Himachal Pradesh High Court
Chander Mani vs Sh. Narpat (Now Deceased) Through His ... on 14 November, 2022
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
RSA No. 77 of 2007
.
Decided on: 14.11.2022
Chander Mani ....Appellant.
Versus
Sh. Narpat (now deceased) through his Legal Heirs
...Respondents.
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes
For the appellant r : Mr. G.R. Palsra, Advocate.
For the respondents : Mr. Vinod Thakur, Advocate.
Ajay Mohan Goel, Judge (Oral)
By way of this regular second appeal, the appellant has challenged the judgment and decree passed by the Court of learned District Judge, Mandi, in Civil Appeal No. 93 of 2005, titled as Sh. Narpat vs. Sh. Chandermani and another, dated 02.01.2007, in terms whereof, the learned Appellate Court while setting aside the judgment and decree passed by the learned Trial Court, decreed the suit of the plaintiff in the following terms:-
"As a sequel to my findings on point No. 1 above, the appeal is accepted and the judgment and decree under appeal are set aside. Consequently the suit of the plaintiff is decreed. The will dated 10.02.1989 is declared to have not been validly executed by Nokhu in favour of the defendant and 1 Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 24/12/2022 09:57:09 :::CIS 2
plaintiff being successor of Nokhu is entitled to the suit property under Hindu Succession Act and the .
possession of the suit land comprised in khewat Khatauni No. 82/19 measuring 9-9-14 bighas situated in village Janed, illaqua Pachhihar, Tehsil Sadar, District Mandi, H.P. including the house be delivered to the plaintiff and proforma defendants."
2. Brief facts necessary for the adjudication of the present appeal are as under:-
Respondent/plaintiff, namely, Narpat (hereinafter to be referred as 'the plaintiff' for convenience) filed a suit for declaration and possession as also for the consequential relief to the effect that he and proforma defendant No. 2 were co-owners of the estate of Nokhu and the defendant who is altogether a stranger, was employed as a Lineman in the Telecom Department.
The defendant happened to be posted in the area of the plaintiff on account of his job and he accordingly got acquainted with the elder brother of Nokhu. Elder brother of Nokhu was Karam Singh who pre-deceased Nokhu. Karam Singh left behind his wife Meera Devi, who also pre-deceased Nokhu. After the death of Karam Singh, the suit property was inherited by his widow and after her demise, the same devolved upon Nokhu Ram. Nokhu was deaf and dumb and was not having sound disposing mind and was being looked after by the plaintiff after the death of elder brother of Nokhu. A ::: Downloaded on - 24/12/2022 09:57:09 :::CIS 3 litigation was instituted against the defendant by Nokhu through plaintiff for permanent prohibitory injunction, which continued till .
the month of September, 1998 and on 24th September, 1998, the same was dismissed as defendant had produced, after the death of Nokhu, a registered Will, purported to have been executed by Nokhu in favour of the defendant. After the dismissal of the case, defendant took over forcible possession of the suit property under the garb of said false and forged Will. As per the plaintiff, the defendant was not having any right, title or interest over the suit property and it was the plaintiff and proforma defendant No. 2 who were to inherit the entire estate of Nokhu but due to said fictitious and forged Will dated 10.02.1989, which was attested on the same day, the defendant took forcible possession of the suit property.
Nokhu had died on 15.03.1998. It was further the case of the plaintiff that the defendant from the very beginning was making successive applications for correction of revenue entries, which all were contested both by Meera Devi and Nokhu, however, the defendant succeeded in his illegal designs by producing the forged Will of Nokhu after his death and was trying to have the suit land mutated in his favour on the basis of the said Will. As Nokhu was deaf and dumb and was having no discretion or disposing state of mind and was being looked after by the plaintiff, therefore, the purported Will was false and fictitious as Nokhu was not a fit person to make a Will. It was also alleged that deceased Nokhu ::: Downloaded on - 24/12/2022 09:57:09 :::CIS 4 was neither ever looked after by the defendant nor there was any occasion for the defendant to look after him. As per the plaintiff, .
the Will was not executed by Nokhu at all and thumb impression etc. upon it was not in fact that of Nokhu. As per the plaintiff, the defendant was requested many a times to have the Will cancelled but as he did not do so, hence the suit.
3. The suit was resisted by the defendant inter alia on the ground that he was not a stranger and was having every right, title or interest over the suit land. As per the defendant, Karam Singh gave the suit property to the defendant for cultivation as a tenant.
The defendant had also made a cow-shed upon it and made the land cultivable. He admitted that Karam Singh and Meera Devi died issueless but denied that Nokhu was deaf and dumb.
According to the defendant, Nokhu was having problem of stammering and he was having sound disposing mind and was well aware as to what was good for him and what was bad. It was denied by the defendant that the Will was a result of fraud or the same was a fictitious Will. It was also denied that possession of the suit land was taken forcibly by the defendant as alleged. As per the defendant, the Will was voluntarily executed by Nokhu out of his own free will. It was admitted by the defendant that he had made successive applications for correction of revenue entries against Meera Devi and Nokhu. It was also stated in the written statement that the defendant had made an application for correction of ::: Downloaded on - 24/12/2022 09:57:09 :::CIS 5 revenue entries against Nokhu dated 25.07.1986, which was allowed by Assistant Collector 2nd Grade on 30.06.1987. Plaintiff .
filed an appeal against that order which was accepted. The defendant filed revision before the Court of Divisional Commissioner. The matter went up to the Court of Financial Commissioner and from there, the same was remanded back to Collector Mandi, but therein, the plaintiff made a statement that as he had filed a civil suit, therefore, he did not want to contest the appeal. As per the defendant, the plaintiff was therefore stopped by the principle of res judicata to again raise this issue by way of the civil suit. According to the defendant, he was looking after not only Nokhu but his brother Karam Singh also and it was denied that thumb impression upon the Will was of someone else and not of Nokhu.
4. On the basis of pleadings of the parties, learned Trial Court framed the following Issues:-
1. Whether the Will dated 10.02.1989 is a false, fictitious and forged. If so, its effects? OPP
2. Whether the plaintiff and proforma defendant are successors of deceased Nokhu as alleged? OPP
3. If issues No. 1 and 2 proved in affirmative, whether the plaintiff is entitled for the decree of possession as prayed for? OPP ::: Downloaded on - 24/12/2022 09:57:09 :::CIS 6
4. Whether the suit of the plaintiff is barred by principle of resjudicata as alleged? OPD .
5. Whether the defendant was inducted tenant over the suit land by Sh. Karan Singh as alleged? If so, its effects? OPD
6. Relief.
5. On the basis of pleadings and evidence led by the parties in support of their respective cases, the Issues so framed were answered by the learned Trial Court as under:-
Issue No. 1: No.
Issue No. 2: Redundant.
Issue No. 3: No.
Issue No. 4: No.
Issue No. 5: Redundant.
Relief : The suit of the plaintiff is dismissed
with no order as to cost as per my
operative portion of the judgment.
6. The suit was dismissed by the learned Trial Court by inter alia returning the findings that in fact from the evidence on record, it clearly stood proved by the defendant that the Will was duly executed. Learned Court further held that onus to prove that the Will was forged and fictitious document was upon the plaintiff and plaintiff only stated that deceased Nokhu was deaf and dumb at the time of making the Will and was not of sound disposing mind but this was not proved by the plaintiff by leading cogent and ::: Downloaded on - 24/12/2022 09:57:09 :::CIS 7 convincing evidence on record. Learned Court held that although the plaintiff placed on record the certificate issued by CMO, Mandi, .
but a perusal of the same demonstrated that it was mentioned therein that Nokhu was suffering from only speech disarticulation and he was not deaf, however, said CMO was also not examined by the plaintiff. Learned Court held that the defendant had examined Doctor who has stated that Nokhu was not deaf and dumb, rather he used to stammer. In his opinion, deafness and dumbness are only physical incapacities, which never in any manner proved unsoundness of mind, which has to be proved by leading cogent and convincing evidence on record, which onus was not discharged by the plaintiff. On the basis of these findings, the suit was dismissed by the learned Trial Court.
7. In appeal, these findings have been reversed. Learned Appellate Court while setting aside the judgment and decree passed by the learned Trial Court has held that it was clear from the perusal of Ext. D-3, i.e. order passed by the Divisional Commissioner, Mandi, dated 31.07.1989, that relationship between Nokhu and defendant was not cordial and the Court cannot ignore the fact that the previous litigation was filed by Nokhu against the defendant, through his next friend, i.e. the plaintiff, regarding the same suit land. Learned Appellate Court also observed that the correction application was seriously contested by both the parties and the matter was ultimately taken ::: Downloaded on - 24/12/2022 09:57:09 :::CIS 8 to the Court of Financial Commissioner, who accepted the recommendations of the Divisional Commissioner vide order Ext.
.
D-5. Learned Appellate Court observed that if Nokhu was having cordial relations with the defendant, then, there was no occasion for Nokhu to contest the appeal/revision which were filed by the defendant before the Collector, Divisional Commissioner and Financial Commissioner. Learned Appellate Court observed that the filing of the appeal/revision as well as previous litigation was suggestive of the fact that relations between Nokhu and the defendant were far from being cordial. Learned Appellate Court also held that learned Counsel for the defendant could not explain said circumstances during the course of arguments. Learned Appellate Court observed that DW5 Dina Nath, who was the person who identified Nokhu before the Sub Registar, Mandi, had admitted that he had not represented Nokhu as an Advocate in correction applications. Learned Appellate Court also held that Rameshwar (DW-6) was not aware about the relationship of Nokhu and the plaintiff and there was nothing in his testimony as to in what manner the Sub Registrar asked testator Nokhu regarding execution of the Will since Nokhu was mentally retarded, as was clear from the observations made by the Court in the previous suit.
Learned Appellate Court also observed that the onus was very heavy upon the Sub Registrar as well as marginal witness so as to ascertain the true nature of the document being executed by ::: Downloaded on - 24/12/2022 09:57:09 :::CIS 9 Nokhu and testimony of these witnesses demonstrated that it was this witness who had taken Nokhu to the house of Dina Nath (DW-
.
5). Learned Appellate Court observed that it was highly improbable that the defendant was not in the knowledge of the Will Ext.
DW4/A nor had accompanied Nokhu to the office of the Sub Registrar when the evidence on record suggested that Nokhu was suffering from speech disarticulation etc. It held that rather it was the case of the defendant that he had taken Nokhu to Dr. D.K. Arora (DW-1) for his medical examination and it was really strange that when cases were pending between Nokhu and defendant, how Nokhu was taken to Dr. Arora by the defendant. It was nowhere the case of the defendant that before the death of Nokhu, relations between the defendant and Nokhu became cordial, which were earlier strained on account of filing of the cases. Learned Appellate Court observed that learned Trial Court while considering the question of due execution of the Will had heavily relied upon the testimony of Dina Nath (DW-5), Pune Ram (DW-4) and Rameshwar (DW-6) but lost sight of important fact that Nokhu was not a normal person and in the previous case, he was held to be mentally retarded and also a deaf and dumb person. Learned Appellate Court held that even a deaf and dumb person can execute a Will but the law enjoins that the contents of the Will and nature of the document must be explained to the testator. Learned Appellate Court also held that pedigree table Ext. PC proved the ::: Downloaded on - 24/12/2022 09:57:09 :::CIS 10 relationship of the plaintiff with testator Nokhu, wherein Meera Devi is recorded as widow of Karam Singh and Karam Singh is .
recorded as son of Thaliya. Plaintiff Narpat is recorded as son of Jassa and Jassa and Thaliya were recorded as brothers, which demonstrated that plaintiff and Nokhu had common ancestors.
Learned Appellate Court also held that the plaintiff in order to prove his case had examined himself as PW-1 and made a detailed statement in support of his case and clearly stated that Nokhu was deaf and dumb and was mentally retarded and was being looked after by the plaintiff and he had not executed any Will in favour of the defendant during his lifetime. Learned Appellate Court observed that the plaintiff was subjected to scurrilous cross examination but there was hardly anything in his testimony to support the case of the defendant. Learned Court also observed that taking into consideration the statement of PW-2 Sota Ram, who had deposed in the Court about the physical and mental state of Nokhu, the onus to prove the due execution of the Will was upon the defendant, who was the propounder of the Will Ext. DW-4/A and the evidence of the plaintiff is not of much importance except the question of testamentary capacity and suspicious circumstances shrouding the execution of the Will. Learned Appellate Court also held that learned Trial Court had not returned any finding on issue No. 5, which issue pertained to the fact as to whether the defendant was inducted as tenant over the suit land ::: Downloaded on - 24/12/2022 09:57:09 :::CIS 11 by Karam Singh, predecessor of Nokhu. Learned Appellate Court also held that the learned Trial Court had ignored the observations .
which were made by the Divisional Commissioner in his order dated 31.07.1989 that the question of Nokhu being deaf and dumb was to be decided first and appropriate guardian was to be appointed for defending the case on behalf of Nokhu in case he is found to be not in a position to defend his interest properly.
Learned Appellate Court also held that the Trial Court had not even framed proper issues in the case and in fact the onus to prove due execution of the Will is always upon the propounder of the Will. The Court also held that it was settled law, as was held by Hon'ble Supreme Court, that where no issue was framed on the question which arises out of the pleadings of the parties and parties have led their entire evidence on all the pleas raised by them, they cannot be permitted to urge at the conclusion of the proceedings or in appeal that they were taken by surprise by non-
framing of a particular issue when each of them had already exhausted their evidence. On the basis of aforesaid findings, learned Appellate Court set aside the judgment and decree passed by the learned Trial Court and decreed the suit of the plaintiff.
8. Feeling aggrieved, the defendant filed this appeal, which was admitted on 14.06.2007 on substantial questions of law No. 1 and 2, which read as under:-
::: Downloaded on - 24/12/2022 09:57:09 :::CIS 12"(1) Whether the 1st Appellate Court has misread, misinterpreted and misconstrued the oral as well as .
documentary evidence of the parties especially Will Ext. DW-4/A, statement of DW-4, DW-5 and DW-6, which has resulted into grab failure and miscarriage of justice to the appellant?
(2) Whether taking of active part by the propounder while making the Will is a suspicious circumstance of Will?"
9. I have heard learned Counsel for the parties and also gone through the judgments and decrees passed by learned Courts below as well as record of the case.
10. I will deal with both the substantial questions of law separately.
Substantial Question of Law No. 1:-
11. The findings which have been recorded by learned Appellate Court with regard to Will Ext. DW-4/A as well as the veracity of statements of DW-4, DW-5 and DW-6, have been referred to by me in detail hereinabove. A perusal of the findings which have been so returned by learned Appellate Court when compared with the testimony of said three witnesses and the mode and manner in which they have deposed is suggestive of the fact that there was neither any misinterpretation nor any misconstruction of the Will in question. In fact, a perusal of the ::: Downloaded on - 24/12/2022 09:57:09 :::CIS 13 statements made by DW-4, DW-5 and DW-6 demonstrates that none of these witnesses was able to convince the Court as to why .
they were made a party to the purported execution of the Will by Nokhu. This fact when seen with the factum of Nokhu purportedly being deaf and dumb, obviously casts a duty upon the Court to be circumspect with regard to the consideration of the statements of these three witnesses so as to come to the conclusion that the Will was executed in accordance with law or not and the findings which have been returned in this regard by the learned Appellate Court are the correct findings as the learned Court has appreciated the statements of these three witnesses in the peculiar facts of this case wherein the executor of the Will was stated to be a deaf and dumb person. On the other hand, learned Trial Court erred in not doing so. This Court is conscious of the fact that consistent stand of defendant was that Nokhu was not deaf and dumb but this Court is satisfied that there is ample evidence on record from which inference can be drawn by the Court that Nokhu was not only having the problem of stammering but he was also deaf and dumb. This was also evident from the fact that earlier suit instituted against the present appellant by Nokhu was filed by him through his next friend, i.e. the plaintiff. This is also evident from the fact that the applications which were filed by the defendant against Nokhu for correction of revenue entries, filing of which applications has been admitted by the defendant, were also ::: Downloaded on - 24/12/2022 09:57:09 :::CIS 14 contested by Nokhu Ram through his next friend, i.e. the plaintiff.
This is further evident from the fact, as has been observed by .
learned Appellate Court also that if Nokhu Ram was a person having sound statement of mind, then nothing prevented him to bring this fact either to the knowledge of Civil Court in the previous suit or the revenue authorities in proceedings which were pending.
Nothing prevented Nokhu Ram to have had made a statement either before the Court or the revenue authorities that he had not authorized the plaintiff to pursue his case but fact of the matter remains that this was not done by Nokhu Ram either before the Court of law or before the revenue authorities and the litigations between Nokhu Ram and the appellant were defended by Nokhu Ram through the plaintiff. Accordingly in the light of what has been discussed hereinabove, this Court is convinced that the learned Appellate Court has not misinterpreted or misconstrued the oral as well as documentary evidence led by the parties especially Will Ext. DW-4/A or the statements of DW-4, DW-5 and DW-6. This Court also concurs with the findings which have been returned by learned Appellate Court that in fact there was no occasion for the appellant to have had taken Nokhu for his medical examination in the teeth of litigations which ware pending between them and no prudent person would have otherwise accompanied his adversary to a ::: Downloaded on - 24/12/2022 09:57:09 :::CIS 15 Doctor so as to ascertain his physical state of mind. The very fact that Nokhu accompanied the appellant for his medical examination .
and that too at the time when there were litigations pending between them is also suggestive of the fact that Nokhu was not able to understand as to what was good for him and what was bad for him. This substantial question of law is answered accordingly.
Substantial Question of Law No. 2:-
12. In order to answer this substantial question of law, it is relevant to refer to the cross examination of the appellant.
Appellant/defendant entered the witness box as DW2. In his cross examination, he denied the suggestion that at the time of the execution of the Will, he had made some fictitious person available to have the Will executed, rather he self stated that he was not present at the time of execution of the Will and that he came to know about the execution of the Will only after the death of Nokhu.
Said statement of the defendant, if put in different words, means that the defendant played no role in the execution of the Will executed by Nokhu and execution of the Will in his favour was not in the knowledge of defendant and he acquired its knowledge after the death of Nokhu. The scribe of the Will entered the witness box as DW-5. He deposed in the Court that he had scribed the Will as was desired by Nokhu Ram. He further stated that Nokhu Ram used to stammer but otherwise he was alright and was understanding his good and bad. He also deposed in his ::: Downloaded on - 24/12/2022 09:57:09 :::CIS 16 examination-in-chief that he was practicing as a Lawyer and he knew Nokhu quite well. However, in his cross examination, he .
stated that he had not represented Nokhu in any of the matters and further he came to know about Nokhu Ram only because of the cases which were going on about his 'Girdawri'. One of the marginal witness, Sh. Rameshwar, has entered the witness box as DW-6. He stated in the Court that the Will was scribed by Dina Nath, Lawyer, on the asking of Nokhu and thereafter the Will was read over to Nokhu who after affirming the same to be correct appended his thumb impression upon the same. This witness stated that thereafter he and marginal witness appended their signatures upon the Will. In his cross examination, this witness deposed that there was a distance of 2 to 2 ½ kms. between his house and house of Nokhu and Nokhu Ram had called him the same day for witnessing the Will. He deposed that they went to the house of Dina Nath (DW-5) with Nokhu. He denied that Nokhu was deaf and dumb. Now a scrutiny of the statements of DW-5 and DW-6 demonstrates that both these witnesses have deposed in one voice that the Will was scribed on the asking of Nokhu. In this backdrop, it is necessary to go through the statement of DW-4 Punna Ram, who was serving as Sub Registrar at the time when the Will was registered. Whereas this witness denied in the Court that Nokhu was deaf and dumb and he reiterated the case of the appellant/defendant that Nokhu only stammered in the course of ::: Downloaded on - 24/12/2022 09:57:09 :::CIS 17 speaking but then he was confronted with his report Ext. 2, which was an inquiry conducted by said witness in the course of an .
application filed by the appellant for correction of revenue record, in which this very officer has recorded in his order dated 30.06.1997 that Nokhu was Thatha and could only understand by signs and gestures. Well, if Nokhu could understand by signs and gestures only, then the statements of both DW-5 and DW-6 that the Will was scribed, as per verbal instructions of Nokhu, are prima facie incorrect and false. None of these witnesses have deposed in the Court that the Will was scribed by interpreting the signs and gestures of Nokhu and that the scribe of the Will otherwise understood the signs and gestures of deaf and dumb persons so as to write down the Will scribed by such a person. All these facts clearly demonstrate that the Will was shrouded with extreme suspicious circumstances, especially keeping in view the mental and physical condition of the executor of the Will. Though the case of the appellant has been that the he has not participated in the execution of the Will at all, but as the Court can safely conclude that Nokhu Ram was not mentally or physically in a condition to either engage a Lawyer to scribe the Will or gather witnesses to witness the Will, all this but natural appears to have been done by the appellant as the Will was executed in his favour. Therefore, preparation of the Will is writ large at the behest of the beneficiary of the same and the Will, in these circumstances, becomes highly ::: Downloaded on - 24/12/2022 09:57:09 :::CIS 18 suspicious. This substantial question of law is answered accordingly.
.
In view of above discussion, as this Court does not finds any merit in the present appeal, the same is accordingly dismissed. Pending miscellaneous application(s), if any, also stand disposed of accordingly.
(Ajay Mohan Goel)
November 14, 2022 Judge
(narender)
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