Milap Chand and Parkash Chand vs Ramesh Chand, Smt. Bimla Devi, Smt. Guddo Devi

Rajiv Sharma, Judge

This Regular Second Appeal is directed against the judgment and decree dated 07.05.2003, passed by the learned District Judge, Kangra at Dharmshala (HP) in Civil Appeal No. 86- B/XIII/2001. Material facts necessary for adjudication of this Regular Second Appeal, are that the respondent-plaintiff (hereinafter referred to as ''the plaintiff'' for the sake of convenience) has filed a suit against the appellants-defendants, namely, Sh. Milap Chand and Parkash Chand (hereinafter referred to as ''the defendants for the sake of convenience). Plaintiff and defendants No. 1 and 2, namely, Milap Chand and Parkash Chand are real brothers, being sons of Bidhu. Proforma respondents are daughters of Sh. Bidhu. A Will was executed by Bidhu in favour of defendants Milap Chand and Parkash Chand on 29.07.1991, Ex. D-1. On the basis of Will, Ex. D-1, the suit land, as detailed in the judgment and decree of the learned trial Court, was mutated in favour of the defendants to the exclusion of the plaintiff. Plaintiff challenged the execution of Will by Bidhu. According to him, Bidhu was not of sound mind and his last rites were performed by the plaintiff and other family members. His mother died on 11.01.1993. The factum of execution of the Will was never disclosed by the contesting defendants to him. He came to know on 07.07.1997 that a Will was executed by Bidhu in favour of his brothers Milap Chand and Parkash Chand. According to the plaintiff, the sanctioning of the mutation on the basis of Will is also illegal, null and void.

The suit was contested by the defendants. According to them, the Will is genuine. The Will was registered on 29.07.1991. The plaintiff during the life time of Bidhu, was living separately and Bidhu has already given separate land to him. Plaintiff was living in Chamba. It was denied that Bidhu was not mentally alert. According to them, the mutation was rightly sanctioned.

Replication was filed by the plaintiff. Learned Sub Judge 1st Class, Baijnath, District Kangra has framed the issues. Learned Sub Judge, 1st Class, Baijnath decreed the suit on 30.05.2001. He declared the will executed by late Bidhu in favour of defendants No. 1 and 2 on 29.07.1991 and registered on the same day not a genuine Will and the mutation sanctioned in their favour on the basis of Will in the revenue record was declared illegal, null and void.

The defendants preferred an appeal before the learned District Judge, Kangra at Dharamshala (HP). The same was also dismissed on 07.05.2003. Hence, this Regular Second Appeal.

This Regular Second Appeal was admitted on the following substantial questions of law:

Whether the judgments and decrees of the learned courts below are liable to be set aside being perverse & contrary to established legal provisions?

Whether the findings of the learned Courts below have misled, mis-constructed or mis-directed themselves in appreciating the "Will" Ex. D-1, dated 29.07.1991?

Mr. Rakesh Dogra, learned counsel for the appellants has strenuously argued that both the Courts below have not correctly appreciated the oral as well as documentary evidence. According to him, the Will dated 29.07.1991 has been executed in accordance with law. He also argued that the mutation has also been attested in favour of his clients on the basis of validly executed Will dated 29.07.1991.

Mr. Ajay Sharma, learned counsel for respondent No. 1 has supported the judgments and decrees passed by both the Courts below.

Since both the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid the repetition of discussion of evidence.

The Will is dated 29.07.1991. Bidhu has died on 22.04.1992. Plaintiff''s mother died on 11.01.1993. Plaintiff has appeared as PW-1. According to him, he was working as a Conductor in H.R.T.C. at Chamba. His father has three sons and two daughters. He was residing with Bidhu Ram right from beginning. In the year, 1987, Bidhu Ram fell ill. He was got treated by all his sons. In the year, 1991, Bidhu Ram fell ill again. He was looked after by the entire family. According to him, Bidhu Ram lost his memory. The last rights were performed by all the brothers jointly. All the brothers and sisters were together when their mother died on 11.01.1993. He came to know about the Will in the year 1997. According to him, the Will was made fraudulently. PW-2, Jaffu Ram has testified that the wife of Ramesh Chand, plaintiff never remained with him during his job at the place of posting. According to him, Bidhu Ram was not in a position to talk. He also stated that Bidhu Ram had never told him about the Will to him nor the defendants have told him about the same.

PW-3, Sada Ram has stated that prior to death of Bidhu Ram, he was unconscious. PW-4, Vikram Chand is the Registration Clerk. He has testified about the registration of the Will in the office of Sub Registrar, Baijnath.

PW-5, Sh. Vishan Dass is one of the attesting witnesses of the Will propounded by the defendants. According to him, when he had gone to Tehsil, he met Bidhu. He called him to appear as a witness. Bidhu told him that he was making a Will in favour of his three sons. He appended his signature on assumption that Bidhu was making Will in favour of his three sons. He did not know who signed the Will Ex. D-1 and who else was the attesting witness. This witness has not deposed that Bidhu appended his signature or put his thumb impression on the Will in his presence or the same was dictated in his presence. He did not know who was the second attesting witness of the Will.

DW-1, Milap Chand has testified that his brother is residing at Chamba. Defendants No. 1 and 2 used to look after their father. According to him, at the time of death, his father Bidhu Ram was in good senses. He further stated that his father has made Will in their favour, on the basis of which, the mutation was sanctioned. He also deposed that his father has given separate land to the plaintiff and the same was recorded in the revenue papers.

DW-2, Nanak Chand is the second attesting witness of the Will. He stated that Bidhu got the Will executed from the document writer, Rattan Lal, who read over the contents of the Will to Bidhu. Bidhu had made the Will in favour of his two sons in his presence. According to him, Rattan Chand, Scribe is now dead. According to him, second witness of the Will was Vishan Dass, who had put his thumb impression. Bidhu was in sound disposing mind at the time of execution of the Will. The Will was presented before the Tehsildar. DW-2, Nanak Chand has not testified that he also appended his signature as an attesting witness on Will, Ex. D-1 in the presence of Bidhu. He has only narrated putting thumb impression by Bidhu and also attesting it as a witness by Vishan Dass (PW-5). However, he has not stated that he had attested it as a witness and appended his signature in the presence of the testator.

The mother of the plaintiff has died on 11.01.1993. There is no mention about the mother in Will, Ex. D-1. According to the defendants, the plaintiff has started living separately and he has never rendered any services to his father. He was disinherited from the property. It has come in the statement of DW-1, Milap Chand that after joining services, the plaintiff started living in Ganesh Bazar, Baijnath. He also admitted that after marriage, the plaintiff and his family remained at Baijnath. He also admitted that plaintiff participated at the time of marriage of his sister and also participated in the marriage of his brother, Prakash Chand. He also admitted that his father died due to asthma and before death, his father was admitted in the Palampur hospital. Plaintiff used to visit him. He also admitted that the plaintiff and his wife had taken ashes of his father to Haridwar. It is, thus, proved that the plaintiff has participated in all the important functions of the family.

It has come in the statement of DW-1 that Bidhu has given separate land to plaintiff. In order to prove this, they have led additional evidence, i.e., documents Ex.-A 1 to Ex.- A 3, copies of jamabandis for the year 1994-95. According to Ex.-A 1, plaintiff and defendants are recorded in possession of certain land owned by the State Government. According to A-2, copy of jamabandi, parties to the suit and their sisters are entered as owners in possession of certain land. In jamabandi Ex. P-3, some land is recorded in possession of Bidhu as non-occupancy tenant. It is not established from these documents that Bidhu has given some land to plaintiff. The defendants have not led any tangible evidence on record to prove that Bidhu has given any separate land to the plaintiff. The Will was executed on 29.07.1991, however, the mutation was attested on 28.06.1993. The factum of execution of the Will has not been disclosed by the defendants to the plaintiff, though the plaintiff has attended all the important functions in the family.

DW-1, Milap Chand has also admitted that prior to death of his mother, the factum of execution of Will was not intimated to the Patwari. It has also come on the record that the defendants have taken active part in the execution of the Will. The Will has not been executed in accordance with law. There are no reasons assigned why one of the sons has been disinherited from the property. Plaintiff had been looking after his father also. It is evident from the statements of PW-5 Vishan Dass and DW-2 that the Will has not been executed in accordance with law. The mother of the plaintiff was alive till 11.01.1993, but her name has not been mentioned in the Will.

According to PW-5, Vishan Dass, Bidhu has told him that he was going to execute the Will in favour of his three sons. It is also evident that PW-5, Vishan Dass has not gone to the office of Tehsildar at the time of registration of the Will. The defendants have not produced the Sub Registrar/Tehsildar to prove that he had asked late Shri Bidhu about the correctness of the contents of the Will. It has come on record that Bidhu was suffering from asthma and was not in a position to talk. Accordingly, the defendants have failed to dispel the suspicious circumstances surrounding the Will. The Courts below have correctly appreciated the oral as well as documentary evidence led by the parties. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed, so also the pending application(s), if any. No costs.