Dismissed

Manoj Kumar and Ors. v. Ami Lal and Ors.

Punjab & Haryana HC18 Feb 2014RSA/2324/2013

Case brief

AI extract

What is this about?

Two connected second appeals challenging civil judgments that affirmed ownership of plaintiffs over suit property by rejecting an unregistered Will offered by the appellants. The single-bench High Court dismissed the appeals, upholding lower courts' findings that appellants failed to prove sound disposing mind and dispel suspicious circumstances regarding thumb impressions.

What did the court decide?

Both regular second appeals were dismissed with no order as to costs.

Manoj Kumar and Ors. Vs Ami Lal and Ors. — Succession and Inheritance | Punjab & Haryana HC (2014)

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RSA No. 2324 of 2013 (O&M) & RSA No. 2394 of 2013 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA No. 2324 of 2013 (O&M) Date of Decision:18.2.2014

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Manoj Kumar and another

.....Appellants.

Versus

Ami Lal and others

.....Respondents

RSA No. 2394 of 2013 (O&M)

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Manoj Kumar and others

.....Appellants.

Versus

Ami Lal and others

.....Respondents

CORAM: HON'BLE MR JUSTICE RAMESHWAR SINGH MALIK

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Present: Mr. Varun Gupta, Advocate for the appellants.

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1. To be referred to the Reporters or not?

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2. Whether the judgment should be reported in the Digest?

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RAMESHWAR SINGH MALIK J.

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Feeling aggrieved against the impugned judgments and decrees passed by both the learned courts below, whereby the suit of

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the plaintiffs-respondents for permanent injunction, was decreed, Kumar Amit 2014.05.13 13:09 I attest to the accuracy and integrity of this document

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RSA No. 2324 of 2013 (O&M) & RSA No. 2394 of 2013 (O&M)

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defendants have approached this Court by way of these two connected appeals. Since both the appeals are between the same parties, arising out of similar suits decided by common judgment, these are being decided together. However, for the facility of reference, facts are being culled out from RSA No. 2324 of 2013.

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Succinctly put, brief facts of the case are that plaintiffs filed suit for permanent injunction, claiming themselves to be owners in possession of the suit land. It was their pleaded case that defendants have prepared a forged and fabricated Will to grab the property of Harji@ Hardeva. Plaintiffs were owners of the suit property and defendants had no concern with the same. Since defendants were threatening the plaintiffs to dispossess from the suit property, they filed the present suits.

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Having been put to notice, defendants appeared and filed their written statement controverting the allegations levelled in the plaint. There was a validly executed Will in their favour and they were owners of the suit land. In the second suit, i.e. civil suit No. 45 of 2002, declaration was sought to the effect that plaintiffs were owners of the suit property. Mutation No.1209 was wrongly sanctioned. Same Will was the subject matter of dispute. Defendants filed the similar written statement with almost identical averments. Dismissal of both the suits was prayed for.

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On completion of pleadings of the parties, learned trial court framed the following issues:-

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“ 1. Whether the plaintiff is owner in

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Kumar Amit 2014.05.13 13:09 I attest to the accuracy and integrity of this document

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RSA No. 2324 of 2013 (O&M) & RSA No. 2394 of 2013 (O&M)

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possession of the suit property ?OPP

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2. Whether defendant No.3 has become owner of the suit property on the basis of Will dated 23.4.2000 executed by Harji @ Hardeva, if so its effects? OPP

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

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4. Whether the plaintiff has no locus standi to file the present suit?OPD

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5. Whether the plaintiff is estopped to file

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the present suit by his own act and conduct?OPD

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6. Relief”

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In order to prove their respective stands taken, both the parties led their documentary as well as oral evidence. After hearing both the parties and going through the evidence brought on record, learned trial court came to the conclusion that plaintiffs in suit No. 44 of 2000 have duly proved their case whereas plaintiffs in suit No. 45 of 2000 have failed to prove their case. Consequently, both the suits were decided vide impugned judgment and decree dated 19.11.2009. Feeling aggrieved, defendants filed their first appeals which also came to be dismissed by the learned Additional District Judge, Narnaul, vide impugned judgment and decree dated 29.1.2013. Hence these appeals.

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Learned counsel for the appellants submits that both the learned courts below have failed to appreciate the true facts of the

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Kumar Amit 2014.05.13 13:09 I attest to the accuracy and integrity of this document

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RSA No. 2324 of 2013 (O&M) & RSA No. 2394 of 2013 (O&M)

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case in the correct perspective, because of which both the impugned judgments and decrees were not sustainable in law. He further submits that there was sufficient and cogent evidence available on record in favour of the appellants to non suit the plaintiffsrespondents. However, since both the learned courts below fell in serious error of law, while not properly appreciating the evidence, both the impugned judgments and decrees were liable to be set aside. He prays for setting aside the impugned judgments and decrees, by allowing these appeals.

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Having heard the learned counsel for the appellants at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the contentions raised, this Court is of the considered opinion that in the given fact situation of the present case, no interference is called for at the hands of this Court, while exercising its appellate jurisdiction under Section 100 of the Code of Civil Procedure ('CPC' for short). To say so, reasons are more than one, which are being recorded hereinafter.

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A bare reading of both the impugned judgments and decrees would show that learned courts below recorded their concurrent findings, which were based on sound reasons and proper appreciation of the evidence available on record. Appellants, being the propounders of the Will, onus was on them to dispel all the suspicious circumstances of the Will. However, they failed to discharge their onus. In fact, evidence led by the defendantsappellants themselves and particularly their own witnesses have

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Kumar Amit 2014.05.13 13:09 I attest to the accuracy and integrity of this document

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RSA No. 2324 of 2013 (O&M) & RSA No. 2394 of 2013 (O&M)

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demolished their case. DW2-Ganga Ram contradicted himself to such an extent that his evidence was not at all trustworthy. Defendants could not prove the thumb impressions of testator- late Sh. Hardeva on the Will.

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It has come on record that testator-Harji @ Hardeva was not keeping good health and was unable even to move, at the time of execution of the alleged Will. The Will was unregistered. Defendants also failed to prove that testator-Harji @ Hardeva was enjoying sound disposing mind, at the time of execution of the Will. It has come on record that testator-Harji @ Hardeva was educated and had served in the Army. Defendants-appellants failed to explain as to why Hardeva put his thumb impressions and not his signatures.

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In view of the foregoing discussions, the irresistible conclusion is that defendants, who were propounders of the Will, failed to dispel the suspicious circumstances and the learned courts below rightly discarded the Will. Having said that, this Court feels no hesitation to conclude that learned courts below committed no error of law, while passing their respective impugned judgments and decrees, which deserve to be upheld.

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Before arriving at a judicious conclusion, learned Additional District Judge rightly re-appreciated the evidence available on record. In this regard, observations made in para 17 to 19 of the impugned judgment, read as under:-

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“ It has been established on the file that Hardeva deceased used to sign, but on the Will he has put his thumb impression. No doubt,

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Kumar Amit 2014.05.13 13:09 I attest to the accuracy and integrity of this document

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RSA No. 2324 of 2013 (O&M) & RSA No. 2394 of 2013 (O&M)

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applicants have examined PW5 Vijay Rastogi who submitted his report Ex.PW5/A with the opinion that the disputed thumb impression Q1 was affixed by one and the same persons Hardeva who affixed his computerized thumb impression S1 and S2 on the plaint and Vakalatnama, who would say during his cross examination. It is correct that he identified the thumb impression whether it is of left hand and right hand if they are correct at the apex ridges. The thumb impressions Q1 is of right hand and he had not mentioned this fact in his report that thumb impression Q1 was of right hand. He does not know who has written word LTI on thumb impressions Q1 and that word LTI is written on thumb impression Q1 and S1 and S23. He had not taken the thumb impression from replication and statement made before the court on 10.3.1998 in case File No. 314 of 19.12.1995.

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It is not out of place to mention that appellants have failed to explain, when Harji @ Hardeva use to sign, however, have put his thumb impression and why the thumb impression of right hand was put through written as LTI

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The Will is no doubt optionally registrable. But in these facts and circumstances, when an Advocate, a legal person was scribing the Will, it cannot be assumed that the legal person would have not advised the propounder to get the Will registered with the office of Sub Registrar. Since the village Budhwal where the Will was scribed is in the nearby Tehsil, Narnaual to avoid the future litigation. The appellants have lost battle before the revenue authorities in the matter of sanction of mutation, as has been crystal clear from evidence

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Kumar Amit 2014.05.13 13:09 I attest to the accuracy and integrity of this document

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RSA No. 2324 of 2013 (O&M) & RSA No. 2394 of 2013 (O&M)

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of the applicants themselves, meaning thereby, the order of Commissioner dated 18.7.2009 had attained the finality. There is no explanation in the Will to deprive Surji, real sister of the deceased from the agricultural property of the deceased. Tek Chand and Ganga Ram are the attesting witnesses of the Will have been examined by the applicants. There is no evidence on the file to prove this fact deceased Harji@ Hardeva was sound disposing state of mind at the time of execution of the Will since it has been surfaced in the evidence of the appellants that at the time of execution of the Will the deceased was ill”

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The abovesaid findings recorded by the learned Additional District Judge, cannot be said to be based either on any illegality or perversity, which may warrant interference at the hands of this Court. In fact, both the learned courts below have recorded convincing and well reasoned findings, which have been found based on correct appreciation of facts and law. In this view of the matter, it is unhesitatingly held that plaintiffs were rightly found entitled for the decree. Thus, both the impugned judgments deserve to be upheld, for this reason also.

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During the course of hearing, learned counsel for the appellants failed to point out any patent illegality or perversity apparent on the record of the case, in either of the impugned judgments passed by the learned courts below. He also failed to put into service any substantive argument, so as to convince this Court to take a different view than the one taken by the learned trial court

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Kumar Amit 2014.05.13 13:09 I attest to the accuracy and integrity of this document

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RSA No. 2324 of 2013 (O&M) & RSA No. 2394 of 2013 (O&M)

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as well as learned first appellate court. Further, no question of law much less substantial question of law has been found involved in the present case, which is sine qua non for interference at the hands of this Court, in exercise of its appellate jurisdiction under Section 100 CPC. In this view of the matter, it is held that learned courts below arrived at a judicious conclusion and the impugned judgments and decrees deserve to be upheld, for this reason as well.

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No other argument was raised.

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Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that both these appeals are misconcieved, bereft of merit and without any substance, thus, these must fail. No case for interference has been made.

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Resultantly, both the regular second appeals stand dismissed, however, with no order as to costs.

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(RAMESHWAR SINGH MALIK) JUDGE

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18.2.2014 Ak Sharma

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Kumar Amit 2014.05.13 13:09 I attest to the accuracy and integrity of this document

Manoj Kumar and Ors. v. Ami Lal and Ors.

Case brief

What is this about?

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Manoj Kumar and Ors. v. Ami Lal and Ors.

Case brief

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