Amrit Lal and Others vs Smt. Delumbi Devi and Another

D.B. Lal, J.—This Second Appeal is directed against the decision of the District Judge, Kangra who upheld, in appeal, the decision of the Subordinate Judge First Class, Una, and dismissed the suit of Amrit Lal and others for declaration and possession over 1/3rd share in landed property and a house that formerly belonged to Ram Dass and subsequently bequeathed by him in favour of the Plaintiff. The Plaintiff came to Court with the allegations that Ram Dass died on 17-1-1966 leaving behind his widow Shrimati Delumbihaving left no issues. Two days before his death Ram Dass according to Plaintiff, executed a will dated 15-1-1966 in favor of the Plaintiffs Amrit Lal and others who were his collaterals. It was consideredu by Ram Dass that he had no issues and Delumbi (Defendant No. 1) was likely to transfer the property in favour of her blood relations. After the death of Ram Dass, however, mutation was effected in favour of Delumbi and she got possession over the property. Subsequently she gifted the property in favour of one Dwarka Dass. Accordingly the Plaintiffs filed the suit for declaration that they became full owners because of the will executed on 15-1-1966 and that they were entitled to joint possession with the Defendants over the property in dispute. Bsides the Plaintiffs claimed possession over the house occupied by Delumbi although the house formerly belonged to Ram Dass and he was living in it alongwith his wife Delumbi until his death. The suit was resisted by the Defendants on the plea, that the will was a forged document. Ram Dass was not in a fit state of health and undue influence was exercised by the Plaintiff who also took advantage of the illiteracy of the widow. The will was unnatural, inasmuch as, the relationship of Delumbi with Ram Dass was cordial and both had lived together for a long time. Ram Dass must not have thought of depriving Delumbi of her residence in the house. It was, therefore, urged that the will could not be enforced by the Court and as a result to natural succession Delumbi became full owner of the properties.

Both the Courts below have decided against the Plaintiffs and have held that the will was not a genuine document. The suit was dismissed, and the Plaintiffs have come up in second appeal.

Much less to say, in second appeal a question of fact is final and cannot be agitated between parties. The learned District Judge has carefully considered the entire evidence. He has disbelieved the scribe as well as the attesting witnesses of the will. He has given reasons why there was a ring of untruth in the testimony of these witnesses. He has pointed out unnatural circumstances so that the will could not be held to be a genuine document. It is obviously correct that the relationship between Ram Dass and Delumbi was cordial. They lived together for about 36 years and she accompanied her husband when he served outside the village as he was a Railway employee. In fact Ram Dass got redeemed several mortgages and transferred the property in favour of Delumbi. It was difficult to believe that he would deprive her of the residential house, as well as the other property, which would have naturally come to her possession after his death. The Plaintiffs never rendered any service to Ram Dass and hence the latter must not have thought of giving the property to them for no thyme or reason. The scribe and the attesting witnesses were out to deceive Ram Dass and both the Courts below have narrated circumstances which lead to that inference. Ram Dass was infirm in health and his eve sight was defective. According to the two Courts below, the Plaintiffs Conspired together and wanted to deprive Delumbi of her properties. That is how the will, came into existence. According to the learned District judge the scribe and the attesting witnesses were of doubtful integrity, and has gone to the extent of saying that they were habituated in making forged documents.

The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the attest or as required by law, is sufficient to discharge the onus. Where, however, suspicious Circumstances exist, it is for the propounder to satisfy the conscience of the Court that the will was a genuine document. In the instant case, there was a hallow of suspicion, amply pointed out by the Courts below. It was for the propounder, namely the Plaintiffs, to dispel that hallow, and in my Opinion they are far from succeeding to dispel that hallow. The will was the result of fraud, coercion or undue influence and the onus on the propounder was not satisfied. The conscience of the Court was rightly stirred in the circumstances. It was for the Plaintiffs to allay that conscience. Rather heaps of circumstances are forthcoming to create a doubt and suspicion. The execution of a will is not only a physical act but is also a mental act. It could not be proved that Ram Dass either wanted to execute the will, or did in fact execute it with a free mind. There was physical incapacity and whatever he did physically was not accompanied by any memal exercise. In fact he died two days after the execution of the will.

I have, therefore, no hesitation in accepting the finding of fact arrived at in the Court below. It cannot be stated that any part of evidence was not considered or was misinterpreted in any manner. If facts are proved and cannot be assailed, any inference of fact drawn cannot similarly be assailed in second appeal. The long and short is that I do not find any compelling reason to take a different view and the appeal is devoid of any merit.

The appeal is accordingly dismissed with costs.