Allowed

Sarla Kumari v. Dumnu Devi

Himachal Pradesh HC16 Aug 2017RSA/93/2005

Case brief

AI extract

What is this about?

In this regular second appeal, the High Court of Himachal Pradesh allowed the appeal, set aside the Lower Appellate Court's decree upholding a will, and restored the Trial Court's judgment. The Court held the will executed by the deceased in favor of his daughter was genuine and valid, rejecting claims of coercion or incompetence.

What did the court decide?

The Lower Appellate Court judgment set aside; Trial Court judgment and decree restored; parties to bear own costs.

Sarla Kumari Vs Dumnu Devi — Succession and Inheritance | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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RSA No.93 of 2005 Reserved on : 25.7.2017 Date of decision: 16.8.2017

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Sarla Kumari ... Appellant

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Versus

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Narla and others ...Respondents.

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Coram:

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The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. 1 Whether approved for reporting? Yes.

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For the appellant: Mr. Bhupinder Gupta, Senior Advocate with Mr. Neeraj Gupta, Advocate. For the respondents: Mr. Anand Sharma, Advocate.

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Chander Bhusan Barowalia, Judge.

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The present Regular Second Appeal is maintained by the appellant, Sarla Kumari against the judgment and decree, dated 14.12.2004, passed by the learned Additional District Judge (Fast Track Court) Chamba, H.P., in Civil Appeal No.50/04/03, whereby learned Lower Appellate Court, has set aside the judgment and decree, dated 14.3.2003, passed by the then learned Senior Sub Judge, Chamba, H.P., in Civil Suit No.59/2000.

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

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Briefly stating the facts giving rise to the present appeal are that the plaintiffs/respondents (hereinafter called as “the plaintiffs”) maintained a Civil Suit challenging the Will (Ext.DW2/A), executed by Gian Singh, husband of plaintiff No.1 and father of plaintiffs No.2 to 4, defendant No.1 and Proforma Defendant No.2. As per the plaintiff, the Will executed by one Gian Singh, on 1^st March, 1999, is illegal, in-operative and having no effect, on the rights of the plaintiffs. As per the plaintiff, Gian Singh was addicted to liquor and taking advantage of this fact and absence of Smt. Dumnu Devi, plaintiff No.1, while she was away to Kangra for her Eye Operation, for some days, defendant No.1(Sarla) in the absence of Dumnu Devi got the Will executed in her favour on 01.03.1999 qua the suit property owned and possessed by Gian Singh depriving the plaintiffs and proforma defendant from succeding to his property. As per the plaintiff, Gian Singh died on 06.04.2002. Deceased Gian Singh was not fit to execute the Will . The Will, in question, is surrounded by suspicious circumstances, so, it be declared as illegal, null, void and in-operative.

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Defendant No.1 filed written statement and

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contested the suit taking preliminary objections of maintainability, cause of action and estopple. So far as the relationship between the parties is concerned, that remains undisputed. However, as per the defendant (hereinafter referred as “the appellant”), she is one of the daughter of Gian Singh (deceased). Gian Singh was in old age, but was of sound disposing mind. It has been alleged that Gian Singh was not having good relations with plaintiff No.1 (Dumnu Devi) and plaintiff No.1 was not looking after him and he had to be looked after by defendant No.1. It has also been alleged that Gian Singh, out of love and affection, had executed the Will in the presence of witnesses, in his sound disposing mind and that the Will, in question, is a legal document and she has got every right to succeed to the estate left by Gian Singh, as per the Will.

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The proforma defendant did not contest the suit and after service she was proceeded against ex parte. 5. On the pleadings of the parties, the learned Trial Court framed the following issues:

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“1. Whether the Will dated March 01, 1999, executed by late Shri Gian

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Singh is illegal, forged and a fabricated document and is therefore, inoperative qua the rights of the plaintiffs and proforma defendant?

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... OPP

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2. Whether the plaintiffs have no cause of action?

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...OPD

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

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... OPD

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4. Whether the plaintiffs are estopped from filing the suit by their act and conduct?

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...OPD

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5. Relief.”

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The learned Trial Court decided Issue No.1 in

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negative and Issues No.2 to 4 in affirmative and dismissed the suit. The plaintiff maintained the appeal before the learned Lower Appellate Court, which was allowed by the learned Lower Appellate Court and after setting aside the judgment and decree, passed by the learned Trial Court, the suit of the plaintiff was decreed holding Will , Ext.DW2/A, dated 01.03.1999, as illegal, null and void. Defendant No.1, now the appellant, maintains the present Regular Second Appeal, which was admitted on the following substantial questions of

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law:-

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“1. Whether the Lower Appellate Court committed grave error of law and jurisdiction in holding that late Shri Gian Singh was incompetent to transfer the land which was held by him as a tenant, by misreading the facts and misapplying the relevant provisions of the H.P. Tenancy and Land Reforms Act and the Rules and also ignoring the pronouncements of this Hon’ble Court?

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2. Whether the Lower Appellate Court has acted with material illegality and irregularity in wrongly recording the findings that the property held by late Shri Gian Singh was not strictly the self-acquired property? Are not such findings contrary to the facts and law and also in excess of the jurisdiction?

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3. Whether the Lower Appellate Court has committed grave error of jurisdiction in granting a decree for permanent prohibitory injunction by ignoring the factum of dismissal of the earlier suit filed by the Plaintiffs for the same relief between the same parties?”

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Heard the learned counsel for the parties.

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The learned Senior Counsel appearing for the

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defendant/appellant has vehemently argued that the

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learned Lower Appellate Court has failed to consider the

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fact that the Will was a genuine document, executed by

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Gian Singh, in his full senses and without any coercion. He has argued that the learned Appellate Court has failed to take into consideration the fact that the wife was discriminated as there was already litigation pending inter se Gian Singh and his wife(the mother of the other plaintiffs and defendant No.1, Sarla and performa defendant) and the findings of the learned Lower Appellate Court are perverse.

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On the other hand, Shri Anand Sharma, learned counsel for the respondents, has argued that the judgment and decree passed by the learned Lower Appellate Court, is just, reasoned and after appreciating the facts, which have come on record to its true perspective and the same needs no interference.

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To appreciate the arguments of the learned counsel for the parties, I have gone through the record of the case, in detail.

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PW1, Dumnu Devi has deposed that from Gian Singh, she has six children and five are alive. The daughters have already been married. As per this witness, she was living for some time at Chowari, District Chamba, H.P., which is a place near to Kangra

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after getting her eyes operated at Kangra. The

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defendant taking advantage of her absence, made her husband Gian Singh to take liquor day and night and got the Will executed in her favour. She claims herself to be in possession of the property. She has further deposed that she maintained a civil suit against her husband and

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Sarla. She has deposed that after her marriage with Gian Singh, he used to take liquor regularly. After retirement, he was getting pension. It has been deposed that the hands of Gian Singh used to tremble on account of drinking excessive liquor. All the daughters have been married including defendant Sarla, who was married nearby to their village, whereas the other daughters had

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been married at distant places. She has also deposed that the marriage(s) of the daughters were conducted by deceased Gian Singh and at the time of his death, he was getting pension having remained a Government servant.

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PW2, Ram Lal has deposed that the plaintiff is in possession of the suit land. He deposed that Gian Singh and plaintiff No.1 had their separate Orchards. Krishna Mahajan, while appearing as PW3, deposed that earlier the plaintiff and Gian Singh used to live together,

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but in the year 1999, when plaintiff Dumnu Devi, left for her eyes operation, Gian Singh started living with his daughter Sarla (defendant). Thereafter, the plaintiff made complaint that her husband Gian Singh is not living with her, than she went to the spot alongwith Dumnu Devi and found that Gian Singh during day time had taken liquor and he refused to accompany his wife. She has stated that the house of Gian Singh and his land is in possession of Dumnu Devi (plaintiff). Defendant No.1, Sarla, has appeared as DW1 and deposed that she is living in her matrimonial house at Sulana and parental house of Dumnu Devi, is also in the same village and she also resides in that village. She has stated that for getting her eye checked, Dumnu Devi left for Kangra and before that Dumnu Devi and Gian Sigh were living together. She has stated that her father Gian Singh, executed a Will , in her favour when Dumnu Devi was away. When this Will was executed, Gian Singh was putting up in her house. She has further stated that thereafter, her mother was not treating her father properly and her father died in her house. She has stated that Gian Singh (father) was a Document

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Writer and the suit land also includes the Nautor land. In her cross-examination, she has denied the suggestion that she accompanied Gian Singh to the office of Tehsildar at the time of execution of the Will. She also denied the suggestion that Gian Singh, her father has also got some land by way of Will from his maternal Aunt, i.e. the mother of plaintiff No.1, who died three years ago. She admitted that she is working in Anganbadi since the year 1996. She has denied the suggestion that she used to keep Gian Singh under the influence of liquor and made him to execute the Will in her favour. As per DW1, Sarla, her father executed a Will in her favour and that her mother and father developed strained relations.

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Barkat Ali, has appeared as DW2 and deposed that Gian Singh was working as Reader in the office of Tehsildar and after retirement, he started the work of Document Writer. He has stated that at the time of execution of the Will, he, alongwith Allabakas, Kamaljeet, Devi Ram and Gian Singh were present. The Will was got scribed from Devi Ram and Gian Singh. At the time of execution of the Will (Ext.DW2/A), Gian

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Singh was of sound disposing mind and he put his signatures on the Will and PW2 put his signatures as an identifier. He further stated that Bhagat Ram and Devi Ram used to sit in a Shed and Devi Ram was not having a licence to write document. He denied the suggestion that no valid Will was executed and that he is making a false statement. He further stated that the Will was executed in his presence. He has shown his ignorance with respect to habit of Gian Singh remaining under intoxication, but stated that Gian Singh never took liquor in his presence. Devi Ram (DW3) scribe of the Will, has stated that he scribed the Will at the instance of Gian Singh, in the presence of Barkat Ali, Allabakas and Kamaljeet. The Will was read over to Gian Singh, who after admitting it as correct, put his signatures. He has stated that Kamaljeet and Allabakas also put their signatures, as attesting witnesses. He has admitted that he is not a licenced document writer. He has also deposed that Allabakas was present while the Will was being scribed. He has specifically denied the suggestion that at the time of execution of the Will, Gian Singh was under the influence of liquor. He has stated that Gian Singh did

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not disclose him with respect to his wife. He has admitted that Gian Singh also used to work as a Document Writer. Further stated that during those days, Gian Singh used to tremble and so, he has not written the Will on his own. He admitted that during those days Dumnu Devi wife of Gian Singh, plaintiff was operated at Kangra for her eyes. He has stated that Kamaljeet is one of the attesting witness. He further stated that he, alongwith Allabakas put their signatures on the Will . At that time, Gian Singh was in sound disposing mind. He has stated that he had gone to Tehsil Office at that time for getting Himachali Certificate. He has also stated that he was in visiting terms with the husband of Sarla. As per this witness, Will , Ex.DW2/A was scribed by Gian Singh in sound disposing mind. He has stated that the Will was scribed in favour of Sarla, as all the other daughters are well settled and Sarla is not well settled. He has further stated that Sarla was attending upon Gian Singh and out of love and affection the Will was executed by Gian Singh in favour of his daughter Sarla. 14. From this evidence on record, it is clear that the Will, in question, was proved to be executed by Gian

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Singh in favour of defendant No.1, Sarla. It is proved by the executants by producing the attesting witnesses and scribe.

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As far as the exclusion of the wife is concerned, though there is no mention in the Will , but as per the statement of PW2 Ram Lal, plaintiff No.1, i.e. Dumnu Devi wife of Gian Sijngh, was having independent separate Orchard. Meaning thereby Dumnu Devi, (plaintiff No.1), was having independent source of income. It has been mentioned in the Will that all the daughters other than Sarla, are well settled and from the evidence, which has come on record, it is also clear that all other daughters are well settled in their life. It has also come on record that Sarla was serving/looking after Gian Singh during his old age and she is residing in the village and all other daughters are residing at other places in connection with their jobs or matrimonial obligations and they are otherwise well settled than Sarla,defendant No.1.

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DW3, Devi Ram has specifically stated that the Will was scribed at the instance of Gian Singh and in

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the presence of Allabakas, Kamaljeet and Barkat Ali. This witness has specifically stated that Gian Singh was in sound disposing mind.

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Now, the factum with regard to the exclusion

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of wife and other daughters from the Will is abundantly clear. It is also clear from the record that plaintiff No.1, Dumnu Devi, had litigation with Gian Singh, her husband, which was initiated by plaintiff, Dumnu Devi against her husband Gian Singh and that civil suit was registered as Civil Suit No.72 of 1999, titled as Dumnu Devi versus Man Singh and others . In that civil suit, Gian Singh has deposed that his wife has a separate house/Orchard measuring 4-7 bighas. This shows that Gian Singh was not having good terms with his wife Dumnu Devi. At the same point of time, the Will seems to have been executed by Gian Singh to compensate his daughter Sarla, who was not well settled in comparison to the plaintiffs and for the services rendered by Sarla to her father Gian Singh, during the time, he needed the attention and care of his near and dear ones. It has come on record that at that time, other defendants were not attending upon Gian Singh. It has come on record

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that Gian Singh died in the house of Sarla. From the record, it cannot be inferred that Gian Singh used to remain so much under the influence of liquor that he could not understand that he is making Will in favour of his daughter. The marginal witness and scribe of the Will have stated that the Will was executed by Gian Singh in sound disposing mind and he put his signatures on it in the presence of witnesses. In these circumstances, the Will is valid. One of the attesting witness, scribe and the person, who identified the writer, were examined and they proved the Will to be a genuine document.

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While appearing as DW1 in Civil Suit No72 of 1999, titled Dumnu Devi versus Man Singh , husband of Plaintiff No.1 and the father of the defendant, Sarla, Gian Singh has deposed that he has executed a Will in favour of Sarla. ßeSaus ljyk ds uke ofl;r dj nh gS kÞ

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The learned counsel for the respondent has further argued that it was a Nautor land, the transfer of which was barred for a specific period, but this Court finds that the Will is not a transfer in the manner, which is prohibited. So, it cannot be said that the Will, in

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question, makes such a transfer, which affects the Nautor Rules and further Will was in favour of one of the heir of the executant, who was otherwise also entitled to inherit the estate of Gian Singh whether Nautor or not.

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The learned counsel for the respondents has relied upon a judgment rendered in a case titled Kalyan Singh versus Smt. Chhoti and others , AIR 1990

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Supreme Court, 396, wherein it has been held:

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“20. It has been said almost too frequently to require repetition that a will is one of the most solemn documents known to law. The executant of the will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity of the will. It must be stated that the factum of execution and validity of the will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth from falsehood the court is not confined only to their testimony and demeanour. It would be open to the court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party .”

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However, this judgment is not applicable in

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the facts and circumstances of the present case, as the defendant has proved the Will to be a genuine document, as stated hereinabove.

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The learned counsel for the respondents has also relied upon a judgment rendered in Ram Dai versus Mahi Dass, 2014 (3) Him.L.R.1368, wherein it has been held that mere registration of the Will is not sufficient to prove the execution of Will. This judgment is also not applicable to the facts of the present case, as in the present case, the Will is not only registered, but the beneficiary has proved the Will to be a genuine document by examining the identifier, attesting witness, scribe and also by producing the statement of Gian Singh, who executed the Will.

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From the aforesaid discussion, it is clear that the Will, in question, executed by Gian Singh in favour of his daughter Sarla for the reason that she was not well settled, as other daughters were and she was serving/looking after Gian Singh during his last days. The Will is also proved on record and the statement of Gian Singh in Civil Suit No.72 of 1999 to this effect that

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he has executed a Will in favour of Sarla in a Court of

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law, all goes to show that the Will was a genuine document.

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So, the substantial questions of law No.1, 2 and 3, on which the appeal was admitted, are answered as under:-

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The first substantial question of law answered holding that the learned Lower Appellate Court has committed a grave error of law and jurisdiction holding that Gian Singh was incompetent to transfer the land. The Will in favour of Sarla, his daughter, who was otherwise also entitled to inherit him after his death qua the suit land. So, the Will cannot be said to be a transfer in the strict sense of transfer, which prohibits the Nautor land to be transferred within a stipulated time. Otherwise also, it is not proved on record, whether the transfer on the basis of Will was within prohibited stipulated time and so in this way also, the findings of the learned Lower Appellate Court are said to be perverse.

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The second substantial question of law is answered holding that the property acquired by Gian Singh, was his self-acquired property, i.e. received by him by way of Will and/or by way of grant by the Government, as Nautor land. So, the findings of the learned Lower Appellate Court holding that the property is not self-acquired

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property, are wrong.

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The third substantial question of law answered by holding that the findings of learned Lower Appellate Court are wrong, as it committed grave error of jurisdiction in granting a decree for permanent prohibitory injunction and thus findings are perverse, as those are against the facts and evidence and rather a result of complete misreading of evidence, which has come on record.

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The net result of the above discussion is that

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the appeal maintained by the appellant is required to be allowed and is accordingly allowed and the judgment of the learned Lower Appellate Court is set aside and the judgment and decree passed by the learned Trial Court is restored.

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Taking into consideration the relation

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inter se the parties, this Court finds that the present is a fit case where the parties are left to bear their own costs.

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Pending application(s), if any, also stands

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disposed of.

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(Chander Bhusan Barowalia) Judge

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August 16,2017. (M. gandhi)

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Sarla Kumari v. Dumnu Devi

Case brief

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Sarla Kumari v. Dumnu Devi

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