Narender Kumar vs Bishan Dutt

Arun Palli, J.—Suit filed by the plaintiff-Bishan Dutt @ Bishan Dev was decreed by the learned trial Court vide judgment and decree dated 12.05.2012. Appeal preferred by defendant Narender Kumar (defendant No. 1) against the said decree failed and was accordingly dismissed by the learned First Appellate Court vide judgment and decree dated 27.04.2013. That is how defendant No. 1 is before this Court in this Regular Second Appeal. Parties to the lis, hereinafter, would be referred by their original positions in the suit.

In a suit filed by the plaintiff, he sought a declaration that he is the owner in possession of the property as described in para No. 1 of the plaint to the extent of 1/6th share and so are defendants No. 1 and 2 and are also the owners in possession of the said property. Mutation No. 4543 and subsequent revenue entries changed on the basis of said mutation showing Smt. Chhajiya as co-owner/co-sharer in the suit land was wholly illegal and void and the same did not create any right, title or interest of any kind in her favour and were liable to be corrected. Likewise, the Will dated 30.04.2010 is a forged and fabricated document and the same does not create any title in favour of defendant No. 1. By way of consequential relief, decree for permanent injunction was prayed for, restraining defendants No. 1 and 4 from dispossessing the plaintiff and also from alienating or transferring the suit land in any manner.

Briefly, the case set out by the plaintiff was that the suit land was/is ancestral in nature in the hands of Balm (now deceased), father of the plaintiff and defendant No. 1. It was maintained that the plaintiff, defendant No. 1 and Gian Chand, the late father of defendant No. 2 were coparceners in the said land and their father Ballu was ''Karta'' of the said joint Hindu family/coparcener. Thus, on the death of Ballu, suit land was inherited by all the three brothers in equal shares by way of survivorship. However, on account of a mistake and inadvertence of the revenue officials, the mutation of inheritance No. 4543 in respect of the suit land was entered and sanctioned in favour of all the three brothers and also Smt. Chhajiya (now deceased) their mother, Smt. Chhajiya, indeed had no right to inherit the suit land as the same was ancestral/coparcenary. Thus, the Will purported to have been executed by her in favour of defendant No. 1 was also of no consequence. Additionally, the said Will was a result of fraud and misrepresentation. Smt. Chhajiya was seriously ill due to paralysis and was bedridden. The Will in question was executed just about 16 days before her death. Further, Smt. Beena (defendant No. 4) was legally married wife of Gian Chand, late brother of plaintiff and defendant No. 2 Dheeraj is the son of Gian Chand and Smt. Beena. After the death of Gian Chand, Smt. Beena performed re-marriage with defendant No. 1 Narender Kumar. Thus, the share of Gian Chand has been inherited by defendant No. 2 as his sole successor. Thus, the suit.

Defendants No. 1, 2 and 4, inter alia, in their defence, denied that on the death of Ballu, suit land was inherited by plaintiff in equal share by way of survivorship according to provisions of Hindu Law. Therefore, it was maintained that mutation No. 4543 was correctly recorded in the name of Smt. Chhajiya. It was asserted that Smt. Chhajiya executed the Will on 30.04.2010 in favour of defendant No. 1 being a co-sharer in possession of the suit land and the said testament was a validly executed document by Smt. Chhajiya with her free will and consent.

Defendant No. 3 i.e. Smt. Hem Lata d/o Ballu and sister of the plaintiff conceded the claim of the plaintiff in the written statement filed by her.

Ex facie, issue No. 2 with regard to mutation No. 4543 in favour of Smt. Chhajiya, showing her to be the co-sharer was not pressed before the learned trial Court as plaintiff led no evidence. Thus, the short issue which remained to be determined was with regard to the due and valid execution of the Will in question Ex. P1.

Learned Courts below reviewed the matter in issue and the evidence on record in its entirety. Reference in particular was made to the contents of the purported Will and the testamentary disposition set out therein. Concededly, as per the recitals in the Will Chhajiya was 72 years of age at the time of its execution and was paralytic. Whereas, defendants No. 1, 2 and 4 in their written statement had denied that Smt. Chhajiya was seriously ill due to paralysis or was unable to move from the bed. Admittedly, she died on 17.05.2010 i.e. within one month after the execution of the alleged Will. Thus, the Will was surrounded by suspicious circumstances. Further, Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act, which postulates the procedure for execution and as to how the Will is to be proved, were referred to in extenso to hold that Will in question was not proved as envisaged under the said provisions of law. Admittedly, Rashid Lambardar r/o Beesru was an attesting witness and Pappisen was another attesting witness. DW 1 Rashid tendered his affidavit Ex. EW 1/A. An analysis of the said affidavit brought to fore that the said witness was conspicuously silent whether Will in question was also signed by other attesting witness in his presence or not. The affidavit of this attesting witness was even silent regarding the fact that testator put her thumb impressions on the impugned Will in his presence and in the presence of other attesting witness namely Pappisen. The affidavit furnished by Rashid Lambardar was also silent about this Will being signed by the other witness. Thus, statement of Rashid Lambardar was not sufficient to prove the impugned Will. The other marginal witness namely Pappisen has not been examined by the defendants. Scribe of the Will was not an attesting witness and therefore his evidence was not sufficient in law to prove the due and valid execution of the Will. Mere registration of the Will was not enough as it still required to be proved as per law. Therefore, the Will in question was held to be suspicious as the plaintiff failed to dispel the circumstances surrounding the same.

I have heard learned counsel for the appellant and examined the judgments rendered by both the Courts below. On an analysis thereof, I am of the considered view that no interference, at all, is warranted viz-a-viz the concurrent finding of fact recorded by the Courts below. No question of law, much less a substantial question of law, arises for consideration of this Court, in the present appeal. The same being completely devoid of merit is accordingly dismissed.