Lal Chand vs Smt. Vikrama Devi and Others

Kuldip Singh, J.—The Appellant who has lost in both the Courts has assailed judgment, decree dated 14.3.2001 passed by learned District Judge, Kangra at Dharamshala in Civil Appeal No. 90-D/XIII/1999, affirming judgment, decree dated 31.3.1999 passed by learned Sub Judge-1, Dharamshala, District Kangra in Civil Suit No. 282/93/90.

The facts of the case in brief are that the Appellant had filed a suit for declaration with respect to suit property, more specifically described in the plaint on the basis of Will dated 17.9.1985 executed by his father Kalu. The Will is registered. It has been alleged that the Appellant is owner in possession of the suit property. The mutation No. 220 sanctioned on 15.6.1990 by Assistant Collector, Dharamshala, conferring proprietary rights on the Plaintiffs and Defendants in equal shares ignoring the Will dated 17.9.1985 is wrong and illegal.

The Respondents contested the suit and took preliminary objections that the suit is not maintainable, the Will is forged, the Appellant is estopped from filing the suit, the Appellant has no locus-standi to file the suit. The objections of limitation, non-joinder of necessary parties were also taken. On merits, it has been stated that the suit land has been equally mutated in favour of the parties. The Appellant is a clever person who wants to grab the whole property on the basis of fictitious Will. It has been alleged that no Will has been executed by Kalu in favour of Appellant. The predecessor-in-interest of the parties was non-occupancy tenant. The Assistant Collector has rightly sanctioned the mutation No. 220 of inheritance in favour of both the parties in equal shares.

4.The Appellant filed replication and reiterated his stand taken in the plaint. On the pleadings of the parties, the following issues were framed:

Whether valid will dated 17.9.85 has been executed by the father of the parties. If so, its effects? OPP.

Whether the mutation No. 220 conferring proprietary rights in equal shares upon the parties is wrong and incorrect, as alleged? OPP

Whether the suit is within time? OPP

Whether this suit is not maintainable? OPD.

Whether the Plaintiff is estopped by his act and conduct? OPD.

Whether the Plaintiff has no locus standi to file the suit? OPD.

Whether the suit is bad for non-joinder of necessary parties? OPD.

Relief.

The issues No. 1, 2, 3 and 7 were answered in negative, issues No. 4 and 6 in affirmative and issue No. 5 was not pressed. The learned Sub Judge dismissed the suit on 31.3.1999. The learned District Judge, on 14.3.2001 affirmed the judgment, decree dated 31.3.1999, hence second appeal which has been admitted on the following substantial questions of law:

Whether a registered and proved Will on record duly executed by one Kalu in favour of the Appellant has satisfied the ingredients of Section 63 of the Indian Succession Act?

Whether the Courts below have gravely erred in holding the Will as forged document without any evidence on record led by the opposite party?

Whether the courts below have misconstrued and mis-appreciated the evidence on record produced by the Appellant?

I have heard the Learned Counsel for the parties and have also gone through the record. It has been submitted by Learned Counsel for the Appellant that Respondents have taken contradictory pleas of undue influence and that the Will is forged document. He has submitted that the two Court below have misconstrued and misinterpreted evidence in rejecting the Will Ex.PW-1/A. It has been submitted that on the basis of material on record, the Appellant is entitled to decree as prayed. The Learned Counsel for the Respondents has submitted that the two Courts below have recorded concurrent findings of fact against the execution of the Will. It has been submitted that the Will has not been proved by the Appellant. No substantial question of law is involved in the appeal. The learned Counsel for the Respondents has supported the impugned judgment, decree.

The substantial questions of law No. 1 to 3 are interconnected therefore; all of them are taken up collectively for determination. The question involved in the appeal is the execution Will Ex.PW-1/A and whether the execution has been proved in accordance with Section 63 of the Indian Succession Act, 1925. PW-1 Mohan Lal has stated that Kalu Ram had got the Will executed in favour of younger son Lal Chand which is Ex.PW-1/A and he scribed the Will. He has stated that attesting witnesses of the Will are S.K. Sharma, Advocate and Pritam.

PW-2 Pritam has stated that he is an attesting witness of Will Ex.PW-1/A and it bears his signature. The Will was scribed by petition writer and was read over to Kalu Ram who after understanding the Will put his thumb mark on it. Thereafter he signed the Will as attesting witness. The second attesting witness was S.K. Sharma, Advocate. Thereafter the Will was taken to Sub Registrar; there also the Will was read over to Kalu Ram. PW-2 has not made it clear in his statement that the testator put his thumb mark on the Will in presence of S.K. Sharma, the second attesting witness nor he has stated that S.K. Sharma signed the Will in presence of testator. The entire reading of statement of PW-2 makes it clear that he has not proved the execution of Will in accordance with Section 63 of the Indian Succession Act.

The Appellant has not examined second attesting witness S.K. Sharma nor Sub Registrar has been examined to prove this fact that before registration of the Will, the same was read over and explained to the testator. Thus, seen from any angle the execution of the Will Ex.PW-1/A has not been proved. The two Courts below have rightly appreciated the material on record. Simply the Will is registered it does not dispense with the proof of the Will. The Appellant has failed to point out the misconstruction and misinterpretation of evidence. The substantial questions of law No. 1 to 3 are decided against the Appellant.

In view of above discussion, the appeal fails and is accordingly dismissed with no order as to costs.