Daughter challenged a Will bequeathing her father Janardhan Dass's entire estate to his nephew, alleging suspicious circumstances including thumb impression despite education. Courts below upheld the Will; the High Court found no perversity and dismissed both connected second appeals.
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[108] IN THE HIGH COURT OF P UNJAB AND HARYANA AT CHANDIG A RH
[1] RSA-225 7 -1994 (O&M) Date of D ecision : 14.08.2024 Shama S h arma …Appellant versus Mahavir S ingh and others ….Respondents [2] RSA-689 - 2004 (O&M) Shama S h arma …Appellant versus
Mahavir S ingh and others ….Respondents
Coram : HON’BLE MR. JUSTICE PANKAJ JAIN
Present: Mr. Aditya Jain, Advocate a n d Mr. Rahul Vohra, Advocate for the appellant(s).
Mr. Rajinder Goel, Advocat e with Mr. Munish Jolly, Advocate for respondent No.1.
PANKAJ JAIN, J. (ORAL)
[1] These two appeals arise out of different suits but involving the same pro p erty. The appellant in both th e appeals is daughter of Janard h an Dass, fig h ting for her share in the estate l e ft by Janardhan Dass.
[2] Appeal bearing RSA No.22 5 7 of 1994 has arisen out of C ivil Suit No.512 of 1986 titled as ‘ Smt. Shama Sharma versus Mahabir Singh and others ’. In the said suit, Will of Janardhan Dass dated 17.08.1 9 84 propoun d ed by defendant No.1-Mahavir S ingh is in issue.
RSA-225 7 -1994 & RSA-689-2004 -2-
[3] In RSA-689-2004, decree p a ssed in Civil Suit No.380 of 1 9 83 titled as ‘ Mahavir Singh versu Janardhan Dass ’ passed on 10.08.1 9 83 whereby, Janardhan Dass transferred his entire estate in favour of Mah a vir Singh-de f endant No.1, which is in issue. [4] Counsel for the parties agre e that Janardhan Dass having d i ed, the appe a l bearing RSA-2257-1994 be decided as the same shall h ave bearing o n the other RSA i.e. RSA-689-2004. If Will is held to be valid, the other RS A shall become inconsequential.
[5] Plaintiff filed a suit, seekin g declaration to the effect that she along wi t h defendant Nos.2 to 7 are t he only LRs of Janardhan D ass (decease d ) and are entitled to re c eive compensation amount of Rs.69,18 5 .95/- in equal shares notwithst a nding Succession Certificate d a ted 21.04.19 8 6 obtained by defendant No.1. Plaintiff further sought decre e of permane n t injunction seeking restrain ag a inst defendant No.1 from recei v ing the afore s aid compensation. Pleaded ca s e of the plaintiff is that she al o ng with def e ndant Nos.3 to 7 are daugh t ers of deceased-Janardhan D a ss. Defenda n t No.2 is widow of Janardhan D ass. They are the only survi v ing LRs of d e ceased Janardhan Dass. Howe v er, Defendant No.1 on the basi s of a Will all e ged to have been executed by Janardhan Dass managed to obta i n a Successi o n Certificate. Janardhan D ass never executed Will d a ted 17.08.19 8 4 propounded by Defendant N o.1. It was further pleaded t hat Defenda n t Nos.2 to 7 are colluding with D efendant No.1 to defeat the rig h t
RSA-225 7 -1994 & RSA-689-2004 -3-
and inter e st of plaintiff.
[6] Suit was contested by de f endants. Defendant No.1 f i led separate w ritten statement, controvertin g all assertions made in the pl a int. Defenda n t No.1 claimed that he has obt a ined a valid Succession Certifi c ate from the Court of competent jurisdict i on on the basis of a valid W ill executed by Janardhan Dass on 17.08.19 8 4. Janardhan Dass was not ha v ing any male child. Defendant No.1 along with his brothers was serving the deceased and his widow like his own parents. In lieu of his servi c es, deceased - Janardhan Dass executed Will dated 17.08.1984 bequeathing all his prope r ty in favour of Defendant No. 1 . Will was attested by Defen d ant No.2, wi d ow of the deceased-Janardhan Dass, one of his daughter na m ely Raj Rani , one of his son-in-law namely Bal Kishan and his family fri e nd B.B. Lal , Advocate. The Will was s c ribed by Lal Chand, husban d of Defenda n t No.5-son-in-law of the deceas e d.
[7] On the basis of the pleadin g s of the parties, suit filed by the plaintiff w as put to the following issues:-
[8] Trial Court after analyzing whole evidence that has come on record, h e ld the Will (Exhibit D-1) to b e a genuine Will and dismissed the suit filed b y plaintiff.
RSA-225 7 -1994 & RSA-689-2004 -4-
[9] In appeal preferred by the p laintiff, findings recorded by the trial Cou r t stands affirmed.
[10] Assailing the impugned jud g ments and decrees passed by the Courts b e low, learned counsel for the plaintiff submits that the Wil l in question i s an unregistered Will. Late Ja n ardhan Dass was a retired Tea c her and a well educated man. The Will bears thumb mark and not the signature s , which is unusual. He further refers to the report of Handwri t ing Expert e x amined by the plaintiff to concl u de that the Will was prepared o n a paper, w h ich was already thumb marked by Janardhan Dass. He fur t her submits t h at it is highly improbable th a t deceased-Janardhan Dass, w o uld exclude a ll his natural LRs and bequeath all his property to his nephew. He further s u bmits that it has come on rec o rd that scribe of Will namely Lal Chand fa b ricated his own certificates, w hich shows that the testimon y of scribe is totally unreliable. There bein g no cogent evidence on recor d to prove the execution of Will, Courts belo w erred in dismissing the suit fi led by the pl a intiff, holding the Will to be a g enuine document.
[11] Per contra, learnedcounsel fo r respondent No.1/defendant N o.1 submits t h at execution of the Will was p r oved in terms of Section 63 of the Indian S u ccession Act. Attesting witnes s es have been examined, who d uly proved e x ecution of the Will. Suspici o us circumstances claimed by the plaintiff a re baseless. The attesting w i tnesses and the scribe who f u lly proved the Will would have themselves b e nefitted had the Will been not
RSA-225 7 -1994 & RSA-689-2004 -5-
proved. I t is further claimed that pure fin d ings of fact have been recorde d by both the C ourts below, upholding the Will to be a genuine document and t his Court w h ile exercising jurisdiction in s e cond appeal cannot be require d to re-apprec i ate the evidence.
[12] I have heard counsel for t h e parties and have carefully g o ne through r e cords of the case. [13] The only issue in the lis relates to validity of Will d a ted 17.08.19 8 4 executed by Janardhan Dass. Trite it is that in the cases rela t ing to Will, t h e propounder has to prove tha t the Will was executed in term s of Section 6 3 of the Indian Succession Ac t by discharging mode of proo f as contempl a ted under Section 68 of the Indian Evidence Act. That apart the propoun d er also has to dispel any suspici o us circumstance pointed out by the party ch a llenging the Will. Thus this C ourt needs to test the Will on the touch-sto n e of Section 63(c) of the Indian Succession Act in terms of the Indian E v idence Act and thereafter see w hether any suspicious circumst a nce exists to d islodge the Will.
[14] Janardhan Dass left behin d widow-Defendant No.2 and 06 daughter s i.e. the plaintiff and Defenda n t Nos.3 to 7. Will propounde d by Defenda n t No.1 is stated to have been sc r ibed by Lal Chand-his son-in-law. The sam e was witnessed by his widow, h is acquaintance Brij Bihari Lal , an Advocate and his daughter Raj Rani-D e fendant No.4. Scribe-Lal Chand appeared as DW-1. Attesting witness B. B . Lal appeared as DW-2. Both o f
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them are u nambiguous in their testimony to state that the Will was writte n at the insta n ce of Janardhan Dass. The sa m e was read over to him. Accep t ing the same t o be correct, he appended his t h umb impressions in presence o f the attesting w itnesses, who also signed in t he presence of Testator. Scrib e is none els e but one of the son-in-law of executant Janardhan Dass, w ho himself w ould benefit from the estate of Janardhan Dass in case the Wi l l is dislodge d . Rather all the daughters of J a nardhan Dass but for the plai n tiff have sup p orted the Will by filing their w r itten statement supporting clai m of defendan t No.1.
[15] Will is always a departure f rom natural succession and th u s a Will can n ot be struck down merely for t he reason that a natural succe s sor has bee n excluded. While excludin g his daughters and his wid o w, executan t -Janardhan Dass has assigned t h e reasons. Recitals of the Will not only spe a k of reasons for excluding da u ghters but also assign reasons for bequeath i ng property in favour of Defen d ant No.1.
[16] Coming on to the cloud o f suspicion being raised by the plaintiff a round the Will, the most mat e rial issue raised is with respec t to Janardha n Dass appending thumb impres s ion despite being a well educataed man. T h e said question raised by th e plaintiff has been answered by witnesses DW-1 and DW-2, who happ e n to be the scribe and one of the attesting w itness to the Will. They exp l ained that the hands of Janard h an Dass star t ed trembling and thus he appen d ed thumb marks instead of signing
RSA-225 7 -1994 & RSA-689-2004 -7-
the docu m ent. The explanation offered is not improbable. So far as the report of the expert examined by the pla i ntiff is concerned, even as per the same, the Will bears thumb impression o f Janardhan Dass. The doubts b e ing raised wi t h respect to spacing between t h e lines are baseless and the s a me can be w e ll concluded by having a glanc e at the Will, which is on recor d as Exhibit D -1.
[17] The Courts below have rig h tly held that the fact of all of the daughter s except for plaintiff supporting W ill despite the same being aga i nst their own interest is a valid reason to hol d valid execution of the Will.
[18] In view of above, this C o urt does not find any reaso n to interfere i n the second appeal, as pure fin d ings of fact have been recorde d by the Cour t s below and the counsel for t h e plaintiff could not point out a ny perversit y or misleading of evidence by the Courts below to persuade t his Court to u pset the findings.
[19] As a consequence thereof, once Will executed by Janard h an Dass has been held to be valid, this Cou r t does not find any reason to g o in to the m erits of RSA-689-2004, whi c h relates to decree suffered by Janardha n Dass in favour of Defen d ant No.1-Mahavir Singh. Once Mahavir S ingh has succeeded on the basis of the Will, the result of the o t her appeal w i ll have no bearing on the rights o f the parties. [20] In view of above, both the a p peals are dismissed. No costs.
RSA-225 7 -1994 & RSA-689-2004
-8-
[21] Pending miscellaneous application(s), if any, shall also st a nd
disposed off .
(PANKAJ JAIN) JUDGE 14.08.20 2 4 ‘R. Sharma' Whether speaking/ reasoned : Yes/No Whether reportable : Yes/No
RAJNEESH SHARMA 2024.09.19 23:59 I attest to the accuracy and integrity of this document
2 issues framed by the court
Whether the Will dated 17.08.1984 executed by Janardhan Dass was duly executed and proved, free of suspicious circumstances.
Whether the second appellate court should interfere with concurrent findings upholding the Will.
3 provisions across 2 enactments
Shama Sharma
Mahavir Singh
Pankaj Jain
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
