Salinder vs R-1(a) Champa Devi And Others

Chander Bhusan Barowalia, J

The instant regular second appeal has been maintained by the appellant, who was defendant No. 1 before the learned Court below (hereinafter to

be called as “defendant No. 1â€), laying challenge to judgment and decree, dated 29.05.2015, passed by learned Additional District JudgeÂII, Una,

District Una, H.P., in Civil Appeal RBT No. 150/2013/11, whereby the judgment and decree, dated 09.08.2011, passed by learned Civil Judge (Jr.

Div.), Court No. II, Amb, District Una, H.P., in Civil Suit No. 117/2003, was set aside and suit of the plaintiff was decreed.

Briefly the facts, which are necessary for determination and adjudication of the present appeal, are that respondent No. 1 (since deceased, through

his LRs)/plaintiff (hereinafter to be called as “plaintiffâ€) filed a suit before the learned Court below against defendant No. 1 and other proforma

defendants, seeking declaration that the land mentioned in the plaint was jointly owned and possessed by him, alongwith the proforma defendants,

having inherited the same from their father, Bansi Lal. The suit land was joint Hindu coparcenary property, in addition to which, Bansi Lal also

possessed another piece of land as nonÂoccupancy tenant. However, the mutation of ownership could not be entered in the name of Bansi Lal qua

the said land, its owner Kushala Devi was a widow. The possession of the land, though remained with Bansi Lal. It has been averred that Bansi Lal

was not keeping good health and was not of sound disposing mind. He was incapable of caring for his welfare and of executing any document. He

expired on 06.12.1999 at Hoshiarpur, and his last rites were also performed by the plaintiff. The plaintiff, on approaching the revenue authority for

attestation of mutation of the estate of deceased Bansi Lal, came to know that mutation had already been sanctioned on the basis of a Will, dated

06.12.1999. It has been further averred that Will, dated 06.12.1999 had been procured by defendant No. 1, Salinder Kumar in his favour, in

connivance with the marginal witnesses and as such, the same is liable to be declared as illegal and void document. Consequential relief of injunction

restraining the defendants from disÂpossessing the plaintiff from the land and changing the nature of the same by cutting and removing trees, raising

any construction over the same, was also prayed for.

By filing written statement, claim of the plaintiff was resisted and contested by defendant No. 1, whereas a joint written statement was filed by

proforma defendants No. 2 to 5. In written statement, defendant No. 1 raised preliminary objections qua maintainability, limitation, nonÂjoinder of

necessary parties and valuation. On merits, it has been contented that deceased Bansi Lal, who was served and looked after by the defendant in his

old age, had executed a Will, dated 06.12.1999, in presence of witnesses, in a sound disposing mind. It has been further contended that deceased

Bansi Lal has expired on 07.12.1999 and not on 06.12.1999, as claimed by the plaintiff. The Will was a legal and valid document, on the basis of

which, the defendant had come into possession of the land in question and rest of the contents of the plaint were denied, being incorrect. In a joint

written statement, filed by proforma defendants No. 2 to 5, they supported the case of defendant No. 1

In replication, averments of the written statements were denied and contents of the plaint were reasserted.

On the pleadings of parties, the learned Court below framed the following issues for determination and adjudication:

 “1. Whether the plaintiff and proforma defendants are owners in possession of the suit land, as prayed for? OPP

Whether suit land/property was joint Hindu coparcenery and ancestral property, as alleged and if so its effect? OPP

Whether deceased Bansi Lal executed a legal and valid Will dated 06.12.1999 in favour of defendant No. 1? OPP

Whether Will dated 06.12.1999 is result of fraud, misrepresentation and is a forged and fabricated document, as alleged? OPD

Whether the plaintiff entitled to permanent injunction, as prayed? OPP

Whether suit is barred by limitation? OPD

Whether the suit is not maintainable in the present form? OPD

Whether suit is not property valued? OPD

Relief.

After deciding issues No. 1, 2, 4, 5, 6 and 9 in negative and issues No. 3 and 7 in affirmative, suit of the plaintiff was dismissed. Subsequently, the

plaintiff maintained an appeal before the learned first Appellate Court, which was allowed and the judgment and decree passed by the learned Court

below was set aside. Hence the present regular second appeal.

The learned counsel for the appellant has argued that the judgment and decree passed by the learned first Appellate Court is without appreciating

the document correctly and without properly appreciating the pleadings and evidence, as the Will was genuine, but the learned first Appellate Court

has ignored the same, as such, the judgment and decree passed by the learned first Appellate Court be set aside.

On the other hand, learned counsel appearing on behalf of the respondents has argued that the judgment and decree passed by the learned first

Appellate Court is in accordance with law and as such, the same needs no interference. He has further argued that there is no substantial question of

law involved in the instant appeal and the same deserves dismissal.

In order to appreciate the rival contentions of the parties, I have gone through the record carefully.

In order to prove his case, the plaintiff has examined Champa Devi as PWÂ1, who through affidavit, Ext. PWÂ1/A has repeated the same

version as pleaded in the plaint. However, in her crossÂexamination, she agreed to the suggestion that her husband, i.e. plaintiff, is doing labour work

at Hoshiarpur. Self stated that she has General Power of Attorney to depose on his behalf. She further deposed that plaintiff used to work at

Hoshiarpur even before their marriage. Her marriage with the plaintiff was solemnized in the year 1987. The plaintiff and his brother used to reside

separately after the marriage of the former. However, she denied the suggestion that when her fatherÂinÂlaw asked the plaintiff to repay the debt

taken for his marriage, he started residing separately. Self stated that Bansi Lal used to reside with the plaintiff. She also denied that Bansi Lal used to

reside with defendant No. 2. She denied that Bansi Lal was keeping good health and sound disposing mind. Self stated that he was not conscious of

his well being. She deposed that she got Bansi Lal treated from desi doctor, however, she could not tell the name of the doctor. She denied that Bansi

Lal has attested the Will in favour of defendant No. 1 out of his free will and sound disposing mind. However, she agreed to the suggestion that as per

Will, mutation of his entire property has been attested in favour of defendant No. 1. She also agreed to the suggestion that she has not filed any appeal

against the mutation order. She also admitted that plaintiff and defendant No. 1 have already filed another civil suit before this Court regarding the

same Will, however, denied that earlier suit was withdrawn by the plaintiff, as it was false. Self stated that defendant No. 5 withdrew the suit, as he

was not ready to continue with the same. She denied that Bansi Lal was being looked after by defendant No. 1 and his father Prakash Chand. Self

stated that Bansi Lal used to reside at Seri and she and plaintiff used to lookafter him. She denied that Bansi has common ration card with Parkash

Chand. Self stated that his name was in the ration card of the plaintiff. She denied that she came to know after the marriage that Bansi Lal and his

father were tenants over the suit land and suit land was cultivated by defendants No. 1 and 2. Self stated that all the sons were cultivating the suit

land. However, she admitted that plaintiff’s brothers and sisters have not challenged the Will.

PWÂ2, Bhajan Singh has deposed that he knows the parties and has seen the suit land. He further deposed that suit property is joint between

plaintiff and defendants No. 2 and 3 and house of the plaintiff is situated over the suit land. He deposed that Bansi Lal has lost his senses five years

before his death. He has no knowledge about his well being. Bansi Lal was being looked after by the plaintiff. The defendant used to reside at

Hoshiarpur. He went to the house of Bansi Lal on the date of his death. This witness, in his crossÂexamination has admitted that there was residential

house of Bansi Lal over the suit land, but now the same has been demolished. He also admitted that earlier plaintiff and his wife used to reside in the

said house. He denied that plaintiff and his wife are still residing in the house constructed by Bansi Lal. He admitted that plaintiff is residing at

Hoshiarpur. Self stated that the plaintiff used to visit village frequently. He denied that Champa Devi is his sister. He also denied that Bansi Lal was of

sound health and mind till his death. Self stated that his mental condition was not good. He feigned ignorance about the treatment of Bansi Lal.

On the other hand, defendant has examined Des Raj as DWÂ1, who deposed that Bansi Lal used to reside with his brother Parkash at Hoshiarpur

and was being looked after by him. The plaintiff used to reside separately from Bansi Lal at Hoshiarpur. He deposed that during his life time, Bansi

Lal desired to bequeath his property in favour of defendant No. 1, as he was happy from the personal services rendered by defendants No. 1 and 2 to

him. He deposed that Bansi Lal directed him to take him Amb for execution of Will. Accordingly, he came to Amb on 06.12.1999 to execute Will of

Bansi Lal. After reaching Amb, Bansi Lal asked the document writer Bishambar Dass to draft a Will in favour of defendant No. 1 and at that time he

was of sound disposing mind. He was also conscious about his well being. After drafting the Will, document writer readover and explained the Will to

the testator. Accordingly, he put his thumb impression over the same, after fully understating and finding the contents of the Will correct. Thereafter,

he alongwith Vijay Kumar, signed the Will as witnesses. The Will was also witnessed by Sh. R.S. Bhati, Advocate. Bansi Lal has also signed the

register of document writer Bishambar Dass. Thereafter, they went to the office of Registrar and Registrar readover and explained the Will to the

testator. Again Bansi Lal put his thumb impression over the Will register after fully understanding the contents of the same. In crossÂexamination, he

admitted that he used to reside in the house and doing the work of labour. Self stated that he is working as Halwai. Defendant No. 1 used to reside at

Hoshiarpur alongwith his family. He came to Amb from Hoshiarpur on the date of execution of Will. Defendants No. 1 and 2 did not accompany him

on the date of execution of Will. He, however, admitted that ration card of Bansi Lal was alongwith the family of the plaintiff. Self stated that ration

card of entire family was common. He admitted that witnesses Vijay Kumar and R.S. Bhati were called by document writer Bishambar Dass.

However, he denied that Bansi Lal has lost his entire mental capacity 3Â4 years before execution of Will. He also denied that Bansi Lal has no desire

to execute any Will. He deposed that Bansi Lal expired on 06.12.1999. Again stated that he expired on 07.12.1999. He took Bansi Lal to Amb in a

bus. He admitted that defendants No. 1 and 2 and his mother have no ration card at village Seri. Self stated that they had ration card at Seri. He

denied that defendants No. 1 and 2 have forged the Will in connivance with the document writer. He denied that last ceremonies of Bansi Lal were

performed by all the brothers. He, however, admitted that the plaintiff and his wife have also attended the ceremonies.

DWÂ2, Salinder Kumar, through affidavit, Ext. DWÂ 2/A, repeated the same version of written statement. In his crossÂexamination, he feigned

ignorance as to who brought Bansi Lal to Amb from Hoshiarpur on the day of execution of Will. However, he denied that his grandÂfather was not in

a position to walk. He feigned ignorance about the date of execution of Will. He deposed that ever since he was able to understand things, he found

his grandÂfather being residing with his family at Hoshiarpur. However, he used to visit village Seri at regular intervals. He admitted that the plaintiff

and his family are residing at village Seri. However, the plaintiff has constructed his new house. He deposed that there is no old house of the plaintiff

in the village. He deposed that Bansi Lal has expired at the age 60Â65 years. He denied that suit land is under the possession of the plaintiff. He

denied that in the month of June, 2003, his father and uncle have threatened the plaintiff to forcibly dispossess him from the suit land and further

threatened him to cut and remove trees from the same.

DWÂ3 Ajay Singh, registration Clerk, has proved the record and Will, Mark ‘A’, which has been registered in his register at Sl. No. 223,

dated 06.12.1999.

DWÂ4, Sh. R.S. Bhati, Advocate, has deposed that on 06.12.1999 testator Bansi Lal alongwith his son Des Raj came to Amb in a car. Bansi Lal

disclosed that he intends to execute registered Will in favour of his grandson. He took them to deed writer Bishambar Dass, who thereafter, drafted

the Will as per directions of testator. The contents of the draft were readover and explained to the testator. The testator after fully understanding the

contents of Will, put his thumb impression over the same. He, alongwith other witnesses, also signed the Will. Thereafter, the Will was produced

before the SubÂRegistrar for registration. The SubÂRegistrar again readover and explained the contents of Will to the testator, who admitted the

same to be correct and put his thumb impression. He and witness Vijay Kumar signed the Will in presence of SubÂRegistrar. At that time, Bansi Lal

was in sound disposing mind and was full conscious about his well being. In crossÂexamination, he admitted that he took Bansi Lal to deed writer,

Bishambar Dass. Deed writer wrote whatever was asked to him by Bansi Lal. He denied that Bansi Lal was not in sound disposing mind at the time

of execution of Will.

PWÂ5, Amin Chand, has deposed that sale deed, Ext. PWÂ5/A has been drafted by him and it bears his signatures. He further deposed that it is

registered at his register at Sl. No. 381, dated 12.09.1991.

The dispute in the present case is with respect to Will, dated 06.12.1999, which has been set up by the defendant, who is grandson of the testator.

His paternal uncle, the plaintiff, who is one of the sons of the deceased testator, has questioned the validity of the Will. It is settled proposition of law

that propounder of the Will is required to prove the execution of the same and apart from proving the due execution and attestation of the Will, it is

also the duty of the propounder to dispel the suspicious circumstances surrounding the Will set up by him. However, in the case at hand, on critical

appreciation of evidence led to prove the Will, there are many discrepancies and contradictions which cast serious doubt on the validity of the

document. The plaintiff in the plaint has claimed that testator Bansi Lal has expired on 06.12.1999, whereas the defendants have stated the date of

death of Bansi Lal to be 07.12.1999. There is no cogent evidence about the date of death of Bansi Lal, however, it has been stated by the plaintiff

himself in the plaint that in the municipal records, the date of death has been recorded as 07.12.1999. Even if it so, the fact remains that the testator

has expired on the very next day of the execution of the Will. It has also to be borne in mind that the Will in question was executed and attested at

Amb on 06.12.1999, and as per the version of the defendants, the testator at that time was in a fit state of health and of sound mind. Further, as per

the defendants the testator has expired at Hoshiarpur on 07.12.1999. The facts which have been pleaded by the defendant suggest that the testator

was more than 80 years of age, who came from Hoshiarpur to Amb, went through the entire process of execution, attestation and registration of the

Will, and then went back to Hoshiarpur to breath his last on the very next day. The cause of sudden death of a person who was fit enough to go

through a full day of hectic activity, including travel from Hoshiarpur to Amb and back in severe cold conditions of the month of December, has not

been explained.

Now coming to the statement of DWÂ1, Des Raj, one of the sons of the testator, Bansi Lal, who deposed that he had brought his father from

Hoshiarpur to Amb on 06.12.1999, for the purpose of execution of Will. He has further deposed that they had come by bus, but if the statement of

DWÂ4, Sh. R.S. Bhati, Advocate, is seen, in his crossÂexamination, he has specifically deposed that the testator alongwith his family members had

come in a car on that day. So, the afore variation in the statements of the witnesses, creates doubt qua the presence of the testator at Amb on

06.12.1999. The defendant No. 1 in his written statement has categorically stated that he had taken the testator to Hoshiarpur. Though, he has not

stated from where he had taken the testator to Hoshiarpur, however, in the facts and circumstances, statement only admits of 2 interpretations that

either defendant No. 1, Salinder Kumar had also come to Amb on 06.12.1999, or the testator had died at Amb and had been taken to Hoshiarpur

subsequently. DWÂ1, Des Raj, has categorically denied in his crossÂexamination that Salinder Kumar had come alongwith them to Amb. So, the

assertion in the written statement, as mentioned above, also creates doubt over the defendants’ case.

Besides afore facts, the process of execution, attestation and registration of the Will is also surrounded with suspicious circumstances, which is

evident from the testimonies of the defendant’s witnesses. Sh. R.S. Bhati, Advocate, while appearing in the witness box as DWÂ4 has deposed

that the testator, alongwith his son, Des Raj, had come to the Court campus and he has taken them to Bishambar Dass, deed writer. Whereas, DWÂ‐

4, Des Raj has deposed that deed writer Bishambar Dass had called the other two witnesses namely R.S. Bhati and Vijay Kumar. This is another

major discrepancy in the testimonies of the witnesses which cannot be ruled out. Further, the Will has been purportedly attested by three witnesses,

i.e. R.S. Bhati, Des Raj and Vijay Kumar. The witness, R.S. Bhati, in his deposition has stated that he had signed the Will after the testator had put his

thumb impression and Vijay Kumar had put his signatures. However, he does not mention the name of Des Raj, as one of the attesting witnesses of

the Will, rather he has only stated that Des Raj had signed the register of the deed writer alongwith the other persons. It is further interesting to note

that the affidavit in examination inÂchief of witness Vijay Kumar had been tendered in evidence, but he was never made available for crossÂ‐

examination and was given up by the learned counsel for the defendant on the ground that his deposition was unnecessary. The nonÂproduction of the

said witness for crossÂexamination and rather giving him up, after he had tendered his proof affidavit in evidence, is sufficient to raise an adverse

presumption against the defendants. It has further come in the statement of DWÂ1 Des Raj that signatures and thumb impression on the Will were

taken in the room of the registration clerk, while the Tehsildar was present in the another room. Thus, the attestation of the Tehsildar, i.e. the subÂ‐

registrar can also not be termed as valid, as the thumb impression and signatures on the Will were not put in his presence. The photograph of the

testator Bansi Lal affixed on Will, Ext. DWÂ​4/B also does not bear the attestation of the subÂ​ registrar.

Further, the pleadings and deposition of defendant No. 1, who is the beneficiary, also cast a doubt over the validity of the Will. Defendant No. 1 in

his written statement and also in his evidence, has categorically stated that all the sons of the testator, Bansi Lal, including defendant No. 2, Parkash

Chand, the father of defendant No. 1, had separated from his during his lifetime. At the same time, he has set up a case that the testator, Bansi Lal

resided with the family of defendant No. 1 at Hoshiarpur, who served him till his death. DWÂ1, Des Raj, in his crossÂexamination has admitted that

Bansi Lal resided in village Seri and that his ration card was joint with the plaintiff. Further, in written statement, the defendant No. 1, as also the other

defendants have averred that the suit land was the land held in tenancy by the testator Bansi Lal. In opposition to this, defendant No. 1, in his

examinationÂinÂchief on affidavit has specifically mentioned that the suit land had been purchased by the testator. The age of defendant No. 1, as

mentioned in the aforesaid affidavit was 27 years at the time of tendering of the affidavit in evidence, i.e. 2010 and at the time of execution of Will, i.e.

1999, his age must have been about 16 years. Therefore, it is hard to understand as to how defendant No. 1 had exclusively served the testator, so as

to earn his favour and as to how he was primarily involved in performing the last rites of the testator. So, the version put forth by defendant No. 1

creates doubt.

So, in view of the detailed discussion made herein above, this Court finds no infirmity with the judgment passed by the learned fist Appellate

Court, as the same is result of proper appreciation of the evidence and pleadings and the Will has rightly been held to be not genuine document.

Accordingly, since the findings recorded by learned first Appellate Court are well reasoned and there is no substantial question of law involved in the

instant appeal, the same is dismissed.

The appeal, so also pending application(s), if any, stand(s) disposed of accordingly.