Sh. Prem Sagar, and Others vs Smt. Harbansi Devi (deceased) through her legal representatives Sh. Bishan Dass and Sh. Des Raj and Others

Kuldip Singh, Judge

This judgement shall dispose of RSA Nos. 62 of 2000 and 63 of 2000, as common question of facts and law are involved in both the appeals. The parties in the judgement are referred to as plaintiff and defendants.

RSA No. 62 of 2000:

The facts in brief are that Harbansi Devi had filed Civil Suit No. 199/1 of 1988 on 13.9.1988 for declaration that she is joint owner of some of the suit land, exclusive owner on a portion of the suit land as prayed in the plaint, Smt. Jindi had created tenancy in favour of Gulaba husband of the plaintiff of some land as described in the plaint. She has also prayed that Smt. Jindi has executed a registered will on 28.1.1986 in her favour. In alternative, she has prayed that she is owner in possession of some of the suit land and tenant on another portion of the suit land in case she fails to prove will dated 28.1.1986 of Smt. Jindi in her favour and she has become owner of the tenancy land by virtue of H.P. Tenancy and Land Reforms Act. She has also prayed that she is entitled to get her share partitioned. The prayer of permanent prohibitory injunction has also been made.

The suit was contested by defendants No. 1 to 13 by filing joint written statement. In the written statement, they have taken preliminary objections of maintainability, valuation, court fee and jurisdiction, estoppel, non joinder and mis-joinder of necessary parties, cause of action, defendants No. 11, 12 and 16 are minors who have not been impleaded through their natural guardian or court guardian. On merits, the tenancy of Smt. Jindi in favour of Gulaba has been denied. The entries in favourof Gulaba showing him as tenant are wrong. The possession of the plaintiff was denied. It has been stated that Smt. Jindi was the sister of Gulaba and plaintiff is the wife of Gulaba. Smt. Jindi has executed will dated 14.5.1988 in favour of defendants No. 1 to 14, who have inherited the estate of Smt. Jindi. It has been admitted that Smt. Jindi has executed will in favour of plaintiff on 28.1.1986, but the same was revoked by her by executing her last will dated 14.5.1988, which was executed in favour of defendants No. 1 to 14. The defendants No. 1 to 13 denied the claim of the plaintiff on the suit land.

The defendant No. 18(a) Kaulan Devi has also contested the suit by filing written statement. In the written statement, she has taken preliminary objections of maintainability, limitation, jurisdiction and court fee. On merits, it has been denied that Smt. Jindi had created tenancy in favour of Gulaba. She has stated that she is the sole survivor of deceased Smt. Jindi. It has been denied that Smt. Jindi had executed any will in favour of plaintiff. It has been stated that mutation No. 285 is based upon forged will. Smt. Jindi had not executed any will in favour of anyone. She contested the remaining claim of the plaintiff.

The plaintiff filed replications to the written statements of defendants No. 1 to 13 and 18(a) Kaulan Devi and reiterated her stand.

RSA No. 63 of 2000.

The facts in brief are that Smt. Kaulan Devi had filed a suit for declaration that will dated 14.5.1988 is void, forged and mutation No. 285 on the basis of will is wrong, illegal. She has prayed for a decree of possession of the suit land. She also prayed declaration that entries of non-occupancy tenant in favour of Gulaba deceased husband of defendant No.14 (Harbansi Devi) are wrong and illegal.

It has been pleaded that plaintiff is the daughter of Tulsi Ram from first wife, who performed second marriage with Smt. Jindi after the death of mother of the plaintiff. Smt. Jindi brought up the plaintiff till the plaintiff was married. After the death of Tulsi Ram father of plaintiff and husband of Jindi, the suit land, more specifically described in the plaint, was inherited by Smt. Jindi. It has been stated that Smt. Jindi died on 5.6.1988, plaintiff and her sons looked after her alongwith Harbansi Devi. The defendants No. 1 to 13 got mutation No. 285 sanctioned of the land in dispute in their names on the basis of false will dated 14.5.1988 of Smt. Jindi. The defendants No. 1 to 13 took forcible possession of the suit land. The will claimed by defendants No. 1 to 13 is false and forged. Smt. Jindi never executed any will in favour of the defendants. There was litigation between Smt. Jindi and defendants No. 1 to 13. The mutation No. 285 was wrongly sanctioned in favour of defendants No. 1 to 13. Gulaba was never in possession of the land. Smt. Jindi was in possession of suit land during her life time. The entries in favour of Gulaba are wrong and illegal.

The suit was contested by defendants No. 1 to 11 by filing joint written statement. They took preliminary objections of maintainability, jurisdiction, valuation and court fee, locus-standi, non-joinder and mis-joinder of necessary parties, estoppel, cause of action and that defendants No. 12 and 13 are minors and have not been impleaded through their natural guardian, the suit is not maintainable. On merits, it has been stated that Smt. Jindi died on 5.6.1988 in her home where she was residing alone. She was looked after by the defendants, who performed her last rites. The mutation No. 285 has been rightly attested in favour of defendants No. 1 to 13 on the basis of will dated 14.5.1988 of Smt. Jindi. The suit land is in possession of defendants No. 1 to 13. It has been denied that Gulaba husband of Harbansi was non-occupancy tenant over land measuring 18-4 bighas. The suit land is in peaceful possession of defendants No. 1 to 13.

The defendant No. 14 Smt. Harbansi Devi filed separate written statement and took preliminary objections of maintainability, jurisdiction and valuation. It has been stated that defendant No. 14 has also filed similar suit titled Harbansi vs. Shiv Ram and, therefore, both the suits be tried together. Smt. Jindi has executed a registered will in favour of defendant No. 14. It has been pleaded that defendant No. 14 is the sole heir of Smt. Jindi and is owner in possession of property left by Smt. Jindi. Gulaba husband of defendant No. 14 was also tenant of land measuring 18-4 bighas. It has been stated that will in favour of defendants No. 1 to 14 is forged and mutation on the basis of that will has been wrongly attested. The plaintiff has no right, title and interest over the suit land. The prayer has been made for dismissal of the suit. The plaintiff filed replications to the written statements of defendants and reiterated her case.

On the pleadings of the parties, the following issues were framed in Civil suit No. 199/1 of 1988 by the trial court:

Whether the plaintiff and defendants are joint owners in possession of the estate of Smt. Jindi through her will dated 28.1.1986? OPP.

Whether Jindi has created the tenancy in favour of the husband of the plaintiff of land measuring 18-4 bighas as alleged in para No. 16 of the plaint? OPP.

Whether the plaintiff is entitled for the relief of permanent injunction? OPP.

Whether the plaintiff is entitled to seek partition of the suit land as alleged? OPP.

Whether the suit of the plaintiff is not maintainable in the present form? OPD.

Whether the suit of the plaintiff is not properly valued for the purpose of court fees and jurisdiction? OPD.

Whether this court has no jurisdiction to hear and decide the suit? OPD.

Whether the plaintiff is estopped to file the suit by her own acts, conducts, omissions and commissions? OPD.

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

Whether the plaintiff has no cause of action to file the present suit? OPD.

Whether Smt. Jindi revoked her will dated 28.1.1986 and executed last will dated 14.5.1988, if so its effect? OPD.

11-A. Whether the defendant No. 18 is legal successor of the property of deceased Jindi Devi? OPD.

Relief.

The issues No. 1, 4 were answered in affirmative, issues No.2, 3 5 to 11 and 11(a) in negative.

On the pleadings of the parties, the following issues were framed in Civil Suit No. 219/1 of 1988, by the trial court:

Whether the entries as non-occupancy tenant in the name of Sh. Gulaba are wrong and illegal? OPP.

Whether the plaintiff is entitled to a decree for permanent injunction? OPP.

Whether Smt. Jindi executed valid will dated 14.5.1988 in favour of defendants No. 1 to 13. If so, to what effect? OPD.

Whether Smt. Jindi executed valid will dated 13.12.1986 in favour of Sh. Gulaba and defendant No. 14 as alleged? OPD(14).

Whether the suit is not maintainable? OPD.

Whether this court has no jurisdiction to hear and decide the suit? OPD.

Whether the suit is not valued properly for the purpose of court fee and jurisdiction? OPD.

Whether the plaintiff has no right to sue? OPD.

Whether the plaintiff is estopped to file the suit by her own acts and conducts? OPD.

Whether after the death of Shri Gulaba, Smt. Jindi executed another will in favour of defendant No. 14 as alleged? OPD.

Whether the defendants No. 12 and 13 are minors? OPD.

Relief.

The issues No. 1, 10 were answered in affirmative, issues No. 2 to 4, 6 to 9 and 11 in negative and issue No. 5 was partly answered in affirmative and partly in negative.

Both the suits were consolidated vide order dated 6.4.1993. Both the suits were decided by common judgement dated 10.1.1997 by the learned Sub Judge Ist Class, Ghumarwin. The Civil Suit No. 199/1 of 1988 was decreed to the effect that plaintiff is joint owner in possession of the suit land to the extent of the share of Smt. Jindi Devi by virtue of will dated 28.1.1986. Further declaration was given that plaintiff is entitled to get her share partitioned from the suit land through revenue agency. The suit of Kaulan Devi being Civil Suit No. 219/1 of 1988 was also decreed to the extent that will dated 14.5.1988 on the basis of which mutation has been attested in the name of defendants No. 1 to 13 of the share of Jindi in the suit land was declared to be invalid and entry of tenancy qua the part of suit land measuring 18-4 bighas in the name of Gulaba deceased husband of defendant No. 14 was also declared to be wrong and illegal.

Civil Appeal No. 13 of 1997 was filed against the judgement and decree dated 10.1.1997 passed in Civil Suit No. 199/1 of 1988 and Civil Appeal No. 53 of 1997 was filed against the judgement and decree dated 10.1.1997 passed in Civil Suit No. 219/1 of 1988. Smt. Harbansi Devi filed cross-objections in both the appeals with regard to her rejection of claim of tenancy on 18-4 bighas of land. Both the appeals and cross-objections were decided by learned District Judge, Bilaspur by common judgement dated 9.12.1999 and dismissed both the appeals and cross-objections. The RSA No. 62 of 2000 has been filed in case arising out of Civil Suit No. 199/1 of 1988 and RSA No. 63 of 2000 has been filed in case arising out of Civil Suit No. 219 of 1988.

The RSA No. 62 of 2000 has been admitted on the following substantial questions of law:

Whether the will Ex. PW 2/A set up by the respondent No. 1 has not been pleaded nor proved in accordance with law and the genuineness thereof is surrounded by suspicious circumstances having not been prepared in accordance with law?

Whether Ex. DW 2/A could not be ignored merely for the reasons that the same is not prepared by Deed Writer nor the same has been registered?

Whether material admissions about the claim of the appellant in as much as that on the basis of Ex. DW 2/A with respect to land situated at village Bhater Thakur Dass S/O Baldev appellant has been admitted to be owner in possession, therefore the suit was required to be dismissed?

Whether findings recorded by both the courts below are bad on account of mis-reading of pleadings, failure of determination of real point of controversy and due to mis-construction and mis-appreciation of the oral as well as documentary evidence on record?

The RSA No. 63 of 2000, has been admitted on the following substantial questions of law:

Whether will Ex. DW 2/A, having been found to have been executed in favour of the appellant in accordance with law therefore the suit was required to be dismissed on this account?

Whether consolidation of Civil Suit No. 219/1 of 1988 with Civil Suit No. 199/1 of 88 is illegal and wrong especially for the reasons that subject matter of dispute in both the suits and also the parties are different?

Whether findings of both the courts below are vitiated on account of mis-reading and mis-appreciation of the pleadings of the parties as well as evidence on record and also for adopting the procedure for the determination of the controversy contrary to law?

Since the plaintiff failed to establish that she is the legal heir of deceased, Smt. Zindi, though she had no locus standi to assail the will Ex. DW 2/A?

I have heard Mr. Romesh Verma, Advocate, learned counsel for the appellants in both the appeals and Mr. J.R. Poswal, Mr. N.S. Chandel, Advocates, learned counsel for respective respondents and have also gone through the record. It has been submitted on behalf of the appellants that both the courts below have erred in returning the finding that execution of will Ex. DW 2/A has not been proved. The will has been wrongly rejected on the ground of suspicious circumstances. The courts below have wrongly held that will Ex. DW 2/A is not registered; therefore, it is also a suspicious circumstance. It has been submitted that the execution of will Ex. DW 2/A has been proved and this will was the last will executed by Smt. Jindi and will Ex. PW 2/A relied by Smt. Harbansi Devi in her favour stands automatically revoked. The learned counsel for the respondents have submitted that will Ex.DW2/A has not been proved to be executed in accordance with Section 63 of Indian Succession Act, 1925. In addition the will is shrouded by suspicious circumstances. The execution of will Ex. PW 2/A has been admitted by defendants No.1 to 13 in the suit of Smt. Harbansi Devi, therefore, the execution of will Ex. PW 2/A by Smt. Jindi in favour of Harbansi is not in issue. It has been submitted that two courts below have rightly appreciated the material on record. In second appeal, the re-appreciation of the evidence is not permissible. The submission has been made for dismissal of both the appeals.

The substantial questions of law No. 1, 2, 3 and 4 in RSA No. 62 of 2000 and substantial questions of law No. 1, 3 and 4 in RSA No. 63 of 2000 are interconnected, therefore, all of them are taken up collectively for determination.

In the suit filed by Harbansi Devi, she has pleaded that Smt. Jindi has executed will dated 28.1.1986 in her favour. This averment in the plaint has not been denied in the corresponding para of the written statement by defendants No.1 to 13. They have projected the case that after the execution of will dated 28.1.1986 in favour of Smt. Harbansi, Smt. Jindi executed will in favour of defendants No.1 to13 on 14.5.1988, which amounts to revocation of will dated 28.1.1986 Ex. PW 2/A. The question of execution of will Ex DW 2/A dated 14.5.1988 is very much in issue but as far as will Ex. PW 2/A is concerned, it has not been denied by defendants No. 1to 13 that no such will was executed by Smt. Jindi in favour of Smt. Harbansi Devi. The next question is whether defendants No. 1 to 13 have proved the execution of will Ex. DW 2/A in favour of defendants No. 1 to 13 and whether suspicious circumstances, if any, regarding the execution of this will have been removed by defendants No. 1 to13.

The execution of Hindu will is to be in accordance with Section 63 of Indian Succession Act,1925 (for short, the Act), which is as follows:

Execution of unprivileged wills.-Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his will according to the following rules.

(a) The testator shall sign or shall affix his marks to the will, or it shall be signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.

(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has been some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of'' the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

The perusal of section 63 indicates that at the time of execution of will, the will must be signed by the testator in presence of atleast two attesting witnesses and those two attesting witnesses must sign the will in presence of testator. It is not necessary that both the attesting witnesses must be present simultaneously. It is not necessary that for proving the execution of will both the attesting witnesses must appear in the witness box. The execution of the will can be proved even by one attesting witness.

Now, in the present case, it is to be seen whether the execution of will Ex. DW 2/A has been proved in accordance with section 63 of the Act. The will Ex DW 2/A dated 14.5.1988 bears the thumb impressions of Smt. Jindi and signatures of two attesting witnesses, namely Dina Nath and Bansi Ram. The will is allegedly scribed by Jai Lal. DW 2 Jai Lal has stated that he had scribed the will at the residence of Smt. Jindi. Dina Nath and Bansi Ram were present. The will was read over to Jindi, who after accepting its correctness put her thumb mark at four places. Thereafter Dina Nath and Bansi Ram put their signatures on the will in presence of Smt. Jindi.

DW 3 Dina Nath has stated that will Ex. DW 2/A was written in his presence. The will bears his signatures. The will was scribed by Jai Lal on the asking of Jindi, who was in sound disposing mind, Jindi put her thumb mark on the will, which was read over to her. Bansi Ram also put his signatures on the will. The second attesting witness Bansi Ram of will has not been examined. DW 3 Dina Nath has not stated that Smt. Jindi put her thumb impression on the will in his presence as well as in presence of Bansi Ram and on their turn they i.e. he and Bansi Ram put their signatures on the will in presence of Smt.Jindi. He has just stated that Bansi Ram had signed the will, but he has not stated that in what capacity Bansi Ram had signed the will and whether Bansi Ram had signed the will at the time of alleged execution of the will on 14.5.1988 or later on. Thus requirement of section 63 of the Act has not been fulfilled so far execution of the will Ex. DW 2/A is concerned.

In addition, there are suspicious circumstances in the execution of the will. The will is scribed on four pages comprised of three sheets, the first two pages of the will are written on two sheets on one side and last two pages of the will are written on one sheet. The flow of writing is also not uniform, on first sheet the words are more bold and bigger, on second sheet the words have been squeezed so as to adjust the writing above the thumb mark, the first two sheets have one thumb impression each, the last sheet has two thumb impressions on one side only and on third page of the will there is no thumb mark. There is no endorsement on the will that contents of the will have been read over to the testatrix and after accepting the correctness of the will, she has put her thumb mark, admittedly testatrix was illiterate.

The will does not require registration, but it has come on record that Smt. Jindi had earlier executed will dated 28.1.1986 in favour of Smt. Harbansi Devi, which was got registered. This indicates that Smt. Jindi knew the significance of registration, but why the will Ex. DW 2/ A was not got registered by her, that creates suspicion. It has also come on record that Smt. Jindi died on 5.6.1988 approximately 21 days after the will dated 14.5.1988.

It has also come on record that scribe of the will has education just up to 3rd standard. There is nothing on record whether he earlier also had written wills and under what circumstances Smt. Jindi reposed faith on a person having qualification only up to 3rd standard for executing an important document like the will.

The two courts below have considered the evidence regarding the execution and suspicious circumstances surrounding the will Ex. DW 2/A and after due appreciation of the evidence on record both the courts below have recorded concurrent finding of fact that will Ex. DW 2/ A has not been proved to be validly and legally executed by Smt. Jindi in favour of defendants No. 1 to 13. In second appeal, re-appreciation of evidence is not permissible. It is not the case of the appellants that some inadmissible evidence has been relied or material evidence having bearing on the merits of the case has been ignored, no such evidence has been pointed out. In these circumstances, it cannot be said that findings of two courts below on will Ex. DW 1/A are wrong and illegal. The substantial questions of law No.1, 2, 3 and 4 in RSA No. 62 of 2000 and substantial questions of law No. 1, 3 and 4 in RSA No. 63 are decided against the appellants.

It has been submitted that the courts below have wrongly consolidated Civil Suit No.219/1 of 1988 and Civil Suit No. 199/1 of 1988. The subject matter of the dispute in both the suits and parties were different. The suits were consolidated on 6.4.1993 by the trial court. The perusal of order dated 6.4.1993 indicates that application for consolidation of both the suits was filed by Mr. Gian Chand Rattan, Advocate, who represented the defendants No. 1 to 13 in the trial court. The suits were consolidated at the instance of appellants herein; therefore, objection of consolidation of two suits is not available to the appellants. Hence, substantial question of law No. 2 framed in RSA No. 63 of 2000 is also decided against the appellants.

No other point has been urged.

In view of above, both the appeals fail and are dismissed, so also all the pending applications.