R.S.A. No. 4350 of 2013. Case: Gian Chand Vs Smt. Shiv Dei. Himachal Pradesh High Court
| Case Number | R.S.A. No. 4350 of 2013 |
| Counsel | For Appellant: Lalit Sharma, Adv. and For Respondents: N. K. Thakur Sr. Adv., Naveen Pathania, Advs. |
| Judges | Rajiv Sharma, J. |
| Issue | Specific Relief Act (47 of 1963) - Section 34; Succession Act (39 of 1925) - Section 63 |
| Citation | AIR 2014 HP 54 |
| Judgement Date | March 29, 2014 |
| Court | Himachal Pradesh High Court |
Judgment:
1. This Regular Second Appeal is directed against the judgment and decree dated 31.7.2013 rendered by the Additional District Judge (II), Mandi in Civil Appeal No. 42 of 2001.
2. "Key facts" necessary for the adjudication of this Regular Second Appeal are that respondent-plaintiff (hereinafter referred to as the "plaintiff" for convenience sake) has filed a suit for declaration that the "Will" alleged to have been executed on 1.1.1998 by Narain Lal be declared null and void with consequential relief of permanent injunction restraining appellants-defendants (hereinafter referred to as the "defendants" for convenience sake) and proforma defendants from interfering, alienating and changing the nature of the suit land. According to the plaintiff, land comprised in Khewat Khatauni No.22/23, Khasra No. 546/361 measuring 0-00-96 hectares was owned and possessed by deceased Narain Lal. The land comprised in Khewat Khatauni No. 34/35, Khasra No. 25 measuring 0-04-02 hectares situated in village Matokhar was owned to the extent of ½ share by the deceased Narain Lal and ½ share by the proforma defendant Laskari Ram. The land comprised in Khewat Khatauni Nos. 68/71 to 73, kitas 32 measuring 3-35-54 hectares was owned and possessed by deceased Narain Lal to the extent of ½ share and land contained in Khewat Khatauni No. 69 min/74 to 76, kitas 16 measuring 1-75-24 hectares was owned and possessed by Narain Lal to the extent of ½ share. According to the plaintiff, she is legally wedded wife of Narain Lal, who was working in Bharat Swantantar Cloth Mill, Delhi and was drawing ` 5000/-per month. According to her, Narain Lal has died on 8.6.1998. Narain Lal has never executed "Will" dated 1.1.1998. The Sub-Registrar, Baldwara has refused to register the "Will. The "Will", according to her, was false and fictitious document.
3. The suit was contested by the defendants. Defendants have admitted that plaintiff was legally wedded wife of Narain Lal. According to them, plaintiff had filed a suit for maintenance against Narain Lal. He was dragged into litigation by the plaintiff. They have looked after Narain Lal. The "Will" was duly registered. According to them, plaintiff has also been given share in the "Will".
4. Replication was filed by the plaintiff. Issues were framed by the Sub Judge 1st Class, Sarkaghat, District Mandi on 7.9.1999. He decreed the suit on 21.3.2001. Defendants preferred an appeal before the Additional District Judge (II), Mandi. He dismissed the same on 31.7.2013. Hence, the present appeal.
5. Mr. Lalit Sharma, learned counsel for the appellants, on the basis of the substantial questions of law framed, has vehemently argued that the "Will" Ex.DW-1/A is not shrouded with suspicious circumstances. According to him, the "Will" has been duly executed by late Sh. Narain Lal. It was duly registered. He lastly contended that the courts below have not appreciated the oral as well as documentary evidence led by the parties.
6. Mr. N.K. Thakur, learned Senior Advocate for respondent No.1, has supported the judgments and decrees passed by both the courts below.
7. I have heard the learned counsel for the parties and have gone through the pleadings carefully.
8. The "Will" Ex.DW-1/A is dated 1.1.1998. Narain Lal died on 8.6.1998. It is not in dispute that the plaintiff was legally wedded wife of late Sh. Narain Lal. She has appeared as PW-1. According to PW-1, her husband came from Delhi about 5-6 months before his death. Her husband was ill and was not in sound disposing state of mind. She was not allowed to meet her husband by proforma defendant Laskari Ram.
9. PW-2 Panjku Ram has deposed that Narain Lal started living with his brother Laskari Ram after retirement. Plaintiff wanted to live with her husband, but she was not allowed to live with Narain Lal. Narain Lal was sick before his death. He was weak. He was not mentally fit.
10. According to PW-3 Shiv Ram, Narain Lal remained ill for about 10 months. He was not in sound disposing state of mind. He could not speak properly. His speech could not be understood. He was looked after by the plaintiff.
11. According to PW-4 Munshi Ram, he was called by the plaintiff to go to Panchayat. Pradhan of Panchayat was with him. 10-12 persons were there. Ex.DW-4/A was executed on 21.10.1997. Narain Lal has put his signature on Ex.PW-4/A. Ex.PW-4/A is the copy of compromise arrived at between Narain Lal and plaintiff. Narain Lal had agreed to maintain the plaintiff. He admitted the plaintiff to be his wife. He has never doubted the fidelity of his wife.
12. DW-1 Ramesh Chand has deposed that the "Will" was executed by Narain Lal on 1.1.1998. He was in sound state of mind. He died on 8.6.1998. The plaintiff was living separately. They were looking after him. He has admitted that the plaintiff was living with Narain Lal at Delhi.
13. DW-2 Pratap Singh was Tehsildar-cum-Registrar. The "Will" was registered by him. The "Will" Ex.DW-1/A dated 1.1.1998 was scribed by DW-3 Hem Raj. DW-4 Kashmir Singh and DW-5 Jeet Ram are the marginal witnesses.
14. The "Will" has been registered at Mandi. According to DW-1 Ramesh Chand, the distance between Baldwara and native place of plaintiff is 3 k.ms. The distance between Tarandol and Sarkaghat is 20 k.ms. Defendants have not explained why the "Will" was not registered either at Baldwara or Sarkaghat. It has also come on record that Narain Lal was not in sound disposing mind. Ex.DW-4/A has been signed by Narain Lal in Hindi. However, he has signed the "Will" in English. Narain Lal was identified by DW-6 Netar Singh. He could not explain how he knew Narain Lal. DW-4 Kashmir Singh has admitted that he was marginal witness in as many as 18 to 36 "Will". According to him, he has signed the "Will" first and thereafter it was signed by the testator. The "Will" was to be signed by the testator first and thereafter marginal witness had to sign the "Will". The presence of Narain Lal at the time of execution of "Will" is doubtful. DW-4 Kashmir Singh is a stock witness. It has also come on record that Sub-Registrar, Baldwara has refused to sign the "Will" and in these circumstances, the "Will" was got registered at Mandi. DW-5 Jeet Ram has also not deposed that he put his signatures on the "Will" in presence of testator Narain Lal. Defendants have failed to prove that the "Will" dated 1.1.1998 was executed in accordance with law. Merely that the "Will" is registered will not make it valid. A person will not be taken to a distance of 70 k.ms, if he is suffering from dysentery when he could be taken to a nearby Government Dispensary.
15. Plaintiff is the legally wedded wife of deceased Narain Lal. She being the legally wedded wife was entitled to inherit the property of her husband. Narain Lal died issueless. There is no proof whatsoever that defendants are even closely related to deceased Narain Lal. Plaintiff served Narain Lal at Delhi as per the statement of DW-1 Ramesh Chand. Both the courts below have correctly appreciated the oral as well as documentary evidence led by the parties while coming to the conclusion that the "Will" was shrouded with suspicious circumstances. Defendants were required to lead tangible evidence to remove the suspicion shrouding the "Will".
16. Their Lordships of the Hon'ble Supreme Court in Niranjan Umeshchandra Joshi versus Mrudula Jyoti Rao and others, (2006) 13 SCC 433: (AIR 2007 SC 614 paras 31 and 32) have held that it is for the propounder to remove suspicious circumstances by leading cogent evidence. Their Lordships have further held that it has also to be proved that testator had signed out of his free will having a sound disposition of...
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