Savitri Devi vs Kamla Devi

Sureshwar Thakur, J.—The instant appeal is directed against the judgment and decree, rendered on 1.4.2003, in Civil Appeal No. 118-G/XIII/2001 by the learned District Judge, Kangra at Dharamshala, H.P., whereby, the learned First Appellate Court dismissed the appeal, preferred by the defendants/appellants.

The case of the plaintiffs is that Pritam Singh died intestate on 15.08.1983, leaving behind plaintiffs and defendants as his legal heirs. But, defendants in collusion with the revenue officials obtained mutation of inheritance qua the suit property in their favour, on the basis of a fictitious Will dated 10.07.1993 of Pritam Singh. According to the plaintiffs, Pritam Singh never executed any Will in favour of the defendants. Further, it is claimed that Pritam Singh had no authority to bequeath the suit property by way of a Will, as it was ancestral property in his hand and parties being Rajput are governed by custom in the matters of alienation and succession under which Pritam Singh had no right to alienate the ancestral property without any legal necessity.

Defendants contested the claim of the plaintiffs by taking pleas that Pritam Singh had executed a valid Will in their favour on 10.07.1993 and on basis thereof have become full owners of the suit property. It is also claimed that Bishamber Singh predecessor-in-interest of the plaintiffs has left his parental house thirty years back and never came to his parental house thereafter. He remained in Delhi alongwith his family and thereafter in village Jabbar and never came to village Rori Kori to look after his parents. It is claimed that Pritam Singh was competent to bequeath the suit property in favour of defendants No. 1 to 4. The property was denied to be ancestral or that the parties are governed by custom. Objections qua maintainability, locus standi, estoppel and cause of action were also taken.

By way of re-joinder, plaintiffs re-asserted their case and denied the contrary averments of the defendants.

On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:-

Whether a valid Will dtd. 10.07.1993 has been executed by the deceased Pritam Singh, as alleged? OPD.

If issue No. 1 is not proved in affirmative, whether the Will is result of fraud and undue influence, as alleged? OPD.

Whether the suit is not maintainable? OPD.

Whether the plaintiffs have no locus-standi to sue? OPD.

Whether the suit is not properly valued? OPD.

Whether the plaintiffs are estopped by their act and conduct? OPD.

Relief.

On appraisal of the evidence, adduced before the learned trial Court, the learned trial Court held that the Will Ext. DW-2/A propounded by the defendants No. 1 to 4 was not a legal and valid Will of deceased Shri Pritam Singh. Therefore, that Will is not binding on the plaintiffs and is inoperative against their right to succeed to the estate of late Shri Pritam Singh on the basis of natural succession. The plaintiffs have claimed � share in the estate of Shri Pritam Singh. However, the share claimed by them is in excess of the share permissible to them under law. Pritam Singh had died leaving behind the plaintiffs and defendants as his heirs and successors. The plaintiffs are heirs of the predeceased son of Pritam Singh and last holder of the suit land and after his death they together were entitled to succeed 1/7th share in the suit land. Accordingly, the suit of the plaintiffs was decreed partly. The plaintiffs were declared to be joint owners in possession of the suit land to the extent of 1/7 share and mutation No. 149 dtd. 7.9.93 and subsequent entries recorded in the revenue record on the basis of this mutation which are contrary to the rights of the plaintiffs declared hereinabove were held to be wrong, illegal, null and void. The prayer of the plaintiffs for the relief of permanent injunction was declined for want of any evidence.

In appeal, preferred before the learned first Appellate Court, against the judgment and decree of the learned trial Court, the learned first Appellate Court dismissed the appeal.

Now the defendants/appellants have instituted the instant Regular Second Appeal before this Court, assailing the findings recorded by the learned first Appellate Court, in, its impugned judgment and decree. When the appeal came up for admission on 3.6.2004, this Court, admitted the appeal on, the hereinafter extracted substantial question of law:-

"Whether the Courts below have held the Will in question invalid on such circumstances which do not constitute suspicious circumstances whereas the execution of the Will was duly proved within the frame work of Section 63 of the Indian Succession Act."

Substantial Question of Law No. 1

The deceased testator Pritam Singh executed a testamentary disposition qua the suit property in favour of the defendants. The testamentary disposition is comprised in Ext. DW-2/A. The learned counsel for the defendants vociferously concerted to canvass before this Court that with the attesting witnesses to Ext. DW-2/A having proved the factum of the execution of the Will by the deceased testator in their presence and thereafter in his presence they too having signed it explicitly portrays compliance with the parameters enshrined in Section 63 of the Indian Evidence Act for a Will to be construed to be validly and duly executed. With the aforesaid proof of valid and due execution of Ext. DW-2/A by deceased testator Pritam Singh having emanated from apposite communications existing in the respective depositions rendered by the attesting witnesses to it, he contends that the effect of the purported suspicious circumstances which purportedly surround the execution of Will wane as well as fade.

The learned counsel for the plaintiffs has argued that even if proof was rendered by the attesting witnesses qua the valid and due execution of the Will, nonetheless when a host of suspicious circumstances surround the execution of the Will their testimonies are belittled rather are rendered to be of no probative value especially when no plausible explanation emanates on the part of the defendants-appellants for erasing the effect of suspicious circumstances, which surround its execution.

This Court has heard the learned counsel for the parties on either side and the entire record has been rummaged with incision and care.

The suspicious circumstances which engulf the execution of the Will and would be adverted to hereinafter are neither minimal nor insignificant, so as conclude that they are extremely shaky so as to constitute them to be acquiring no force to overwhelm the depositions of the attesting witnesses to the Will Ext. DW-2/A. The pivotal suspicious circumstance which surrounds the execution of the Will is the factum of existence of cross marks with pencil above the name and address of witness DW-3, the attesting witness to it. The scribe of the Will Ext. DW-2/A deposes that the pencil marks were not embossed by him rather may have been embossed by the Tehsildar. However, the said explanation is tenuous in the face of the Will being unregistered. Consequently, his prevarication renders the said suspicious circumstance to be unexplained, as such, casting a spell of doubt on its execution. Besides, he deposes that he obtained the signatures of the attesting witnesses from his own pen. However, when he concedes the factum of having scribed Ext. DW-2/A with black ink nonetheless when the signatures of the attesting witnesses therein exist in blue ink benumbs his testimony of the attesting witnesses having signed Ext. DW-2/A with his pen carrying a black ink. The above falsity in his deposition adds aggravation to the prevarication to which he has previously resorted to inasmuch as his having falsely deposed qua the attribution to the existence of pencil marks above the name and address of the attesting witness to it. As a corollary, then with aggravated prevarication existing in his testimony also consequently accentuates the magnitude of the suspicious circumstances shrouding the execution of Ext. DW-2/A rendering hence the testimonies of the attesting witnesses to it to be not carrying any credence qua the factum of theirs having been proved it to be validly and duly executed.

The further pivotal circumstances besides the other circumstances which have been highlighted in the judgement and decrees rendered by both the Courts below to be acquiring a preponderant force in dispelling the fact of proof having been lent by the attesting witness to Ext. DW-2/A qua its valid execution, is comprised in the fact of a false explanation having been rendered in Ext. DW-2/A by the testator for his omitting to get the Will registered before the Registrar/Sub-Registrar of documents. The falsity of recital qua the fact of his non registration is attributed to his weak financial position. The imminent falsity of the said recital arises from the admission in the deposition of DW-1 of the deceased testator being an educated person, his having remained Pradhan of Rori Kori Society and owning substantial property. Therefore, even if a testamentary disposition is not required to be compulsorily registered, nonetheless when Ext. DW-2/A records a false recital qua the reason for its non registration the said falsity of recital considered in conjunction with other suspicious circumstances as spelt out and enunciated in the judgement and decree of the Courts below, cumulatively constrain a conclusion that the testamentary disposition comprised in Ext. DW-2/A was omitted to be registered for reasons other than the indigence of the deceased testator. Moreover, the factum of the scribe DW-2 S.A. Minhas subsequently taking to as a counsel espouse the cause of the defendants before the learned trial Court bespeaks of the fact that he had stage managed or had manipulated the execution of Ext. DW-2/A.

In view of the above discussion, I find no merit in this appeal, which is accordingly dismissed and the judgment and decree of the both the Courts below are maintained and affirmed. Substantial question of law is answered accordingly. No costs.