Hari Ram vs Geeta Rani and Others

Sabina, J.—Plaintiff -Geeta Rani had filed a suit permanent injunction. Additional Civil Judge (Senior Division),Balachaur vide judgment and decree dated 20.7.2006 dismissed the suit of the plaintiff. Two separate appeals were filed by the plaintiff and defendants. Additional District Judge, Nawanshahr vide judgment and decree dated 21.4.2009, dismissed the appeals, Hence, the present appeal by defendant No. 2.

The facts of the case as noticed by the learned Additional District Judge, in paras 2 to 4 of its judgment read as under:

The brief facts of the case are that the plaintiff Geeta Rani filed (through her attorney) suit against defendants Hari Ram etc. seeking decree of permanent injunction restraining the defendants from talcing exclusive possession of specific portion of land details of which have been given in the head note of the Trial Court judgment by way of raising construction to the complete ouster of the plaintiff. It was further prayed that the defendants be restrained from alienating the specific portion of the aforesaid land and it was also prayed that the defendants be restrained from interfering into the joint possession of the plaintiff over the said land in any manner.

The case of the plaintiff, as stated in the plaint, was that she is the owner/co-sharer of the land and suit land has not been partitioned till date. It has been stated that all the defendants in connivance with each other started threatening the plaintiff that they would take forcible possession of the specific valuable portion of the land to the complete ouster of the plaintiff. The defendants further threatened her that they would alienate the specific portion of the suit land and they further threatened to interfere into lawful and peaceful of the plaintiff over the suit land.

On notice, the defendants and filed their written statement and stated that the plaintiff has no locus standi, no cause of action to file the present suit apart from taking other preliminary objections. On merits, it was stated that the plaintiff is not owner/co-sharer of the suit land, nor she is in joint possession of the suit land. It was further stated that the mutation order dated 6.1.2000 is illegal and the plaintiff never succeeded to the estate of Munshi Ram as Munshi Ram executed a registered will dated 3.3.1986 in favour of his brother Tulsi Ram and others. The operation of the order dated 6.1.2000 has been stayed by the Commissioner, Jalandhar.

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

(1) Whether plaintiff is entitled for permanent injunction as prayed for? OPP

(2) Whether suit of the plaintiff is not maintainable? OPD

(3) Whether plaintiff is estopped from filing present suit? OPD

(4) Whether plaintiff has no locus standi to file this suit? OPD

(5) Whether plaintiff has no cause of action for filing this suit? OPD

(6) Relief.

On 11.6.2003, following additional issue was framed:

5(a)Whether Munshi Ram deceased had executed a registered Will dated 03.03.86 in favour of defendants No. 1 & 2? OPD

After hearing learned Counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed. Plaintiff-had filed a suit for permanent injunction which was dismissed. Appellant along with defendant No. 1 had placed reliance on registered Will dated 3.3.1986 alleged to have been executed by Munshi Ram in their favour. Both the Courts below have held qua Issue No. 5-A in this regard that the Will in question set up by defendants No. 1 and 2 was not a genuine document. Hence, the present appeal by defendant No. 2.

A Will is a document that speaks of the mind of the deceased after his death. The executant of the Will is though never available for deposing as to under what circumstances, he has executed the Will. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last Will of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the Will. A Will is required to be proved like any other document. Since the Will is required to be attested and as per Section 68 of the Indian Evidence Act, 1872, at least one attesting witness is required to be examined to prove due execution of the Will. The attesting witness is required to establish that the Will in question was executed by the testator in the presence of attesting witnesses and they had attested the same in the presence of the testator. In a case where the Will is a registered document then the endorsement made by the Sub Registrar that the Will had been thumb marked or signed by the executant in his presence after it was read over to the executant has a presumption of truth. It is also a settled proposition of law that in connection with Wills execution of which is alleged to be surrounded by suspicious circumstances, the test of satisfaction of judicial conscience has been evolved. That test emphasis that in determining the question as to whether an instrument produced before the Court is the last Will of the testator, the Court is called upon to decide a solemn question and by reason of suspicious circumstances, the Court has to be fully satisfied that the Will has been validly executed by the testator.

Although the Will in question is a registered document but the same was not proved to be a genuine document. Defendants No. 1 and 2 in order to prove the execution of the Will, examined DW-3 Sita Ram, Deed Writer, DW-5 - Sri Ram, one of the attesting witnesses to the Will. They also examined DW-2 Mohan Lal-Tehsildar-cum-Sub Registrar who had registered the Will in question. However, the attesting witnesses to the Will did not support the case of defendants No. 1 and 2. It has been observed by learned Additional District Judge that admittedly, Munshi Ram was blind. DW-5 Sri Ram deposed that his signatures were taken on the document by saying that it was an agreement not the Will. He denied his presence in the office of Sub Registrar. He also denied that Munshi Ram had affixed his thumb impression in his presence. Although DW-2 Mohan Lal had deposed that Will at the time of registration was duly read over to the executant in the presence of the witnesses but the Will cannot be said to be a genuine document as from the statement of the attesting witnesses it cannot be said that the execution of the Will was duly established. Moreover, the executant bequeathed his property by way of the Will to his brothers. No reason has been given as to why the plaintiff who was the only daughter of the executant had not been given the property by the executant. This fact also renders the Will a suspicious document. In these circumstances, courts below have rightly held that the Will in question was not a genuine document.

No substantial question of law arises in this appeal.

Accordingly, this appeal is dismissed.