Allowed

Kundan Lal v. Bali Ram

Himachal Pradesh HC6 Apr 2015RSA/169/2003

Case brief

AI extract

What is this about?

In a second appeal regarding a dispute over property succession, the High Court of Himachal Pradesh held that the lower appellate Court misappreciated the evidence. The Court found the disputed Will to be validly executed and attested, affirming the trial Court's dismissal of the suit filed by the deceased's sibling.

What did the court decide?

The judgment and decree of the lower appellate Court (Civil Appeal No. 31 of 1997) were quashed and set aside, while the judgment and decree of the trial Court (Civil Suit No. 117 of 1993) were affirm

Kundan Lal Vs Bali Ram — Succession and Inheritance | Himachal Pradesh HC (2015)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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RSA No. 169 of 2003.

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Judgment reserved on: 13^th March, 2015. Decided on: 6^th April, 2015.

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Kundan Lal and another …..….Appellants. Versus Sh. Bali Ram and another .......Respondents.

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Coram

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The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge. Whether approved for reporting?¹ No.

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For the appellant : Mr. G.R. Palsra, Advocate. For the respondents: Mr. Lakshay Thakur, Advocate for respondent No. 1. Respondent No. 2 ex-parte.

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------------------------------------------------------------------------------------------- Dharam Chand Chaudhary, J.

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Defendants are in second appeal before this Court,

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because learned lower appellate Court on reversal of the judgment and decree passed by the trial Court has decreed the suit for the relief of declaration to the effect that the respondent herein (plaintiff in the trial Court) Sh. Bali Ram is owner of the land in the share of his deceased brother Shukru,

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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who allegedly died intestate and that the Will Ext. D-A/PW-1/C being executed by deceased Shukru in favour of appellants (defendants No. 1 and 2 in the trial Court) and also forged and fictitious is not binding on him.

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The appeal has been admitted on the following substantial question of law:-

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Whether the findings of the Court below are dehors the evidence on record and result of mis-reading and mis-appreciation of the evidence?

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One Sh. Jawahar was the owner of the property in

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dispute. The details whereof read as follow:

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i) Gair Mumkin Kulh, comprised under khewat No. 13, Khatauni Bi, 22, Kh, No. 261 measuring 0-4-6 bigha, situate in Mohal Behal No. H.B. 485, in which Shukru deceased was joint owner in possession to the extent of 1/12^th share;

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ii) Land comprised under Khata Khatauni No. 11/17, Kh. Nos. 6 kittas measuring 4-3-8 bighas, in which Sukru deceased was joint owner in possession to the extent of 1/3^rd share.

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iii) Land comprised under Khata No. 12, Khatauni Nos. 18 to 21, khasra Nos. Kittas 22 measuring 4-3-8, 0-11-19, 4-14-10 and 2-5-4 bighas respectively;

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iv) Land under khewat No. 18, khatauni Nos. 33 to 40, Kittas 10 measuring 4-18-4 bighas;

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v) Land comprised under khata No. 17, khatauni Nos. 27 to 32, khasra Nos. kittas 61 measuring 21-9-6 bighas;

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Situate at Behl No. H.B. 485, Illaqua Fatehpur, Tehsil Thunag, District Mandi, as recorded in the copes of jamabandies for the year 1989-90, which are attached herewith.

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The owner aforesaid Sh. Jawahar left behind his widow Smt. Bindru (since dead), sons Bali Ram (plaintiff), Himmat Ram, Shukru (both dead) and defendant No. 3 Smt. Budhi Devi daughter on his death. Admittedly, suit property was to be inherited by them to the extent of 1/5 share each on the death of said Shri Jawahar. Himmat Ram, one of the co-sharer had sold the land in his share during his lifetime.

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The subject matter of dispute in the present lis is the

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land in the share of deceased Shukru. While the plaintiff claims the same to be in his ownership and possession, being the only

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natural heir of deceased Shukru, the propounders, defendants No. 1 and 2 have set up the Will Ext. D-A allegedly executed by said Shukru in their favour on 5.10.1990. Admittedly, Shukru was unmarried. According to the plaintiff during his lifetime, it is he who looked after and maintained his brother deceased Shukru. Defendants No. 1 and 2 who are sons of defendant No. 3 Smt. Budhi Devi admittedly nephews of deceased Shukru claim that it is they who used to look after Shukru during his life time and it is on being satisfied and happy with the services they rendered to him, he executed the Will Ext. D-A scribed by the Petition Writer in Tehsil Thunag in the presence of S/Sh. Jai Singh (DW-2) and Alam Chand, attesting witnesses and identifier Shri Hari Singh, Numberdar. The Will after its execution was produced before the Tehsildar, Thunag for attestation and it was duly attested by the Tehsildar in presence of Shri Hari Singh aforesaid. The suit was, therefore, sought to be dismissed.

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The parties were tried by learned trial Court on the following issues:

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Whether the plaintiff is joint owner in possession of the suit land to the extent of ¼ share out of the

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property left by deceased Jawahar, as alleged? OPP.

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Whether the ‘WILL’ No. 69 dated 5.10.1990 purported to have been executed by Shukru deceased in favour of defendant No. 1 and 2 is wrong, illegal and forged, void, faked and fictitious document, as alleged ? OPP.

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Whether Late Smt. Bindru Devi has not filed the present suit and the present plaintiff Bali Ram has no locus standi with the suit as alleged? OPD.

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Whether the suit is bad for non-furnishing of bad particulars of forgery, as alleged? OPD.

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Whether the suit is not maintainable in the present form? OPD.

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Whether the proforma defendant has 1/5^th share in the property of late Shri Jawahar, as alleged

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O.P. Proforma

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defendant

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Whether the proforma-defendant is entitled to ½ share in the property left by Smt. Bindru Devi, as alleged? O.P. Proforma-defendant

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Relief.

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On appreciation of the evidence they produced,

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learned trial Court has held the Will a legal and genuine document while answering issues No. 1 and 2 in negative i.e.

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against the plaintiff and dismissed the suit. Learned lower appellate Court in appeal has arrived at a conclusion that the execution of the Will is not proved in accordance with law and

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also that the evidence qua execution thereof contradictory in nature, the same cannot be treated to be legal and valid Will. The judgment and decree passed by the trial Court, therefore, has been reversed and the suit decreed.

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The defendants are in second appeal before this Court. They are aggrieved and dis-satisfied by the judgment and decree under challenge, hence questioned the legality and validity thereof on several grounds, however, mainly that learned lower appellate Court has failed to appreciate the evidence available on record in its right perspective and erroneously reversed the well reasoned judgment passed by the trial Court.

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Mr. G.R. Palsra, learned counsel representing the appellants-defendants has canvassed that the execution of the Will stands duly proved from the testimony of one of the attesting witness, Shri Jai Singh, DW-2 and Sh. Hari Singh, DW-3. The Will is not shrouded by suspicious circumstances and the

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findings to the contrary are neither legally nor factually sustainable.

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Mr. Lakshay Thakur, learned counsel representing the contesting respondent, Bali Ram has supported the judgment and decree under challenge in the main appeal on the grounds that the Will is not at all proved and as such the suit has rightly been decreed by the learned lower appellate Court.

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The only legal question needs adjudication in this appeal is that learned lower appellate Court has not appreciated the evidence available on record in its right perspective and such an approach has resulted in recording wrong findings and consequently in passing the judgment and decree, which is perverse. The present is a case of reversal of the judgment and decree passed by the trial Court. The legal question arises for determination, therefore, need appraisal of the given facts and circumstances and also the evidence available on record. However, before it, it is desirable to point out as to what in legal parlance are pre-requisites for execution of a legal and valid Will. A reference can be made to the

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provisions contained in Section 63 of the Indian Succession Act,

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which reads as follow:

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“ Execution of unprivileged Wills.

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Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or any airman so employed or engaged] or a mariner at sea, shall execute his Will according to the following rules:-

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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.

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(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.”

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A reference can also be made to the provisions

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contained under Section 68 of the Evidence Act, which reads as follows:

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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:

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68. Proof of execution of document required by

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law to be attested.

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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.

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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.”

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Besides, Section 30 of the Hindu Succession Act provides that any Hindu may dispose of by Will or other testamentary disposition any property, 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. Now, if the execution and attestation of the Will in question is seen in the light the above legal parameters and the evidence available on record, the defendants have produced the Will in original, which is Ext. D-A. The recital therein makes it crystal

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clear that the testator was unmarried and issueless and being looked after by his nephews (Bhanjas), defendants No. 1 and 2 during his lifetime. Even they were responsible to look after him during rest of his life time and on his death to perform last rites. He was satisfied and happy with the services being rendered by them and it is in lieu thereof, he has executed the Will bequeathing thereby his entire moveable or immoveable property. The testator has signed the Will on each and every page. The Will also bears signatures of marginal witnesses S/Sh. Jai Singh and Alam Chand. Jai Singh has identified his signatures encircled red at point ‘X’, in this document and also

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identified that of Shri Alam Chand, as according to him, said Sh. Alam Chand had also put his signatures in his presence. Shri Hari Singh, DW-3 is the Numberdar of the area, who has identified the testator and marginal witnesses at the time of execution of the Will and the testator before the Sub-Registrar, Tehsil Thunag, District Mandi when the same presented for attestation.

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Now, if coming to the oral evidence qua execution of the Will, as has come on record by way of testimony of Jai Singh (DW-2), one of the marginal witnesses and Hari Singh (DW-

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3), Numberdar, the identifier, they unequivocally and categorically stated that Shri Shukru called them and another marginal witness Sh. Alam Chand on 5.10.1990 to accompany him to Tehsil Thunag. DW-2 met him near the house adjoining to that of testator. DW-3 Hari Singh was asked to meet them at Thunag. Accordingly, DW-3 met them there. The judicial papers

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were purchased by Shukru for getting the Will reduced into writing. The testator accompanied by DW-2 and DW-3 and another marginal witness Alam Chand went to a Petition Writer in Tehsil at Thunag. As per their further version, Shukru got the Will Ext. D-A reduced into writing in their presence from the

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Petition Writer in favour of Kundan and Param Dev. The scribe after reducing the same into writing, readover and explained the contents thereof to the testator. The testator after admitting the contents there of to be true and correct had put his signatures thereon. According to DW-2, it is thereafter he and Sh. Alam Chand had put their signatures thereon. Thereafter, they went to Tehsil Thunag. It is the testator who produced the Will before the Tehsildar. On inquiry by Tehsildar from Shukru, he told that Will was executed by him in favour of Kundan and Param Dev. The testator and Numberdar (Hari Singh) both have put their signatures on the Will. The testator and the marginal witnesses were identified by Sh. Hari Singh. Not only this but DW2 has identified his own signature encircled red at point ‘X’ on the Will Ext. D-A and that of S/Sh. Alam Chand and Hari Singh, as according to him, they had also put their signatures in his presence. The testator was in sound and disposing mind and executed the Will without any kind of pressure.

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The version of DW-2 in his examination-in-chief remained unshattered even in his cross-examination also. His testimony in cross-examination that the testator had put mark of

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right thumb on the Will cannot be taken a circumstance so as to render the Will fake. Learned lower appellate Court was not justified in observing that DW-2 had not gone to the Tehsil because this witness has categorically stated in his examinationin-chief that they went to Tehsil Thunag, however, it is the testator who produced the Will for attestation before the Tehsildar. Not only this but in his cross-examination he has clarified that in the office of Tehsildar, he remained outside and it is only the testator and Hari Singh, Numberdar who went inside

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and rightly so because the marginal witness is required to sign the Will in the presence of testator at the time of its execution and not before the Sub-Registrar. As a matter of fact, as per further statement of DW-2, they all were identified before the Tehsildar by DW-3 Hari Singh, Numberdar.

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As per statement of DW-3, Hari Singh, the testator had executed the Will in favour of Kundan Lal and Param Dev in his presence. He had identified the testator before the Tehsildar and witnessed the execution of the Will also in the capacity of an identifier. He has also admitted the signatures encircled red at points ‘Y’ and ‘Z’ on the Will Ext. D-A. Shukru, according to

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him was enjoying good health at that time. Both the witnesses had gone to Tehsil at the time of presentation of the Will for attestation before the Tehsildar. DW-2 also admits the same, however, according to him he remained outside and it is the testator and DW-3, who went inside. The version of DW-2 and DW-3 and another witness Alam Chand had not signed the Will before the Tehsildar lead to the only conclusion that they were not inside. The fact, however, remains that both the marginal witnesses were very much present in the campus of Tehsil. DW-3 has further clarified that testator had put his signatures and not thumb mark. Therefore, one sentence in the cross-examination of DW-2 that he had put mark of his right thumb on the Will does not render the document as doubtful.

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The evidence as has come on record thus lead to the only conclusion that the testator and marginal witnesses and for that matter the identifier all were present before the Petition Writer at the time of execution of the Will. The testator after understanding the contents of the Will and admitting the same to be true and correct had put his signatures thereon. The marginal witnesses also signed the Will in presence of the

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testator. Not only this but DW-3 Numberdar had also signed the Will in the capacity of an identifier. The Will thereafter was presented for attestation before the Tehsildar, Thunag by the testator in the presence of DW-3. The testator was identified by DW-3 before the Tehsildar. The attestation of the Will, therefore, also stands proved in accordance with law. The will Ext. D-A, therefore, is a genuine document and not forged and fictitious. The evidence, as has come on record by way of testimony of defendant Kundan Lal (DW-1) also substantiates the execution

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of a legal and valid Will by the testator on 5.10.1990 in their favour. Even if the evidence as has come on record by way of own testimony of the plaintiff while in the witness box as PW-1 that defendants No. 1 and 2 being the son of their sister, defendant No. 3 are their nephews. Although, as per his version, it is he alone who rendered services to his brother deceased Shukru during his life time. He tells us in his cross-examination that defendant No. 1, Kundan Lal accompanied him to Haridwar at the time of death of Shukru to perform last rites. Although, it is denied that the defendants used to look after and maintain deceased Shukru, yet stated voluntarily that they use

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to come for 2-3 days serve him and then returned to their place. Also that some time they use to come on 2-3 occasions in a week and some time for 2-3 occasions in a fortnight. The own

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testimony of the plaintiff makes it crystal clear that the defendants had been rendering services to the testator during his life time. PW-2 Dhani Ram has also admitted in his crossexamination that Bali Ram (DW-1) had also performed last rites with the plaintiff at the time of death of Shukru. The evidence produced by the plaintiff, therefore, is not suggestive of that he

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used to render the services to deceased Shukru during his lifetime and on his death he alone performed last rites. Above all, no evidence has been produced by the plaintiff in rebuttal also.

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In view of what has been said hereinabove, in the considered opinion of this Court, learned lower appellate Court has mis-appreciated, mis-construed and misread the evidence available on record and erroneously reversed the well reasoned judgment and decree passed by learned trial Court on proper appreciation of the evidence available on record. The judgment and decree under challenge in the present

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appeal, therefore, is neither legally nor factually sustainable. The same, as such, deserves to be quashed and set aside. 20. For all the reasons hereinabove, this appeal succeeds and the same is accordingly allowed. Consequently, the judgment and decree passed by learned lower appellate Court in Civil Appeal No. 31 of 1997 is quashed and set aside and that by the trial Court in Civil Suit No. 117 of 1993 affirmed. No orders so as to costs.

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April 6, 2015. (Dharam Chand Chaudhary), (naveen) Judge.

Kundan Lal v. Bali Ram

Case brief

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Kundan Lal v. Bali Ram

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