Ishwar Datt vs Smt. Leela Devi and Others

Kamlesh Sharma, J.—This appeal u/s 100 CPC is directed against the decree and judgment dated 21.3.1989 passed by District Judge, Shimla whereby the appeal of the Appellant-Defendant Ishwar Dutt was dismissed and the decree and judgment dated 17.1.1986 passed by the sub Judge Ist Class (2), Shimla was affirmed. The Sub Judge had decreed the suit of the original Plaintiff Jit Ram declaring that he had inherited one half share of the property mentioned in Para 1 of the plaint held by deceased Mathu and Appellant-Defendant Ishwar Datt had acquired no right, title and interest on the basis of Will Ex.DW-9/A, which is not a valid Will. Decree for permanent prohibitory injunction was also granted restraining Appellant-Defendant Ishwar Datt from interfering with the possession of original Plaintiff Jit Ram. Jit Ram. had died during the pendency of the appeal before the District Judge, and Respondents, who are his wife and sons, have been brought on record as his legal representatives.

This Court has heard learned Counsel for the parties and gone through the record. It is not in dispute that both the Courts below have concurrently held that Will Ex.DW-9/A propounded by the Appellant-Defendant Ishwar Datt, on the basis of which he claims to have inherited the property of deceased Mathu, has been found shrouded in suspicious circumstances, which have not been explained by him. According to the Courts below, one of the suspicious circumstances is that Jit Ram was real brother of Mathu, who would have inherited his property in the normal course but his name is not mentioned in Will Ex.DW-9/A, and also no reason has been given as to why he has been disinherited. Both the Courts below have concurrently found that Appellant-Defendant Ishwar Datt had no relation with deceased Mathu; he was not living with him and serving deceased Mathu who was 70 years old and patient of Tuberculosis and there is nothing on record to snow that there were strained relations between Mathu and his brother Jit Ram, as such there was no occasion for deceased Mathu to bequeath his property in favour of the Appellant-Defendant Ishwar Datt.

Another suspicious circumstance, which has not been explained by Appellant-Defendant according to the Courts below is that the marginal witnesses of Will ExDW-9/A were not from the village of deceased Mathu and were chance witnesses. In the statement of Amar Singh DW-9, one of the marginal witnesses, the first appellate Court has found lot of contradictions and discrepancies in respect of the time of execution of the Will and registration of the Will, which creates serious doubt about his presence at the time of execution and registration of the Will further, he has stated that only Will Ex. DW-9/A was executed, whereas, admittedly, another document, Power of Attorney Ex.D-1, was also executed simultaneously, which bears his signatures. Besides this, in view of the fact that Appellant-Defendant Ishwar Datt, the propounder of the Will Ex.DW-9/A, had taken active part in the execution of the Will, serious doubt is created about its genuineness.

Mr. G.C. Gupta, learned Counsel for the Appellant-Defendant Ishwar Datt, has vehemently argued that all these suspicious circumstances are not enough to hold Will Ex.DW-9/A as not a genuine document, as its execution and registration is duly proved by the scribe Kangnu Ram DW-3, Amar Singh DW-9 and R.S. Chandel DW-2, the then Registering Authority. He has referred to various authorities of the Supreme Court and different High Courts to substantiate his submission that neither of these suspicious circumstances refereed to by both the Courts below is enough to reject Will Ex.DW-9/A.

First authority referred to by Mr. G.C. Gupta is Smt. Uttami v. Shri Ram Dass etc. (1975) ILR HS, 4 441, in which the learned Judges have referred to the basic authorities of the Supreme Court in Rani Purnima Devi v. Khangendra AIR 1959 S.C. 567 and Shashi Kumar Banerjee and Others Vs. Subodh Kumar Banerjee since deceased and after him his legal representatives and Others, to hold that onus of proving the Will is on the propounder an din the absence of suspicious circumstances surrounding the execution of the Will proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. The propounder of a Will has to prove the due and valid execution of it, and that if there are any suspicious circumstances surrounding the execution of the Will, the propounder must remove the said suspicion from the mind of the Court by cogent and satisfactory evidence. The application of these two general and broad principles, however, depends upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. On the appreciation of the evidence of the case before them, the learned Judge had come to the conclusion that the testator was mentally sound and had testamentary capacity and his Will was upheld. The ratio of this judgment is hat on the facts and circumstances proved on record of each case not only the due and valid execution of the Will should be proved but it should be free from any suspicion circumstances to hold it a genuine document.

In Sita Ram Vs. R.D. Gupta and Others, , it is held that active participation by a beneficiary in the execution of the Will can only be taken as a circumstance for rendering that Will suspicious, if the Will itself appears to be unnatural and confers any undue benefit on the beneficiary. In Smt. Malkani Vs. Jamadar and Others, the principle laid down is that testamentary capacity of the executrix or the genuineness of the Will cannot be doubted on the ground that the beneficiary under the Will has taken active part in its execution.

In Tara Singh v. Smt. Shanti and Ors. 1988 P.L.J. 77, the learned Judge of Punjab and Haryana High Court has held that it is not by itself sufficient to disbelieve the witnesses or create any suspicion if the attesting witnesses of the Will are not from the village of the testator and also that unnatural disposition of depriving real daughters, does not make the Will unnatural if its execution is satisfactorily proved. In PPK Gopalan Nambiar v. PPK Balakrishan Nambiar and Ors. AIR 1985 SC 1852, the Supreme Court has held that even if the whole of the estate is given to the son in exclusion of the daughter, it is not sufficient to generate suspicion when the Will in question was executed and registered eight years prior to the death of the testator and neither there were pleadings nor evidence to challenge the validity of the Will. In Smt. Sudarshan Kaur Vs. Ripudaman Singh and Others, the learned Judge has upheld the Will in question on the basis of evidence on record holding the execution and attestation thereof

After examining all these authorities, this Court has no hesitation to hold that each case has to be examined on its facts and circumstances on record. Separately, the suspicious circumstance of disinheriting a close relation or witnesses not belonging to the village of the testator and chance witnesses or propounder of the Will taking active part in the execution of the Will may not be enough to hold the Will as not legal and valid but taking all these suspicious circumstances together coupled with the most important suspicious circumstance that there was no occasion for deceased Mathu to bequeath his property in favour of Appellant-Defendant Ishwar Dass as he was neither living with him nor serving him nor cultivating his land, the only conclusion possible in the present case is that the Will Ex.DW-9/A is not a genuine Will and cannot be held as the last wish of testator described Mathu.

There is no dispute that in exercise of powers u/s 100 Code of Civil Procedure, this Court is not supposed to re-appreciate the evidence on record, but in order to verify whether the Courts below have correctly read and appreciated the evidence on record for arriving at their conclusion, this Court has gone through the pleadings and the evidence, and has found that the findings of the Courts below are legal, valid and substantiated by the evidence on record. Mr. G.C.Gupta, learned Counsel has not been able to point out any substantial question of law to enable this Court to interfere with the concurrent findings of fact arrived at by the Courts below.

In the result, there is no merit in this appeal and it is dismissed. No costs.