A Will excluding the testator’s wife and children was challenged as invalid. The Court upheld its invalidation on suspicious circumstances, including the use of a thumb mark, and dismissed the second appeal. Parties were left to bear their own costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No.130 of 2006. Reserved on : 26.07.2017. Decided on: 21.08.2017. Kamla Devi (Deceased) through her LRs’ & ors. ...Appellants. Versus Sheela Devi & ors. …Respondents.
Coram
The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge. Whether approved for reporting?1 Yes.
For the appellants : Mr. K.D. Sood, Sr. Advocate with Mr. Rajnish K. Lal, Advocate. For the respondents : Mr. O.C. Sharma, Advocate.
Chander Bhusan Barowalia, Judge.
By way of the present appeal, the appellants have challenged the judgment and decree passed by the Court of learned Additional District Judge, (Presiding Officer, Fast Track Court, Solan, District Solan, (H.P), in Case No.14FT/13 of 2005/2004, dated 2.12.2005, affirming the judgment and decree passed by the learned Civil Judge (Junior Division), Solan, District Solan, (H.P) in Civil Suit No.28/1 of 2004/97, dated 30.6.2004.
1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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measuring 39-18 bighas to the extent of 1/8th share, situated in Mauza Annu, Tehsil and District Solan, (H.P) (hereinafter referred to as the ‘suit land’) was owned and possessed by Gullu Ram son of Sant Ram, who was husband of plaintiff, namely, Sheela Devi. They have claimed that Gullu Ram, died on 10.11.1996, leaving behind the plaintiffs, as his heirs and successors. Therefore, on the basis of natural succession, they are entitled to inherit his estate. However, defendant (Smt.Kamla Devi), who is sister of deceased Gullu Ram, got the suit land mutated in her favour, vide mutation No.97, dated 16.5.1997, on the basis of some Will alleged to have been executed by the deceased on 20.10.1997. According to the plaintiff, Gullu Ram, died intestate and he never executed any Will and therefore, mutation No.97, dated 16.5.1997, is totally wrong, illegal, null and void and not binding upon the right, title or interest of the plaintiffs.
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Ram, had executed a legal and valid Will, dated 20.10.1996 in her favour. The defendant has further pleaded that on the basis of Will, dated 20.10.1996, she has become owner-in-possession of the suit land
and as such, mutation No.97, dated 16.5.1997 is legal and valid.
2. Whether the Will dated 20.10.1996 is totally wrong, illegal, null and void abinitio and not binding on the right, title or interest of the plaintiffs, as alleged ? OPP.
3. Whether the mutation No.97 sanctioned on 16.5.1997 in favour of the defendant on the basis of Will dated 20.10.1996 is wrong, null and void as alleged ? OPP.
4. Whether the plaintiff is entitled for a decree of possession of the suit land ? OPP.
5. Whether the plaintiffs have not come to this Court with clean hands and have suppressed material facts, as alleged ? OPD.
6. Whether the plaintiffs are estopped by their acts, conducts, deeds and acquiescences from filing the present suit as alleged ? OPD.
7. Relief.
appeal before the learned lower Appellate Court assailing the findings of
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learned Trial Court below being against the law and without appreciating the evidence and pleading of the parties to its true perspective. The learned lower Appellate Court affirmed the findings of the learned Trial Court and dismissed the appeal. Now, the appellants have maintained the present Regular Second Appeal, which was admitted for hearing on 27.3.2006 on the following substantial question
of law:
“Whether the Courts below erred in invalidating the Will on the premise that the Will has been thumb marked?”
behalf of the plaintiffs has argued that the learned Courts below have failed to take into consideration that the Will is always executed to disinherit the legal heirs only and the learned Courts below have also failed to take into consideration that the Will was proved to be a genuine document. On the other hand, Mr. O.C. Sharma, learned counsel appearing on behalf of the defendants, has vehemently argued that Will was not a genuine document. He has further argued that when Gullu Ram, used to sign, read, write and to maintain the accounts of his shop, as per the evidence, which has come on record, depicts that there was no occasion for Gullu Ram, to put his thumb impression. He has further argued that the Will is required to be set aside, as a forged document and has rightly been set aside by the
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learned Courts below. There is no substantial question of law involved in the present appeal and the present appeal deserves to be dismissed.
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executed by Gullu Ram in his presence. DW-1 Varinder Kumar, General Power of Attorney of the defendant has deposed that his mother (Kamla Devi) met with an accident and she could not recover from the injuries completely. He has further stated that plaintiff Sheela Devi, was living with her uncle, as a wife, but there was no legal and valid marriage. In his cross-examination, he has stated that the testator himself used to maintain the accounts of his shop. DW-2 Tara Singh has deposed that he had scribed the Will, at the instance of deceased Gullu Ram and after scribing the same, he had read over its contents to the deceased testator, who after admitting its contents, put his thumb mark on the same, in the presence of attesting witnesses, who also signed and put their thumb impression in the presence of testator. DW-4 Chaman Lal, one of the attesting witness of the Will, has also testified about the execution of Will, in his presence by the deceased testator. Though, the propounder has examined the witnesses to prove the execution of Will, however the suspicious circumstances, which surrounded the Will and has come on record are required to be considered and appreciated. In the alleged Will, the testator has excluded his wife and children without any reason. The explanation given by the defendant is that plaintiff No.1, was not a legally wedded wife of deceased testator and there was only live in relationship between them. Plaintiff No.1 alongwith her
children, deserted the testator 11-12 years prior to his death and their whereabouts were not known to the testator and during this period, he
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was being looked after by the defendant, being his real sister. However, the stand taken up by the defendant during evidence that plaintiff No.1, was not the legally wedded wife of deceased testator is beyond her pleadings and as such, the same cannot be accepted. Even in the Will, which has been propounded by the defendant the status of plaintiff No.1, as wife of the deceased testator has been admitted. In the Panchayat record, plaintiff No.1 is recorded, as wife of the deceased testator and plaintiff No.2 and 3, as his children. Therefore, the contention of the defendant that plaintiff No.1, was not a legally wedded wife of the deceased testator cannot be accepted. So far as the allegations of desertion are concerned, it may be seen that the defendant has alleged that plaintiff No.1 had deserted the deceased 1112 years prior to his death. PW-1, Sheela Devi, has specifically denied these allegations while deposing in the witness box. She has produced copy of Pariwar register Ex.P-3, maintained by the Gram Panchayat, Shamror, which has been duly proved on record by PW-3 Hari Dass. Therefore, in view of the entries in the Pariwar register, it is proved on record that plaintiff No.1 was living with the deceased testator in or about the year 1992.
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on the document. From the perusal of document Ex.D-2 (Will), even otherwise depicts that one of the attesting witness, who has put his thumb impression on the Will i.e. Ganesh, on the same day and at the same time, his name and address are written by a different ink and in different handwriting. Why another person has written the name and address of the witness, when the witness has put his thumb impression, also creates suspicion on the genuineness of the Will.
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and address of Ganesh, who was the attesting witness of the Will, was written in different ink, which seems to be a different handwriting. 12. Hon’ble High Court of Himachal Pradesh rendered in Hira
Lal vs. Maya Ram and others, decided on 2nd June, 2011 , has held in the similar circumstances that the Will is a suspicious document. In another case 2017 (2) Civil Court Cases 805 (Delhi) titled Harbhajan Singh vs. Kuldeep Singh & Ors , it has been held in para-
15 of the judgment, as under :
“There are a catena of decisions by the Privy Council, the Supreme Court and several High Courts, where it has been held that ordinarily, it is the duty of the party to lead the best evidence in his possession, which could throw light on the issue in controversy and if such material evidence is withheld, the Court is entitled to draw an adverse inference under Section 114 (g) of the Evidence Act. It is also a settled legal position that when a party to the suit does not appear in the witness box and state his own case on oath and does not suffer himself to be cross-examined by the other side, a presumption shall arise that the case set up by him is not correct and this shall give rise to an adverse inference against him. (Refer: (i) Murugesam Pillai vs. Gnana Sambandha Pandara Sannadhi, AIR 1917 PC 6 (ii) Sardar Gurbaksh Singh vs. Gurdial Singh and Anr. AIR 1927 PC 230 (iii) Kirpa Singh vs. Ajaipal Singh and ors; AIR 1930 Lah; 1 (iv) Martand Pandharinath Chaudhari vs. Radhabai Krishnarao Deshmukh, 1930 (32) BOMLR 924, (v) A. Raghavamma and Anr. vs. A. Chenchamma and Anr. AIR 1964 SC 136 (vi) Gulla Kharagjit Carpenter vs. Narsingh
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Nandkishore Rawat, AIR 1970 MP 225 (vii) Arjun Singh vs. Virender Nath and Anr; AIR 1971 All 29 (viii) Bhagwan Dass vs. Bhishan Chand and Ors. AIR 1974 P & H 7 (ix) Musauddin Ahmed vs. State of Assam, 2009 (3) Criminal Court Cases 848 (S.C) : AIR 2010 SC 3813 (x) Khatri Hotels Pvt. Ltd and Anr. vs. UOI and Anr. 2012 (1) Civil Court Cases 332 (S.C) :2012 (1) Apex Court Judgments 204 (S.C) : 2011 (9) SCC 126 and (xi) Union of India vs. Ibrahim Uddin and Anr. 2012 (3) Civil Court Cases 577 (S.C) : 2012 (3) Apex Court Judgments 137 (S.C) : 2012 (8) SCC 148.) ”
In the present case, only the defendant, (Kamla Devi) who would have explained with regard to the strained relation of the plaintiff, Smt. Sheela Devi, as wife of Gullu Ram and her failure to appear in the Court, an adverse inference is required to be drawn against her, as the plaintiff was not having any occasion to crossexamine her with respect to the allegations, which she has leveled in the written statement.
Anjum Jehan & Ors, it has been held in para-13 of the judgment as under :
“13. It is a settled legal proposition that the power of attorney holder cannot depose in place of the principal. Provisions of Order III, Rules 1 and 2 CPC empower the holder of the power of attorney to “act” on behalf of the principal. The word “acts” employed therein is confined only to
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“acts” done by the power of attorney holder, in exercise of the power granted to him by virtue of the instrument. The term “acts” would not include deposing in place and instead of the principal. In other words, if the power- of-attorney holder has preferred any “acts” in pursuance of the power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for acts done by the principal, and not by him. Similarly, he cannot depose for the principal in respect of a matter, as regards which, only the principal can have personal knowledge and in respect of which, the principal is entitled to be cross-examined. (See: Vidhyadhar v. Manikrao & Anr. 1999 (2) Civil Court Cases 91 (S.C) : 1999 (1) Apex Court Journal 438 (S.C) : AIR 1999 SC 1441 ; Janki Vashdeo Bhojwani vs. Indusind Bank Ltd; 2005 (2) Civil Court Cases 324 (S.C) : 2005 (2) SCC 217; M/s Shankar Finance and Investment v. State of A.P & Ors; 2008 (3) Apex Court Judgments 003 (S.C) : 2008 (3) Civil Court Cases 586 (S.C) : 2008 (3) Criminal Court Cases 975 (S.C) : AIR 2009 SC 422; and Man Kaur v. Hartar Singh Sangha 2010 (4) Civil Court Cases 792 (S.C) : 2010 (3) Apex Court Judgments 756 (S.C) : 2010 (1) SCC 512).”
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Will, as there were many suspicious circumstances surrounding the Will, including that it was thumb marked document, when it has come on record that Gullu Ram, used to maintain the accounts of his cloth shop and it is expected that he might be knowing, how to sign the documents, so the in invalidating of the Will, as it was a thumb marked coupled with other suspicious circumstances, which has come on record, this Court finds that the learned Courts below have committed no illegality.
(Chander Bhusan Barowalia)
21st August, 2017 Judge (CS)
2 issues framed by the court
Did the courts below err in invalidating the thumb-marked Will in light of the other suspicious circumstances surrounding it?
Should an adverse inference be drawn against the propounder for not testifying about matters within her personal knowledge?
Colour shows how this judgement treated each authority
Hira Lal vs. Maya Ram and othersRelied on¶48
Hira Lal vs. Maya Ram and others, decided on 2nd June, 2011
Harbhajan Singh vs. Kuldeep Singh & OrsApplied¶48
2017 (2) Civil Court Cases 805 (Delhi) titled Harbhajan Singh vs. Kuldeep Singh & Ors
S. Kesari Hanuman Goud vs. Anjum Jehan & OrsRelied on¶54
2014 (2) Civil Court Cases 125 (S.C) titled S. Kesari Hanuman Goud vs. Anjum Jehan & Ors
Kamla Devi (Deceased) through her LRs’
Sheela Devi
Chander Bhusan Barowalia
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
