Gian Chand vs Smt. Lajwanti and Others

Kuldip Singh, J.—This appeal has been directed against the Judgment, decree dated 1.4.1998 in Civil Appeal No. 6 of 1996 passed by learned District Judge, Chamba affirming Judgment, decree dated 29.2.1996 passed by learned Senior Sub Judge, Chamba in Civil Suit No. 247/95/1991.

The facts in brief are that Appellant had filed a suit for declaration regarding property more specifically described in the plaint. It has been alleged that the will dated 16.9.1985 allegedly executed by Kirpa Ram in favour of Respondent No. 1 is wrong, illegal. Kirpa Ram was an old and illiterate person and was not mentally fit to execute the will. The Respondent No. 1 by way of fraud and undue influence got executed the will dated 16.9.1985 in his favour. The mutation No. 237 dated 26.5.1987 has been wrongly attested in favour of Respondent No. 1. The further case of the Appellant is that it was joint property and Kirpa Ram had no right to execute the will. The Appellant had performed the last rites of Kirpa Ram. It has been alleged that will dated 16.9.1985 is not binding on the Appellant.

The Respondent No. 1 has contested the suit by filing the written statement. He has submitted that Kirpa Ram had executed a valid will dated 16.9.1985 in favour of Respondent No. 1. The will was also got registered. The Appellant has no locus-standi to challenge the will. The Respondent No. 1 has pleaded that he had served the testator, who in sound disposing mind voluntarily executed the will in his favour. He has stated that he performed the last rites of Kirpa Ram. The Appellant filed replication and refuted the stand taken by Respondent No. 1. On the pleadings of the parties, the following issues were framed:

Whether the mutation No. 237 dated 26.5.1987 attested in favour of Defendant No. 1 Shri Nand Lal on the basis of alleged false and fictitious will dated 16.9.1985 is wrong, illegal and not binding upon the rights of Plaintiff and proforma Defendants as alleged? OPP.

Whether the Plaintiff has no locus-standie to file the present suit? OPD.

Whether the suit is not maintainable in the present form as alleged? OPD.

Whether the Plaintiff is estopped from filing the present suit on account of his act and conduct as alleged? OPD.

Whether the impugned will dated 16.9.1985 was validly executed by deceased Shri Kirpa Ram during his life time in respect of his estate in favour of Defendant No. 1 as alleged? OPD.

Relief.

The issues No. 1 to 4 were answered in the negative and issue No. 5 in affirmative and suit was dismissed by learned Senior Sub Judge on 29.2.1996. In appeal, the learned District Judge on 1.4.1998 affirmed the Judgment, decree dated 29.2.1996, hence second appeal, which has been admitted on the following substantial questions of law:

Whether the learned Courts below were right in accepting the `WILL'' as a legally admissible document when admitted the beneficiary i.e. Nand Lal Respondent was required to obtain probate thereof and was appointed as an executor?

Whether a person can be an executor as well as a legatee at the same time under a will?

Whether a will can be made of undefined shares in joint property

Whether the will has been executed in accordance with Section 63 of Indian Succession Act?

Whether both the learned Courts below were right in holding that there were no suspicious circumstances and the will was validly executed?

I have heard the learned Counsel for the Appellant and have also gone through the record. The learned Counsel for the Appellant has submitted that two courts below have erred in returning the finding that Kirpa Ram had executed a valid will in favour of Respondent No. 1 on 16.9.1985. He has submitted that there are material contradictions regarding the execution of the will. It has come in evidence that some will in Hindi was prepared, but will Ex. D-1 is in English. The two courts below have misread and misconstrued the evidence. The probate of the will has not been obtained by Respondent No. 1. The execution of the will has not been proved in accordance with Section 63 of Indian Succession Act. The learned Counsel for the Appellant has prayed for acceptance of the appeal.

The substantial questions of law No. 1 to 5 referred above are interconnected and therefore, all of them are taken up together for disposal. The Hindu will is required to be executed in accordance with Section 63 of Indian Succession Act. Section 68 of Indian Evidence Act provides proof of a document which requires attestation.

In order to prove the will the Respondent No. 1 has examined PW 2 Prem Dass, who has stated that Kirpa Ram had executed the will. He and Norang were taken before advocate Mr. Omi, who scribed the will and got it typed. The advocate Mr. Omi put the thumb mark of Kirpa on the will and it was read over to the testator, who accepted the execution of the will. The will was also read over to the witnesses and thereafter they put their signatures on will Ex. D-1 and he identified his signatures as well as the signatures of Norang witness on the will. He has also stated that testator was in sound disposing mind at the time of execution of the will. Kirpa Ram was living with Respondent No. 1 and his last rites were performed by him. He has been cross-examined at length but nothing was extracted from his cross-examination, which can be of any help to the Appellant.

DW 3 Om Parkash, Advocate has stated that he scribed the will Ex. D-1 as per instructions of Kirpa. It was got typed from Munabber Danial and after typing the will was read over to Kirpa in local dialect "Chambyali". He understood it and after admitting its correctness put his thumb mark and attesting witnesses have also put their signatures on the will. The note Ex. D-2 on the will was given by him. The mental condition of Kirpa at the time of execution of the will was good. The will after execution was taken before the Tehsildar, who read over the same and Kirpa admitted its correctness.

The learned Counsel for the Appellant has stated that DW 2 has stated that he had not gone to Tehsil and, therefore, the story of execution of the will as projected by Respondent No. 1 is not true. Ex.D -1 is will dated 16.9.1985, it has been registered on 16.9.1985. It is not the case of Respondent No. 1 that will was scribed, executed and typed in the Tehsil. DW 2 Prem Dass has stated that will was scribed by Mr. Omi, Advocate, testator and attesting witnesses had also put their thumb mark and signatures. DW 2 has nowhere stated that will was scribed in the Tehsil. Therefore, the Appellant cannot take any benefit from the statement of DW 2 in cross-examination that he had not gone to Tehsil.

There is an endorsement of registration of Sub-Registrar on Ex. D-1 to which presumption of truth is attached u/s 59 read with Section 60 of Indian Registration Act. The two courts below have rightly appreciated the material on record in returning the finding that Kirpa Ram had executed a valid will Ex. D-1 in favour of Respondent No. 1. Merely some notes were prepared in Hindi before will Ex. D-1 was actually executed, will not wipe out will Ex. D-1. The mis-construction or mis-interpretation of the will Ex. D-1 has not been proved.

The learned Counsel for the Appellant has submitted that beneficiary has not obtained probate of the will and therefore, it cannot be said that there is valid will in favour of Respondent No. 1. The Hindu will does not require any compulsory probate. The will Ex. D-1 is a simple will vide which the testator has bequeathed his property in favour of Respondent No. 1. The use of word "probate" in the will Ex. D-1 is inconsequential in view of legal position that Hindu will and will of the nature Ex. D-1 does not require probate. There is no bar that undefined share in joint property cannot be bequeathed by way of will. The Respondent No. 1 has proved that will Ex. D-1 has been executed in accordance with Section 63 of Indian Succession Act. The Appellant has failed to point out any suspicious circumstance, which goes to the root of the case so as to annul the will. The substantial questions of law No. 1 to 5 are decided against the Appellant.

No other point has been urged.

The result of the above discussion, the appeal fails and the same is accordingly dismissed. No costs.