father, during his lifetime.
5.4 Shanti Devi-plaintiff was stated to be serving in Punjab and residing separately, during lifetime of ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 8 2024:HHC:5648 Pohlo Ram. The land was stated to be mortgaged by Pohlo Ram, during his lifetime.
5.5 Supporting the Will, it has been pleaded that .
the Wills, dated 29.3.1993 and 17.10.1997, are forged and fictitious documents, as Pohlo Ram was not having good relations with the plaintiffs.
According to the defendants, by executing the Will, dated 4.2.2000, Pohlo Ram had revoked the earlier Wills dated 29.3.1993 and 17.10.1997.
6. On the basis of above facts, a prayer has been made to dismiss the suit.
7. The plaintiffs have filed replication, denying the preliminary objections, as well as, contents of the written statement, by virtue of which, the suit has been contested, by re-asserting that of the plaint.
8. From the pleadings of the parties, the learned trial Court has framed the following issues, vide order dated 2.9.2002:
::: Downloaded on - 23/07/2024 20:32:07 :::CIS9 2024:HHC:5648
1. Whether the plaintiffs are owners in possession of the suit land as alleged? OPP .
2. Whether the suit land is ancestral as alleged. If so, its effects? OPP
3. Whether the Will dated 4.2.2000 executed by late Shri Pohlo Ram is a result of fraud etc. as alleged. If so, its effect?OPP
4. Whether the plaintiffs are entitled to a decree for joint possession as claimed?OPP
5. Whether the mortgage in favour of defendants No. 4 to 6 is illegal as alleged. If so, its effect?OPP
6. Whether the plaintiffs are entitled to the injunction prayed for? OPP
7. Whether late Shri Pohlo Ram executed valid Will on 29.3.1993 and 17.10.1997 as alleged. If so, its effect? OPP
8. Whether the suit is not maintainable in the present form? OPD
9. Whether the plaintiffs are estopped from filing the suit by their act and conduct? OPD
10) Whether the plaintiffs have a cause of action? OPD
10. Whether the suit is bad for non-joinder and mis-joinder of the necessary parties? OPD
11. Whether the suit has not been properly valued for the purposes of Court fee and jurisdiction? OPD
12. Whether this Court has got no jurisdiction to hear and decide the present suit? OPD ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 10 2024:HHC:5648
13. Whether the defendants are entitled to special costs u/s 34-A of CPC as claimed. If so, their quantum? OPD
14. Whether late Shri Pohlo Ram executed a valid .
Will dated 4.2.2000 as alleged. If so, its effect? OPD
15. Relief.
9. Thereafter, parties to the lis were directed to adduce evidence. After closure of evidence, the learned trial Court heard the counsel appearing for both the parties and r decreed the suit of the plaintiffs, vide judgment and decree, 3.1.2005, by granting the relief, as reproduced above.
10. Feeling aggrieved from the said judgment and decree, defendant No. 1 Joginder Singh has filed the Civil Appeal before the learned First Appellate Court.
The learned First Appellate Court has allowed the appeal, by setting aside the judgment and decree, passed by the learned trial Court.
11. Aggrieved from the said judgment and decree, by plaintiff No. 1 has filed the present Regular ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 11 2024:HHC:5648 Second Appeal, before this Court, by impleading other plaintiffs, as respondents No. 7 to 9.
12. By way of present appeal, findings of the .
learned trial Court have been assailed on the ground that the learned First Appellate Court has made out a new case for the respondents, which was neither pleaded, nor, proved by them, before the learned trial Court. Findings of the learned First Appellate Court, by virtue of which, Will dated 4.2.2000 are stated to be shrouded with suspicious circumstances, and thus, unsustainable in the eyes of law.
13. On the basis of above facts, a prayer has been made to allow the appeal.
14. Per contra, Shri G.D. Verma, assisted by Mr. Sumit Sharma, Advocate, appearing for the defendants has prayed for dismissal of appeal.
::: Downloaded on - 23/07/2024 20:32:07 :::CIS12 2024:HHC:5648
15. The present appeal has been admitted by this Court on 21.8.2008, on the following substantial questions of law:
.
i) Whether the lower appellate Court has misread and misinterpreted the documentary evidence exhibit D-1 on record and thereby arrived at wrong findings?
ii) Whether appellant can be disinherited by testamentary succession from the ancestral property in dispute?
16. In r this case, the plaintiffs are seeking inheritance of their predecessor-in-interest Pohlo Ram, on the basis of natural succession. However, in the plaint, plaintiffs have pleaded the fact that Pohlo Ram had executed valid Wills, dated 29.3.1993 and 17.10.1997 in their favour. The learned trial Court has decreed the suit to the extent that Will dated 17.10.1997 is the last Will of Pohlo Ram and suit land is ordered to be devolved, as per Will, dated 17.10.1997.
::: Downloaded on - 23/07/2024 20:32:07 :::CIS13 2024:HHC:5648
17. In addition to this, the learned trial Court has also declared the mortgage deed, in favour of defendants No. 4 to 6, regarding land, measuring 35 .
K-5M, situated in village Narghol, Tappa Dhatwal, Tehsil Barsar, District Hamirpur, H.P., as null and void. Defendant No. 1 has claimed the suit land on the basis of Will, dated 4.2.2000, whereas, plaintiffs have sought the decree on the basis of Wills, dated 29.3.1993 and 17.10.1997. Meaning thereby, three Wills have been set up by the parties to the lis, in this case.
18. In order to decide the substantial questions of law, as framed by this Court, while admitting the appeal, it would be just and appropriate for this Court to discuss the oral, as well as, documentary evidence, adduced by the parties, before the learned trial Court.
19. After framing the issues, plaintiff Shanti Devi stepped into the witness box as PW-1, and filed her ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 14 2024:HHC:5648 affidavit in examination-in-chief, which is based upon the assertions, made in the plaint. According to her, she was married to Pohlo Ram about 50 .
years ago. She has disclosed the name of father of Pohlo Ram as Sukhdev. However, she could not disclose the name of father of Sukhdev. She has stated that Sukhdev expired about 4-5 years, prior to her marriage with Pohlo Ram. She is blessed with four children. She has further stated that Joginder had married twice. However, she could not disclose about the date and month of his marriages. First wife of Joginder is stated to have expired. This witness had participated in the marriage of Joginder.
In-laws' house of Joginder is at Bilaspur. However, she could not disclose with regard to the persons, who had performed the marriage rituals of Joginder.
Pohlo Ram and Joginder were stated to be living together. She has voluntarily stated that though, all of them were residing together, but she had joined ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 15 2024:HHC:5648 the job 28 years ago. She had joined the service at Talwara in Punjab. She has superannuated from Talwara, in the month of March, 2000. She has .
further stated that Shakuntla, plaintiff No. 2, was married at Hamirpur. Her marriage was solemnized by her father Pohlo Ram. In-laws of plaintiff No. 3 are stated to be residing at Hamirpur. According to her at Talwara.
r to this witness, plaintiffs No. 2 to 4 were residing with
20. This witness was not having her own house at Talwara. The house, at village Patta Nathu, is stated to be possessed by this witness alongwith her grand sons. She has denied that the same is in possession of Joginder. She has denied that after death of Pohlo Ram, suit land is being cultivated by Joginder. According to her, same is in possession of the plaintiffs, Sandeep and Dalip. After retirement, this witness is residing at Talwara. She has voluntarily stated that Joginder does not permit her ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 16 2024:HHC:5648 to come to the native village. Pohlo Ram was stated to be illiterate. She has denied that Pohlo Ram had mortgaged the suit land. She has also denied that all .
the usufruct is being enjoyed by defendant No. 1, Joginder. She has denied that she was not having the cordial relations with Pohlo Ram. She has also denied that Pohlo Ram did not consider her to be his wife. She has also denied that Pohlo Ram has dis-
inherited her from his property.
21. According to this witness, when, Pohlo Ram expired, this witness was in village Patta Nathu.
Then, voluntarily stated that he was not having control over his senses for one month prior to his death. She has stated that when, the mutation was attested in favour of Joginder, she has raised the objections. She has produced Wills dated 17.10.1997 and 29.3.1993 before Patwari, at the time of mutation. The alleged Wills were handed to her by Pohlo Ram. She has feigned her ignorance ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 17 2024:HHC:5648 about the strained relationship of Prem Singh and Joginder Singh.
22. According to her further deposition, she has .
got the treatment of Pohlo Ram at Talwara Hospital.
She has denied that last rites of Pohlo Ram were performed by Joginder, however, volunteered that she had paid a sum of Rs. 10,000/- but, could not disclose in whom presence, she had given this amount. In order to perform the last rites of Pohlo Ram, Joginder had gone to Haridwar and this witness had remained in her in-laws house. Pohlo Ram is stated to have expired at the age of 110 years.
23. PW-2 Prem Singh has also supported the case of the plaintiffs, by denying that no Will was executed by Pohlo Ram, on 4.2.2000, in sound and disposing state of mind. It has also been denied by him that Pohlo Ram had mortgaged the land to defendants No. 4 to 6. Will dated 4.2.2000 is ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 18 2024:HHC:5648 stated to be result of misrepresentation and fraud.
At the same time, this witness has supported the Wills, dated 29.3.1993 and 17.10.1997, by stating .
that, both the above Wills were executed, when, Pohlo Ram was in sound and disposing state of mind.
24. This witness was working at Bihdu. Prior to that, he was in Army. He has superannuated from the Army, in the year 1988. He has admitted that Shanti Devi was doing her job at Talwara from the year 1970. Joginder and Pohlo Ram were residing together at Patta Nathu, whereas, plaintiffs No. 2 to 4 were residing with their mother, Shanti Devi at Talwara, Punjab. Their marriage was also solemnized at Talwara. After 1988, Joginder had constructed Pakka house at his village.
25. According to him, the suit land is also in possession of Joginder, but, voluntarily stated that Shanti Devi also used to visit the same. According to ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 19 2024:HHC:5648 this witness, when, Pohlo Ram expired, Shanti Devi was at Talwara. However, on the next day of death, Shanti Devi came to the village. He has also .
admitted that Pohlo Ram was being looked after by Joginder and his family. But, voluntarily stated that Shanti Devi also used to visit him.
26. This witness has admitted that relations of Shanti Devi and Pohlo Ram were not cordial. He has admitted that he is not having good relations with Joginder, as disputes between them is stated to be pending before the Panchayat. He has denied that on 4.2.2000, Pohlo Ram had executed the Will in favour of Joginder.
27. As per the further deposition of this witness, Pohlo Ram had disclosed to him regarding the Wills, executed on 29.3.1993 and 17.10.1997. However, he has feigned ignorance about the date, when this fact was disclosed to him by Pohlo Ram. This witness could not disclose about the year, when Joginder ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 20 2024:HHC:5648 was married. Pohlo Ram is stated to have expired on 6.2.2000. He has also stated about the feeble mental condition of Pohlo Ram, prior to his death.
.
28. PW-3 Dev Raj is Registration Clerk in the office of Sub-Registrar, Barsar. He has deposed on the basis of record that on 29.3.1993, Pohlo Ram has executed the Will, Ext. P-1. He could not year 1993.
r to disclose as to who was the Registration Clerk in the
29. PW-4 Kuldeep Singh is also Registration Clerk, at Sub Tehsil Dhatwal, at Bijhar, Tehsil Barsar, District Hamirpur, H.P. He has disclosed that on 17.10.1997, Pohlo Ram had executed a Will.
Like PW-3, he has also feigned his ignorance about the fact, as to who was the Registration Clerk, in the year 1997.
30. PW-5, Jagdish Chand is Deed Writer. He has deposed that he has scribed the Will, dated 17.10.1997, Ext. P-2, which was stated to be ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 21 2024:HHC:5648 executed by Pohlo Ram, in favour of Shanti Devi, 1/4th share, and Deep Singh, Sandeep Kumar, S/o Joginder Singh, 3/4th share (in equal shares).
.
According to this witness, he has read over the contents of the Will, dated 17.10.1997, Ext. P-2.
According to this witness, Pohlo Ram had accepted the same to be correct and put his thumb impression on the Will. Other witnesses Beli Ram and Ram Singh had also affixed their thumb impressions on the Will, dated 17.10.1997, in the presence of this witness. Pohlo Ram was not personally known to this witness. Will dated 4.2.2000 was also scribed by this witness. After scribing the Will, the same was read over to Pohlo Ram and Pohlo Ram had accepted the same to be correct and put his thumb impression. Thereafter, this witness had put his signatures on the same.
When, Ext. D-1 was scribed, Pohlo Ram is stated to be having sound state of mind.
::: Downloaded on - 23/07/2024 20:32:07 :::CIS22 2024:HHC:5648
31. PW-6 Beli Ram is attesting witness over the Will, Ext. D-2. According to him, he is the witness to the Will and signed the same in the presence of .
other witnesses. The Will was scribed by Jagdish Chand, the Document Writer, as per the version of Pohlo Ram. Pohlo Ram admitted the contents of the Will, Ext. D-2 to be correct and put his thumb impression.
Thereafter, the Sub-Registrar attested the same and made endorsement Ext.
r has PW4/A on the same. Pohlo Ram was known to this witness. Pohlo Ram was residing in village Patta Nathu alongwith Joginder and his family members.
He has voluntarily stated that he also used to visit Talwara.
32. According to this witness, Pohlo Ram was being looked after by Joginder and Shanti Devi.
Shanti Devi is stated to be residing with her children at Talwara from the year 1970. The old house is stated to be in possession of Shanti Devi, whereas, ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 23 2024:HHC:5648 new house is stated to be in possession of Joginder.
This witness has seen Shanti Devi residing in her house in Patta Nathu, during lifetime of Pohlo. He .
has feigned his ignorance about the fact that Pohlo Ram had executed the Will, dated 4.2.2000, in favour of Joginder. When, Pohlo Ram expired, Shanti Devi was residing at Talwara and stated to have
33. to visited the village next day.
This witness has further stated that Pohlo Ram has mortgaged his land with Jeet Ram and Maan Singh etc.
34. PW-7 Jugal Kishore is son of Deed Writer, Ram Singh. On the basis of record, he has stated that Will dated 29.3.1993 was scribed by his father.
He has produced the record of Will, dated 29.3.1993, which was entered at serial No. 175. This witness has identified the signatures of his father on the Will, dated 29.3.1993.
::: Downloaded on - 23/07/2024 20:32:07 :::CIS24 2024:HHC:5648
35. In the cross-examination, this witness has admitted that Will, Ext. D-2, has also been scribed by his father, which bears signatures of his father.
.
Will, Ext. D-3, is also stated to have been scribed by his father.
36. PW-8 Hakam Singh has deposed that Will dated 29.3.1993, Ext. P-1 was executed by Pohlo Ram in his sound and disposing state of mind, in favour of Shanti Devi, Deep Kumar and Sanjeev Kumar, sons of Pohlo Ram. This witness had attested the Will, in presence of other witnesses. The Will was scribed by Ram Singh, Document Writer, and the same was read over to Pohlo Ram, who has admitted the same to be correct and put his thumb impression, in the presence of this witness. He has stated that Pohlo Ram was residing at village Patta Nathu with Joginder.
37. According to him, Joginder had served Pohlo Ram, during his lifetime. He has feigned his ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 25 2024:HHC:5648 ignorance that Shanti Devi and her daughters were residing at Talwara, from the year 1970. He could not disclose about the date of death of Pohlo Ram.
.
According to him, the Will might have been read over to him. Thereafter, he had signed the same. This witness also feigned his ignorance about the fact that on 4.2.2000, Pohlo Ram had executed the Will in favour of his son.
38. to PW-9 is Jagir Singh. He has deposed that he knew Pohlo Ram, who, according to him, was living with Shanti Devi at Talwara, for some time and some time, he used to visit his village Patta Nathu, alongwith Shanti Devi and her daughters. He has signed the statement Ext. 'X'. He has stated that Shanti Devi had served Pohlo Ram as a Hindu wife during his lifetime. He has further stated that they were having good relations with each other. This witness is resident of District Hoshiarpur, Punjab.
He is running a tea shop in Talwara from the year ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 26 2024:HHC:5648 1975. House of Shanti Devi is stated to be situated at a distance of 60 meters from his shop. Daughters of Shanti Devi used to reside with her. Shanti Devi .
was having three daughters and one son. Shanti Devi is stated to have superannuated from her job.
He again reiterated his stand that Pohlo Ram used to visit Talwara also, but admitted that Pohlo Ram was
39. to residing at his native place.
According to this witness, Pohlo Ram was being looked after by Joginder and when, he used to come to Talwara, he was being looked after by Shanti Devi. He has further stated that last rites of Pohlo Ram were performed by Joginder. He could not disclose as to when Ext. 'X' was written.
40. PW-10 is Raj Rani. She has also stated that Pohlo Ram used to come to Talwara. According to this witness, Shanti Devi had also rendered medical assistance to Pohlo Ram, during his lifetime.
::: Downloaded on - 23/07/2024 20:32:07 :::CIS27 2024:HHC:5648
41. PW-11 is Ichha Rani. She also has deposed on the similar lines.
42. PW-12 is Sada Ram. He is the attesting .
witness over the Will, dated 29.3.1993. The said Will was got scribed by Pohlo Ram. This witness has signed the Will in presence of the witnesses. He has stated that Will Ext. P-1 was scribed by Ram Singh, Deed Writer. Thereafter, he read over the contents of the Will to Pohlo Ram and admitted the same to be correct and put his thumb impression in his sound and disposing state of mind, in the presence of witnesses. Hakam Singh has also signed the Will in the presence of this witness and Sub-Registrar has attested the same. Pohlo Ram was personally known to this witness. He has further stated that Pohlo Ram was residing with his son at Patta Nathu and Joginder used to serve him. He has also stated that last rites of Pohlo Ram were performed by Joginder.
::: Downloaded on - 23/07/2024 20:32:07 :::CIS28 2024:HHC:5648 He has admitted that Shanti Devi was serving at Talwara and residing there only.
43. To rebut the evidence of the plaintiffs, .
defendants have examined DW-1 Kuldeep Singh, Registration Clerk, Sub Tehsil Dhatwal at Bijhari, Tehsil Barsar, Distt. Hamirpur, H.P. On the basis of record, he has proved the fact that Will dated 4.2.2000 was executed by Pohlo Ram. He has proved the Will Ext. D-1, which was executed in favour of Joginder Singh. He has further deposed that the Will was scribed by Jagdish Chand, Deed Writer and witnessed by Bruham Dutt and Udal Singh.
44. In the cross-examination, this witness has deposed that at the relevant time, Bal Kishan Sharma was posted as Sub-Registrar, but on the date, when this witness appeared in the witness box, on 11.9.2003, was working in Divisional Commissioner Office.
::: Downloaded on - 23/07/2024 20:32:07 :::CIS29 2024:HHC:5648
45. Pohlo Ram was not personally known to this witness. Similarly, he does not know the witness of the Will, Ext. D-1. Endorsement Ext. DW1/A over .
Ext.D-1 was in the handwriting of Bal Kishan. The Will, Ext. D-1 was executed in village Patta Nathu.
This witness had gone to village Patta Nathu, alongwith Sub-Registrar and Deed Writer. He did not remember as to whether witnesses were already there or not. An application regarding attestation of the Will was made. However, he had not brought the record with him. He could not tell about the mental condition of Pohlo Ram. According to him, the same can be divulged only by the Sub-Registrar.
46. DW-2 is Tilak Raj, who has deposed that the bill dated 6.2.2000 was signed by him. He has proved the same as Ext. DW2/A. He has deposed that he is running a shop under the name and style of 'Amar Nath and Brothers' in village Bijhari.
::: Downloaded on - 23/07/2024 20:32:07 :::CIS30 2024:HHC:5648
47. In his cross-examination, this witness has deposed that he is not having any record with regard to document, Ext. DW2/A, as they used to destroy .
the cash memos after one year.
48. DW-3 is Anand Swarup, Secretary of Gram Panchayat Bijhari. He has proved the copy of Pariwar Register, Ext. DW3/A. However, in the cross-examination, he could not disclose as to which Secretary has issued Ext. DW3/A.
49. DW-4 is Kishan Dev, Election Kanungo. He has proved the copy of the voter list, for the years 1998 to 2001, as Ext. DW4/A. He has deposed that Ext. DW4/A was not issued by him, but, the same was issued by SDM, Shri K.D. Rana.
50. DW-5 is Dev Raj, Registration Clerk, Office of Sub Registrar, Barsar, District Hamirpur, HP. He has deposed on the basis of record that Will dated 24.11.1993, Ext. PW5/A and Will dated 3.4.1975, Ext. PW5/B were executed by Pohlo Ram, S/o Shri ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 31 2024:HHC:5648 Sukh Lal. Will Ext. PW5/A is stated to have been witnessed by Babu Ram and Udal Singh and Will, Ext. PW5/B is stated to have been witnessed by .
Babu Ram and Tulsi. This witness was posted in the office of Sub-Registrar, in the year 1997.
However, from the years 1974 to 1994, he was not posted in Tehsil Office, Barsar. He could not disclose about the name of the person, who was posted in the office of Sub-Registrar, w.e.f. 3.4.1975 to 24.4.1993.
He has shown his inability to disclose as to who had scribed Ext. D-3. He did not knew Pohlo Ram and Babu Ram personally. He has feigned his ignorance about the fact that the license of Ram Singh was cancelled for writing the wrong document.
51. DW-6 is Maan Singh. He has deposed that Pohlo Ram had executed the oral mortgage deed, in favour of Asha Devi, Sh. Prabha Ram and Sh. Jeet Ram, for a valuable consideration. On the basis of ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 32 2024:HHC:5648 said mortgage deed, this witness alongwith others are in possession of the suit land.
52. In the cross-examination, this witness has .
deposed that the mortgage deed was oral and no writing was made. The same was done on 4.1.2000.
The oral mortgage deed was made in the Patwar Circle. At that time, Pohlo Ram and Jeet Ram were also present there. This witness, Prabha Ram and Asha Devi were also present there. The mortgage deed was done for a sum of Rs. 20,000/-. The land measuring 1 bigha 7 biswas was mortgaged.
53. According to this witness, the amount was paid to Pohlo Ram, but, no receipt was obtained. The mutation was attested in this regard on 18.1.2000.
He has further deposed that the mortgaged land is in possession of Joginder, however, no entry was got recorded with the Patwari regarding the mortgage.
54. DW-7 is Jit Ram. He has also deposed on the similar lines, regarding the oral mortgage in favour ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 33 2024:HHC:5648 of Pohlo Ram. He has deposed that prior to his death, Pohlo Ram was ill. According to him, he has paid a sum of Rs. 5000/- to Pohlo Ram. 5 kanal of .
land was mortgaged with him. The document, in this regard, was prepared, which was signed by Numberdar Babu Ram. He has further deposed that the mortgage was made in the presence of Patwari.
He could not disclose about the date and month when the suit land was mortgaged. He has feigned his ignorance whether any Rapat was entered in the Rapat Rojnamcha or not. Mutation, in this regard, was entered. At that time, this witness and Pohlo Ram were present. He has asserted the possession of Joginder over the suit land. He has again stated that the land, which is the subject matter of the mortgage, is in his possession.
55. DW-8 is Hem Raj. He has proved Bill, dated 12.2.2000 as Ext. DW8/A. ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 34 2024:HHC:5648
56. Defendant No. 1 Joginder Singh appeared in the witness box as DW-9 and filed his affidavit in examination-in-chief, which is based upon the .
assertions made in the written statement.
57. In the cross-examination, he has admitted that Shanti Devi is his mother and other plaintiffs are his sisters. He has feigned his ignorance about the fact that in the earlier Wills, executed by Pohlo Ram, it has been mentioned by the testator that he is not serving Pohlo Ram, as such, he does not want to give anything to him. He has denied that his father Pohlo Ram used to visit Shanti Devi every month. He has denied that 3-4 days prior to death of Pohlo Ram, he had gone to Talwara. He has denied that Pohlo Ram has not executed Will dated 4.2.2000. He has feigned ignorance that the Will dated 3.4.1975, 24.11.1993 and 4.2.2000 are forged one or genuine.
::: Downloaded on - 23/07/2024 20:32:07 :::CIS35 2024:HHC:5648
58. DW-10 is Braham Dutt. He has deposed that Pohlo Ram was known to him. He has deposed that on 4.2.2000, Pohlo Ram has executed the Will in his .
sound and disposing state of mind, in favour of his son Joginder. The Will was written as per wish of Pohlo Ram at village Patta Nathu, in the presence of this witness and Udal Singh. The said Will is stated to be written by Jagdish Chand Sharma, Deed Writer. Thereafter, the said Will was read over and explained to Pohlo Ram and he has admitted the same to be correct and put his thumb impression over the same. Thereafter, other witnesses including this witness have signed the same. Thereafter, the Will is stated to have been registered by Sub-
Registrar, Dhatwal, on the spot, when the same was presented before him. He has proved Will, dated 4.2.2000, Ext. DW1/A.
59. In the cross-examination, this witness has shown his ignorance about the fact that plaintiff No. ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 36 2024:HHC:5648 1 is wife of Pohlo Ram. Will dated 4.2.2000 is stated to have been was prepared at about 11:30-12:00 noon. When, this witness had reached the house of .
Pohlo Ram, no one was there. The other attesting witnesses came there later on. He has deposed that Pohlo Ram used to speak Pahari dialect. After translation was done by the scribe, Pohlo Ram was the first person to put his thumb impression on the Will. The Will in question was consisting of 2-3 pages. In the Will, dated 4.2.2000, Pohlo Ram has not made any reference regarding Wills, dated 29.3.1993 and 17.10.1997.
60. DW-11 is Udhal Singh. He has also deposed regarding the manner, in which, Pohlo Ram has executed the Will and he has signed the same.
61. In the cross-examination, he has deposed that the Will is consisting of two pages. He has admitted that in the Will dated 4.2.2000, Pohlo Ram ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 37 2024:HHC:5648 had not given any reference to the litigation, nor reference to the earlier Will was made.
62. DW-12 is Vinod Kumar. He has deposed that .
plaintiff never visited village Patha Nathu. Pohlo Ram was residing with Joginder and his family members.
As per him, Joginder used to look after Pohlo Ram.
He has deposed that Pohlo Ram was having free and disposing state of mind, during his lifetime. His last rites were performed by Joginder Singh. Plaintiff was not having cordial relations with Pohlo Ram, for the last 35 years. When, Will dated 4.2.2000 was executed, this witness was not present. He has feigned his ignorance regarding Will dated 29.3.1993 and 17.10.1997. He has deposed that Shanti Devi was residing at Talwara. He has admitted that on 4.2.2000, Catheter was inserted into the bladder of Pohlo Ram. On 4.2.2000, Joginder and his wife were not present at their house. He has further deposed that Pohlo Ram had expired on 6.2.2000.
::: Downloaded on - 23/07/2024 20:32:07 :::CIS38 2024:HHC:5648
63. DW-13 is Shalig Ram. He has also supported the case of defendant No. 1 regarding the fact that he has served Pohlo Ram, during his lifetime. His .
last rites were performed by Joginder. He has deposed that Shanti Devi is wife of Pohlo Ram. Pohlo Ram had expired on 6.2.2000. He has further deposed that when Pohlo Ram expired, Joginder was with him. He has feigned ignorance whether on 4.2.2000, Joginder was present or not. He has deposed that Joginder was serving at Bilaspur and used to visit his native place on every Saturday. He has further deposed that on 5.2.2000, Pohlo Ram had disclosed to him that he has executed Will, dated 4.2.2000.
64. DW-14 is Prakash Chand. He has identified his signatures of his father Babu Ram over the Will, Ext. D-3, dated 3.4.1975.
65. To rebut this evidence, plaintiff has examined PW-13 Tulsi Ram. He has deposed that Pohlo Ram ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 39 2024:HHC:5648 has executed his last Will on 17.10.1997, in favour of Shanti Devi, Deep Singh and Sandeep Singh. He has deposed that Pohlo Ram has not executed the .
Will dated 4.2.2000. He has termed the Will dated 4.2.2000, 24.11.1993 and 3.4.1975 as forged. He has further deposed that on 4.2.2000, he had gone to inquire about the well being of Pohlo Ram, but Pohlo Ram was unconscious. He deposed that Pohlo Ram was being looked after by r has further Shanti Devi and her daughters.
66. In his cross-examination, this witness has deposed that Pohlo Ram had executed two Wills, during his lifetime, which were executed on 29.3.1993 and 17.10.1997. He could not disclose as to who had scribed the Will, dated 29.3.1993 and who were the witnesses to it. He has voluntarily stated that this fact was disclosed to him by Pohlo Ram.
::: Downloaded on - 23/07/2024 20:32:07 :::CIS40 2024:HHC:5648
67. Similarly, he could not disclose about the particulars of the Will, dated 17.10.1997. This witness is father in law of Joginder. Will Ext. D-3 .
was not signed by him. On 4.2.2000, the Will was executed by Pohlo Ram. Pohlo Ram was expired on 6.2.2000.
68. This is the entire evidence led by the parties.
69. As stated above, the present appeal has been admitted on the substantial questions of law, which have been reproduced above.
70. In order to decide the said substantial questions of law, it has to be seen whether Will dated 4.2.2000, Ext. D-1 has duly been proved by defendant No. 1 (propounder of the Will) and the suspicious circumstances have been dispelled by the defendants. In this case, total five Wills have been placed on record, details of which are as under:
Sr. Exhibit Date Executed by Executed in Witnessed by No. favour of
1. Ex. D-3 3.4.1975 Pohlo Ram Joginder Babu Ram & Singh Tulsi Ram
2. Ex. P-1 29.3.1993 Pohlo Ram Shanti Devi, Sada Ram and ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 41 2024:HHC:5648 Deep Kumar Hakam Singh and Sanjeev Kumar
3. Ext. D-2 24.11.1993 Pohlo Ram Joginder Babu Ram Singh and Udal Singh .
4. Ext. P-2 17.10.1997 Pohlo Ram Shanti Devi, Ram Singh Deep Kumar and Wali Ram and Sanjeev Kumar (1/4th share, 3/4th share)
5. Ext. D-1 4.2.2000 Pohlo Ram Joginder Brahm Dutt Singh and Udal Singh
71. By way of present suit, the plaintiffs have challenged the Will, dated 4.2.2000, Ext. D-1, in favour of defendant No. 2, by asserting their claim, on the basis of Will(s), dated 29.3.1993 and 17.10.1997. The defendants, in their written statement, have supported the Will, dated 4.2.2000, Ext. D-1. According to them, Ext. D-1 is the last Will, executed by Pohlo Ram.
72. The factual position with regard to execution of the Wills dated 29.3.1993 and 17.10.1997, has been pleaded in para-4 of the plaint. The contents of Para-4 have been contested and controverted by the ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 42 2024:HHC:5648 defendants by pleading that Wills dated 29.3.1993 and 17.10.1997 stand revoked by the latest Will, dated 4.2.2000, Ext. D-2.
.
73. On the basis of pleadings of the parties, the learned trial Court has framed issues No. 3 and 7, based upon Will(s), dated 4.2.2000, 29.3.1993 and 17.10.1997. Issues No. 3 and 15, with regard to Will dated 4.2.2000, has been decided by the learned trial Court, against the defendants, whereas, issue No. 7 has been decided by learned trial Court, in favour of plaintifs, by holding that estate of Pohlo Ram will be devolved, as per Will dated 17.10.1997.
74. Admittedly, the plaintiffs have not assailed the findings of the learned trial Court on issue No. 7, by virtue of which, Wills dated 29.3.1993 and 17.10.1997, have been discarded by the learned trial Court. Meaning thereby, those findings have now attained finality.
::: Downloaded on - 23/07/2024 20:32:07 :::CIS43 2024:HHC:5648
75. On the other hand, the defendants have assailed the findings of the learned trial Court by way of First Appeal, challenging the findings of the .
learned trial Court, on issues No. 1, 3, 4, 5, 8, 9,10, 11 and 12.
76. Although, the testator allegedly executed five Wills, as discussed earlier, however, parties to the lis have assailed only three Wills, which are Ext. D-1, dated 4.2.2000, Exts P-1 and P-2, dated 29.3.1993 and 17.10.1997.
77. While deciding the question of validity of a Will, it is the solemn duty of the Court to see that the document, purported to the Will of the testator, must demonstrate his or her intention. No form of the Will has been prescribed by the law. While deciding the question of Will, the Court has to satisfy its conscience that the document, which is being presented as Will, must express the true intention of the testator.
::: Downloaded on - 23/07/2024 20:32:07 :::CIS44 2024:HHC:5648
78. To ascertain the said fact, the Court has to put itself into the testator's arm chair and to consider all the circumstances, which the testator .
would have taken into consideration, while making the disposition. The document, which is proved to be executed by the testator in his sound and disposing state of mind, has to be considered as Will. Merely, since the document, relied upon by the parties, as Will of the testator is the registered one, does not absolve the prepounder to dispel the suspicious circumstances.
79. As per provisions of Section 63 of the Indian Succession Act, 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 acknowledgment of his signature or mark, over the Will. It is not necessary that more ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 45 2024:HHC:5648 than one witness be present at the same time, and no particular form of attestation shall be necessary.
80. The Hon'ble Apex Court in case titled as .
'Pentakota Satyanarayana & Ors vs Pentakota Seetharatnam & Ors', reported in 2006(1) Civil Court Cases 563 (SC), has discussed the essentials, which are required to be proved, in order to accept the document, as validly executed Will. Paragraph 22 of the said judgment is reproduced, as under:-
"22. It is clear from the definition that the attesting witness must state that each of the two witnesses has seen the executor sign or affix his mark to the instrument or has seen some other persons sign the instrument in the presence and by the direction of the executant. The witness should further state that each of the attesting witnesses singed the instrument in the presence of the executant. These are the ingredients of attestation and they have to be proved by the witnesses. The word 'execution' in Section 68 includes attestation as required by law."
81. The Hon'ble Supreme Court in case titled as, 'Girja Datt Singh v. Gangotri Datt Singh', reported in AIR 1955 SC 346, has elaborately discussed the term 'attestation'. Relevant ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 46 2024:HHC:5648 paragraph 14 of the said judgment, is reproduced, as under:-
"14. It still remains to consider whether the attestation of the .
signature of the deceased on the will, Ex. A-36 was in accordance with the requirements of Section 63, Indian Succession Act. Section 63 prescribes that:
"(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 acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator .............."
r In order to prove the due attestation of the will Ex.
A-36 Gangotri would have to prove that Uma Dutt Singh and Badri Singh saw the deceased sign the will and they themselves signed the same in the presence of the deceased. The evidence of Uma Dutt Singh and Badri Singh is not such as to carry conviction in the mind of the Court that they saw the deceased sign the will and each of them appended his signature to the will in the presence of the deceased. They have been demonstrated to be witnesses who had no regard for truth and were ready and willing to oblige Gur Charan Lal in transferring the venue of the execution and attestation of the documents Ex. A-23 and Ex. A- 36 from Gonda to Tarabganj for reasons best known to themselves.
If no reliance could thus be placed upon their oral testimony, where would be the assurance that they actually saw the deceased execute the will in their presence and each of them signed the will in the presence of the deceased. It may as well be that the signature of the deceased on the will was appended at one time, the deceased being there ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 47 2024:HHC:5648 all alone by himself and the attestations were made by Uma Dutt Singh and Badri Singh at another time without having seen the deceased sign the will or when the deceased was not present when they appended their signatures thereto in token of attestation. We have no satisfactory evidence before us to enable .
us to come to the conclusion that the will was duly attested by Uma Dutt Singh and Badri Singh and we are therefore unable to hold that the will Ex. A-36 is proved to have been duly executed and attested."
82. The onus to prove the fact that the document has been executed by the testator, in his sound and disposing state of mind, is always upon the propounder. Not only this, the propounder has to dispel the suspicious circumstances, if any, raised by the person, challenging the Will.
83. Now, this Court will proceed further in order to determine as to whether Wills, Ext. D-1, Ext. P-1 and Ext. P-2 have duly been proved by the parties to the lis?
84. First of all, coming to Will Ext. D-1, which has been relied upon by defendant No. 1, Joginder Singh. The said Will has been executed on ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 48 2024:HHC:5648 4.2.2000. Brahum Dutt and Udal Singh have been shown to be the attesting witnesses.
85. The attesting witness Brahum Dutt, has .
appeared in the witness box as DW-10. In his examination-in-chief, he has deposed that on 4.2.2000, Pohlo Ram had executed the Will in his sound and disposing state of mind, in favour of Joginder Singh. The Will was written by Jagdish Chand, Deed Writer, at the instance of Pohlo Ram, and the same was readover and explained to him and after admitting the same to be correct, he had put his thumb impression. Thereafter, the same was signed by this witness and other witnesses.
The Will, thereafter, was registered by Sub-
Registrar, Dhatwal, at the spot, at village Patta Nathu.
86. In his cross-examination, this witness has deposed that the Will was scribed at about 11:30- 12:00 noon. When, this witness has reached the ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 49 2024:HHC:5648 house of Pohlo Ram, no one is stated to be present there, as, all of them came there later on. In the presence of this witness, Tehsildar, Deed Writer .
and Udal Singh, the Will was allegedly dictated by Pohlo Ram, in Pahari dialect and the Scribe had translated the same. The Will is stated to be consisting of 2-3 pages, which was brought by the scribe. Pohlo Ram has got scribed his address in the Will. In the Will, there was no reference, with regard to the plaintiffs. He has denied the suggestion with regard to the ailment of Pohlo Ram, at the relevant time. In the Will, Ext. D-1, no reference, with regard to the earlier Wills, dated 29.3.1993 and 17.10.1997, has been given by Pohlo Ram.
87. DW-11 Udal Singh, has deposed on the same lines. However, according to his cross-
examination, he was called by Pohlo Ram from his landline number at 8:00 a.m. and he reached at ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 50 2024:HHC:5648 the house of Pohlo Ram at 11:00 a.m. According to this witness, Pohlo Ram was present at his house.
On the way, Brahum Dutt, Jagdish Chand, Deed .
Writer, Tehsildar and the Pradhan met him.
Thereafter, they went to the house of Pohlo Ram.
He has deposed that at that time, Joginder Singh was not present there, whereas, he has admitted about the feeble condition of Pohlo Ram, by stating that Catheter was fixed in the bladder of Pohlo Ram.
88. In his cross-examination, this witness has admitted that he came to the house of Pohlo Ram on 4.2.2000. However, he again stated that on 5.2.2000, he had gone to the house of Pohlo Ram, being Sunday.
89. As per the stand taken by the defendants, Pohlo Ram expired on 6.2.2000, on the third day of alleged execution of the Will dated 4.2.2000. This witness has admitted the presence of Joginder on ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 51 2024:HHC:5648 4.2.2000, during evening time, at his residence.
Wife of Joginder Singh is stated to be present in house on 4.2.2000.
.
90. In the Will, Ext. D-1, the testator has given his age as 85 years. In the said document, he has given the reference with regard to ailment of Pohlo Ram. There is a reference in the Will, Ext. D-1 that the testator had earlier executed two Wills, in favour of his grand sons, but according to the testator, they have not served him. As such, he had cancelled those Wills. The Wills Ext. P-1 and Ext.
P-2 are not exclusively in favour of grand sons of the testator, but, both are in favour of Shanti Devi plaintiff, also.
91. This fact assumes significance, as the testator was ill and Catheter was affixed in his bladder. Unfortunately, the testator expired on 6.2.2000. Had the testator been in his sound and disposing state of mind, then, he might have given ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 52 2024:HHC:5648 reference, with regard to the earlier Wills, by deposing that both the earlier Wills were executed in favour of his wife and grand sons. Whereas, .
there is a simple reference that the earlier Wills were in favour of grand sons.
92. The existence of incorrect information in the Will, itself, is a suspicious circumstance, to conclude that the document Ext. D-1 was not consciously executed by the testator, with his sound and disposing state of mind.
93. Documents Ext. P1 and Ext. P-2 both are registered one. Non-reference of the documents Ext. D-2 and D-3 in the Will, Ext. D-1 is also another suspicious circumstance, which is sufficient to take away this document from the purview of validly executed document by the testator, in his sound and disposing state of mind.
94. Although, it has been stated by the alleged attesting witnesses that the Will was attested at ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 53 2024:HHC:5648 village Patta Nathu and endorsement is also there, on the document, Ext. D-1, but it has not been explained as to who had moved the application .
before the Sub-Registrar, for attesting the document, by visiting the house of the testator. In the absence of any positive evidence, in this regard, the defendants have misreably failed to dispel the suspicious circumstance. As such, the Will, Ext. D-
1 has rightly been held to be not proved to be the consciously executed document, by the testator, in his sound and disposing mind, and the learned First Appellate Court has fallen into error, by holding that the Will, Ext. D-1 has duly been proved.
95. So far as the documents Ext. P-1 and P-2, which have been relied upon by the plaintiffs, as Wills, allegedly executed in favour of plaintiff No. 1 and defendants No. 2 and 3, by Pohlo Ram, are concerned, document, Ext. P-1 is stated to be ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 54 2024:HHC:5648 executed and registered on 29.3.1993. The said document has been relied upon by the plaintiffs, as the Will of Pohlo Ram, by virtue of which, he has .
bequeathed his property to plaintiff No. 1 and defendants No. 2 and 3. Since, the propounder of the said Will is plaintiff, as such, in order to prove this document, as validly executed Will of Pohlo Ram, in sound and disposing state of mind, she has examined PW-8 Hakam Singh, as one of the attesting witnesses, to the alleged Will, Ext. P-1.
His affidavit, which has been filed in examination-
in-chief, is simply confined to the fact that he is witness to Ext. P-1 and signed the same in the presence of other witnesses. He has not deposed that the testator has put his thumb impression, in their presence, or he has received the acknowledgment regarding execution of the Will by the testator. The statement of this witness is too short to confirm formality of attestation with animo ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 55 2024:HHC:5648 attestandi, as discussed by the Hon'ble Supreme Court in 'Girja Datt Singh's case supra.
96. The term 'attestation' has again been .
discussed, by the Hon'ble Supreme Court, in case 'N. Kamalam (dead) and Another v. Ayyaswamy and Another', reported in AIR 2001 Supreme Court 2802. Relevant paragraphs 26 and 27 of the r to said judgment are reproduced, as under:-
"26. The effect of subscribing a signature on the part of the scribe cannot in our view be identified to be of same status as that of the attesting witnesses. The signature of the attesting witness as noticed above on a document, required attestation (admittedly in the case of a will the same is required), is a requirement of the statute, thus cannot be equated with that of the scribe. The full Bench judgment of the Madras High Court in H. Venkata Sastri and Sons and others v. Rahilna Bi and others (AIR 1962 Madras 111), wherein Ramachandra Iyer, J. speaking for the full bench in his inimitable style and upon reliance on Lord Cambells observation in Burdett v. Spilsbury has the following to state pertaining to the meaning to be attributed to the word 'attestation':
The definition of the term attested which is almost identical with that contained in S.63 (c) of the Indian Succession Act, has been the result of an amendment introduced by Act 27 of 1926. Prior to that amendment it was held by this court that the word attested was used only in the narrow sense of the attesting witness being present at the time of execution. In Shamu Pattar v. Abdul ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 56 2024:HHC:5648 Kadir ILR 35 Mad 607 (PC), the Privy Council accepted the view of this court that attestation of a mortgage deed must be made by the witnesses signing his name after seeing the actual execution of the deed and that a mere acknowledgment of his signature by the executant to the .
attesting witness would not be sufficient. The amending Act 27 of 1926 modified the definition of the term in the Transfer of property Act so as to make a person who merely obtains an acknowledgment of execution and affixed his signature to the document as a witness, an attestor. It will be noticed that although S.3 purports to define the word attested it has not really done so. The effect of the definition is only to give an extended meaning of the term for the purpose of the Act; the word attest is used as a part of the definition itself. It is, therefore, necessary first to ascertain the meaning of the word attest independent of the statute and adopt it in the light of the extended or qualified meaning given therein. The word attest means, according to the Shorter Oxford Dictionary to bear witness to, to affirm the truth or genuineness of, testify, certify. In Burdet v. Spilsbury, (1842-43) 10 Cl and F 340, Lord Cambell observed at page 417.
"What is the meaning of an attesting witness to a deed? Why, it is a witness who has seen the deed executed, and who signs it as a witness."
The Lord Chancellor stated, "the party who sees the will executed is in fact a witness to it; if he subscribes as a witness, he is then an attesting witness."
The ordinary meaning of the word would show that an attesting witness should be present and see the document signed by the executant, as he could then alone vouch for the execution of the document. In other words, the attesting witness must see the execution and sign. Further, attestation being an act of a witness, i.e., to ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 57 2024:HHC:5648 testify to the genuineness of the signature of the executant, it is obvious that he should have the necessary intention to vouch it. The ordinary meaning of the word is thus in conformity with the definition thereof under the Transfer of Property Act before it was amended .
by Act 27 of 1926. Before that amendment, admission of execution by the executant to a witness who thereupon puts his signature cannot make him an attestor properly so called, as he not being present at the execution, cannot bear witness to it; a mere mental satisfaction that the deed was executed cannot mean that he bore witness to execution. (4) After the amendment of S.3 by Act 27 of 1926, a person can be said to have validly attested an instrument, if he has actually seen the executant sign, and in a case where he had not personally witnessed execution, if he has received from the executant a personal, acknowledgment of his signature, mark etc. Thus of the two significant requirements of the term attest, namely (1) that the attestor should witness the execution, which implies his presence, then, and (2) that he should certify or vouch for the execution by subscribing his name as a witness; which implies a consciousness and an intention to attest, the Amending Act modified only the first; the result is that a person can be an attesting witness, even if he had not witnessed the actual execution, by merely receiving personal acknowledgment from the executant of having executed the document and putting his signature. But the amendment did not affect in any way the necessity for the latter requirement, namely, certifying execution which implies that the attesting witness had the animus to attest."
27. It was next contended that in the event of there being an intent to attest, that itself should be sufficient compliance of the requirement of law. While the introduction of the concept of animus to attest cannot be doubted in any way whatsoever and also do feel it ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 58 2024:HHC:5648 relevant in the matter of proof of a document requiring attestation by relevant statutes but the same is dependant on the fact situation. The learned Judge as noticed above has himself recorded that two significant requirements of the term attest viz., that the attestor .
should witness the execution thereby thus implying his presence on the occasion and secondly that he should certify for execution by subscribing his name as a witness which implies consciousness and intention to attest. Unfortunately, however, the factual score presently available does not but depict otherwise. The scribes presence cannot be doubted but the issue is not what it is being said to be in support of the appeal that the scribe having subscribed his signature, question of further attestation would not arise this issue unfortunately we are not in a position to lend concurrence with. The will as produced, records the following at page 4 thereof: (page 106 of the P.Book) Witnesses L.T.I. of Masanae Gowder
1. (sd/-(T.subbiya) S/oVeerai Gowder 25/298 Thomas Street Coimbatore.
2. (sd/-) B. Govindaraju s/o S. Balagurumurthy Chettiar 25/250 Rangai Gowder Street, Coimbatore.
..S/d Arunachalam"
The animus to attest, thus, is not available, so far as the scribe is concerned: he is not a witness to the will but a mere writer of the will. The statutory requirement as noticed above cannot thus be transposed in favour of the writer rather goes against the propounder since both the witnesses are named therein with detailed address and no attempt has been made to bring them or to produce them before the court so as to satisfy the judicial conscience. Presence of scribe and his signature appearing on the document does not by itself be taken to the proof of due attestation unless the situation is so expressed in the document itself this is again however not ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 59 2024:HHC:5648 the situation existing presently in the matter under consideration. Some grievance was made before this court that sufficient opportunity was not being made available, we are however, unable to record our concurrence therewith. No attempt whatsoever has been .
made to bring the attesting witnesses who are obviously available."
(self emphasis supplied)
97. Even otherwise, the plaintiff has not sought declaration on the basis of Will, Ext. P-1. She has simply given reference regarding these Wills. Had the documents, Ext. P-1 & Ext. P-2, been relied upon by the plaintiff, as the Will of Pohlo Ram, then, certainly, the plaintiff would have sought declaration, on the basis of these documents. As such, these documents are too short to be considered as validly executed Wills by Pohlo Ram, in sound and disposing state of mind.
98. The learned trial Court has given the relief to the plaintiff on the basis of Will dated 17.10.1997, Ext. P-2. The said document was allegedly witnessed by Ram Singh and Bali Ram. Bali Ram ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 60 2024:HHC:5648 has simply deposed that Will, Ext. P-2 was signed by him, in the presence of other witnesses.
Although, he has deposed that the Deed Writer, .
after scribing the alleged Will, read over the same to Pohlo Ram and Pohlo Ram accepted the same to be correct and put his thumb impression, in his presence. As such, his evidence is too short to prove the due attestation of the Will, in the presence of this witness.
99. Even otherwise, considering the peculiar facts and circumstances of the case, according to which, there are five alleged Wills, allegedly executed by Pohlo Ram and keeping in view the number of these Wills, this Court is of the view that Pohlo Ram was not having sound and disposing state of mind, due to his old age, as well as, due to the ailment, as per deposition of the witnesses. As such, Ext. P-2 is too short to be ::: Downloaded on - 23/07/2024 20:32:07 :::CIS 61 2024:HHC:5648 considered as duly executed document by Pohlo Ram, in his sound and disposing state of mind.
100. Consequently, the learned trial Court .
has fallen into error that document Ext. P-2 is a validly executed Will, allegedly executed in his sound and disposing state of mind.
101. Similarly, the learned First Appellate Court, although, to has rightly discarded document, Ext. P-2, but had fallen into error, by r the setting the findings of the learned trial Court Court, by virtue of which, document, Ext. D-1 has been discarded to be the validly executed Will of Pohlo Ram in sound and disposing state of mind.
102. All the three documents, Ext. D-1, Ext.
P-1 and Ext. P-2 do not depict the real intention of the testator.
103. No other point urged or argued.
::: Downloaded on - 23/07/2024 20:32:07 :::CIS62 2024:HHC:5648
104. Substantial questions of law are decided accordingly.
105. Consequently, succession of Pohlo Ram .
is ordered to be devolved upon his Class-I legal heirs, as per provisions of Section 8 of the Hindu Succession Act.
106. In view of the discussion made above, the appeal is allowed and the judgment and decree, passed by the learned First Appellate Court, is set aside and the judgment and decree, passed by the learned trial Court, is modified, by declaring the plaintiffs and defendant No. 1 as Class-I legal heirs of Pohlo Ram. As such, succession of Pohlo Ram is ordered to be devolved upon them, as per the Hindu Succession Act. In addition to this, mortgage deed, in favour of defendants No. 4 to 6, is declared as null and void.
::: Downloaded on - 23/07/2024 20:32:07 :::CIS63 2024:HHC:5648
107. Keeping in view the peculiar facts and circumstances of the case, there shall be no order, as to costs.
.
108. Decree sheet be prepared accordingly.
109. Record be sent back.
(Virender Singh)
Judge
23.7.2024
Kalpana r
::: Downloaded on - 23/07/2024 20:32:07 :::CIS