Late Shri Harkishan Singh Thru Lr ... vs Shri Ram Prakash Dua & Ors.
2011 Latest Caselaw 4196 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No.18/2010

%                                        29th August, 2011
LATE SHRI HARKISHAN SINGH THRU LR
SHRI GURJEET SINGH & ORS.                      ...... Appellants
                     Through: Mr. V.Shrivastava, Adv.

                          VERSUS

SHRI RAM PRAKASH DUA & ORS.                             ...... Respondents

                   Through:            Mr. Inderjeet Swaroop, Adv.
                                       for the respondent no.1.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    1.   Whether the Reporters of local papers may be
         allowed to see the judgment?

    2.   To be referred to the Reporter or not?

3. Whether the judgment should be reported in the Digest?

VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of this Regular Second Appeal is to

the impugned judgment dated 13.10.2009 of the Appellate Court, and by

which judgment, the Appellate Court dismissed the appeal of the

appellants and confirmed the judgment and decree dated 2.5.2006 passed

by the Trial Court decreeing the suit for possession with respect to the suit

property admeasuring 73 square yards, bearing municipal no. A-547,

Shastri Nagar, Sarai Rohilla, Delhi.

2. The facts of the case are that one Sh. Asa Ram Dua, father of

the plaintiff owned a property admeasuring 150 square yards in khasra

no.484/17, Village Sidhore Kalan, Dabur Wala, Delhi jointly with his brother

Sh. Jiwan Dass. After partition between Sh. Asa Ram Dua and Sh.Jiwan

Dass, Sh. Asa Ram Dua became the owner of 73 square yards of the

property, i.e. the subject property. Sh.Asa Ram Dua left behind the

plaintiff, Ram Prakash Dua as a son. Sh. Asa Ram Dua also had another

son, Sh. Sunder Lal Dua and two daughters, Smt. Ram Pyari and Smt.

Kamlesh Sachdeva. Sh.Sunder Lal Dua and two daughters Smt. Ram Pyari

and Smt. Kamlesh Sachdeva are said to have executed a relinquishment

deed dated 17.11.1995 in favour of the plaintiff/respondent no.1.

3. The case which was set up in the plaint was that the plaintiff

was the legal heir of Sh.Asa Ram Dua and therefore entitled to possession

of the suit property from the original defendant one Sh. Harkishan Singh,

who is now represented by his legal heir (namely the appellant no.1) on

the ground that late Sh. Harkishan Singh was the brother of Smt.Raj Kaur

@ Raj Rani, and Smt. Raj Kaur @ Raj Rani was the wife of one of the son,

Sh.Sunder Lal Dua of Sh. Asa Ram Dua. It was alleged that on the death of

his sister Smt. Raj Kaur @ Raj Rani, Sh. Harkishan Singh had come into the

possession of property and which was being illegally held on. Since

ownership in the property was claimed by the respondent no.1/plaintiff on

the ground that Sh. Harkishan Singh has no right to the property, the relief

of possession was claimed.

4. When the written statement was filed, it transpired that

Sh.Harkishan Singh was claiming ownership of the property by virtue of

the Will dated 9.9.1983 allegedly executed by Sh. Asa Ram Dua in favour

of Smt. Raj Kaur @ Raj Rani (wife of his son Sh. Sunder Lal Dua) and the

alleged Will dated 10.6.1995 of Smt. Raj Kaur @ Raj Rani executed in

favour of Sh. Harkishan Singh. The defendant, Sh. Harkishan Singh stated

that he had already sold the property vide notarized documents being the

agreement to sell, power of attorney, etc. dated 4.12.1995 to one Sh.

Richpal Singh. It transpires that the property has thereafter changed

various hands, though unfortunately none of the counsels for either of the

parties could assist the Court or throw any light whether as to such

transfers were made before filing of the suit or after filing of the suit. All

the subsequent transferees were thereafter impleaded as defendants in

the suit because the original defendant Sh. Harkishan Singh had

transferred the property to Sh. Richpal Singh who in turn transferred the

property to Smt. Archana Batra and by various subsequent

documentations, ultimately, the property presently is said to be vested in

Smt. Misla Devi and Sh. Ashit Babu Satija, defendants no. 4 and 6.

5. The only issue which arose before the Court below, and which

is also an issue which is argued before me is as to whether Sh. Asa Ram

Dua has executed his Will dated 9.9.1983 in favour of Smt. Raj Kaur @ Raj

Rani wife of Sh. Sunder Lal Dua. If this Will was not a genuine Will, then,

Smt. Raj Kaur @ Raj Rani could not have executed her Will dated

10.6.1995 in favour of her brother Sh. Harkishan Singh who would

therefore have no right to transfer the property to the subsequent

transferees, the other defendants in the suit.

6. The Appellate Court has given cogent and convincing reasons

for holding that Will dated 9.9.1983 is not a genuine Will and that the

same is shrouded in suspicious circumstances. Paras 11 to 15 of the

impugned judgment of the Appellate Court are relevant and read as under:-

"11. Late Asa Ram Dua, admittedly, disinherited his two sons and two daughters and bequeathed the suit property to Smt. Raj Kaur @ Raj Rani, his daughter-in-law vide the alleged Will dated 9.9.1983. Admittedly, there is no explanation whatsoever, as to why late Shri Asa Ram considered it fit or necessary to disinherit his own bold relations-the sons and daughter. In normal circumstances, executant of a Will gives or assigns the reasons when he/she takes such a drastic decision. May be Smt. Raj Kaur @ Rajrani was serving the executants late Shri Asa Ram, but at the same time, there is nothing on record to suggest that he had any dispute or difference(s) or any strained relations with his own sons and daughters. There is also nothing on record to suggest that he was unhappy with their conduct towards him. The absence of any explanation for disinheritance of his own children, therefore, does raise a question mark. Further, even if late Shri Asa Ram was more sympathetic towards

Smt. Raj Kaur @ Rajrani, because his son Sunder Lal Dua had got remarried and was staying with his second wife, he (late Asa Ram Dua) could have given a right to her for her lifetime only.

12. Admittedly, Smt. Raj Kaur @ Raj Rani or Harkishan Singh did not disclose the execution of the said Will by late Asa Ram to any of their relations. Admittdely, Harkishan Singh was aware of the said Will and in the House-Tax records of MCD, his name was shown as PPO and, therefore, he was under obligation to produce the said Will before the MCD authorities when Respondent/Plaintiff moved an application for mutation of his name in the records. This failure on the part of Harkishan Singh also raises another question mark on the Will in question.

13. Another important fact is regarding the attestation of the Will. One attesting witness, namely, Gopal Dass, has been examined as DW1. He has given his address in the Will as 3/54, Rohtak. In his cross-examination, he testified that he had stayed/resided in Rohtak from 1947 to 1982. He also admitted in his cross-examination that he was not residing in Rohtak on 9.9.1982 and was at Delhi only. He has admitted that he sold his house at Rohtak in the year 1983 or 1984 and that his sons were working with the brothers of Defendant Harkishan Singh. He has given no explanation as to why he gave his address as that of Rohtak on 9.9.1983, when in fact he was residing in Delhi at that time. He admitted in his further cross-examination that Asa Ram had not called him on 9.9.1983 and he went on his own to his shop in the afternoon. There is just no reason or explanation as to why he went to his shop on that day. DW Gopal Dass claimed that late Asa Ram had asked him to be a witness to the Will, that day only. There is no explanation as to whether Asa Ram knew that he (Gopal Dass) was coming to meet him and whether he met Asa Ram on that day only and if so, at what place. It is interesting to observe that Gopal Dass had last met Asa Ram about two years ago (before 9.9.1983) in a Kirya. It is also interesting to observe that Gopal Dass did

not know when lat Asa Ram died. He did not attend his cremation also. He has testified that he came to know about late Asa Ram's death after three or four years. It, therefore, appears very strange that Gopal Dass, who was neither close to Asa Ram nor was called by Asa Ram and had last met Asa Ram two years before that day, yet he happened to become a witness to the execution of the Will. Further, DW Gopal Dass has admitted that his signatures on the Will dated 9.9.1983 and Affidavit in the Court differ. Though, he tried to explain that there was difference in signatures due to age factor but the same is not a convincing explanation. No doubt, technically an attesting witness can prove the execution of a Will, but when there are question marks regarding the circumstances in which such a person happens to be a witness, doubt is bound to be created and that is precisely the reason why Trial Court considered it a suspicious circumstance.

14. It is also observed that Smt. Raj Kaur @ Rajrani executed the Will on 10.6.1995. In her Will she has not described as to how shw has become owner of the suit property. It, therefore, appears that there was some deliberate attempt, to not to disclose the Will dated 9.9.1983. Further, the Will dated 9.9.1983 was executed just four months prior to death of Asa Ram, and the Will dated 10.6.1995 was executed by Smt. Raj Kaur @ Rajrani just two months prior to her death. These circumstances cannot be a mere coincidence. Neither Asa Ram nor Smt. Raj Kaur @ Rajrani could have known that they were going to die shortly thereafter. There is thus a big question mark about the time and period of execution of the said two Wills. Another important circumstance is that Shri Harkishan Singh, after becoming the owner of suit property on the basis of Will dated 10.6.1995 did not lose much time in selling/transferring the same. There must have been some reason in transferring/selling the suit property in haste (within six months of the Will & four months of the death of Smt. Raj Kaur @ Rajrani). Apparently, Harkishan Singh apprehended trouble from the sons and daughters of late Shri Asa Ram.

15. Interestingly, Smt. Raj Kuar @ Rajrani in her Will has not stated about her legal heirs. She has, also, not mentioned about her other brothers and the reason, why she preferred only Harkishan Singh to her other b rother. This is also a major suspicious circumstance, particularly because Harkishan Singh did not take long to dispose of the property. He sold the property on 4.12.1995 i.e. within four months of the death of Smt. Raj Kaur @ Rajrani."(underlining added)

7. The aforesaid paragraphs show that late Sh. Asa Ram Dua

gave no reason to disinherit his other son/plaintiff and daughters namely

Smt. Ram Pyari and Smt. Kamlesh Sachdeva. The Trial Court has rightly

observed that merely because one of the relative may be closer than other

relatives, is in itself is not a sufficient reason to disinherit the other close

relatives, i.e. son and daughters with whom there were no bad relations.

The Trial Court has also referred to the short period of time within which

the Wills of Sh. Asa Ram Dua and Smt. Raj Kaur @ Raj Rani surfaced after

the death of Smt. Raj Kaur @ Raj Rani and the property in question was

sold by Sh. Harkishan Singh on 4.12.1995, i.e. within a few months of

death of Smt. Raj Kaur @ Raj Rani on 15.8.1995. In addition to the

aforesaid facts, I may note that I put a query to counsel for the appellants

that if really Smt. Raj Kaur @ Raj Rani had become the owner of the

property by virtue of the Will dated 9.9.1983 of Sh. Asa Ram Dua, then

why was not the Will propounded (for a huge period of over ten years from

10.1.1984, when Asa Ram Dua is stated to have died, till 15.8.1995 when

Smt. Raj Kaur @ Raj Rani is stated to have expired) before any public

authority during lifetime of Smt. Raj Kaur @ Raj Rani and why no mutation

was applied for on the basis of the Will dated 9..9.1983 in favour of Smt.

Raj Kaur @ Raj Rani, however, no answer was forthcoming.

8. The Trial court has also noted that the attesting witness to the

Will was one Sh. Gopal Dass who deposed as DW1 and who deposed that

he only had a casual relation with Sh. Asa Ram Dua and in fact Sh. Asa

Ram Dua had not called him on 9.9.1985 when the Will was executed. The

only meeting of the witness, Sh. Gopal Dass with Sh. Asa Ram Dua was in

a kirya about two years before the alleged execution of the Will dated

9.9.1983. Sh. Gopal Dass did not know when Sh. Asa Ram Dua died and

nor did he attend his cremation. These facts according to the Trial Court

cast a doubt on the validity of the Will. Even in the Will of Smt. Raj Kaur @

Raj Rani dated 10.6.1995, it is not mentioned as to how she had become

owner of the property, the object being not to disclose the Will dated

9.9.1983 of Sh.Asa Ram Dua in her favour.

9. Learned counsel for the appellants argued that the Trial Court

has wrongly observed the fact that Will is not registered and is not on

stamp paper is a suspicious circumstance and also that there is no finding

with regard to the lack of genuineness of Will dated 9.9.1983 and thus the

impugned judgment is liable to be set aside. Of course, I do agree with

this argument that the conclusion of the Appellate Court contained in para

17 of the impugned order of the Will being doubtful because it is not

registered or stamped is not correct, however, there are other convincing

reasons given by the Appellate Court in paras 11 to 15 of the impugned

judgment which have already been reproduced above, and which in my

opinion are sufficient grounds to hold lack of genuineness of the Will dated

9.9.1983 allegedly executed by Sh. Asa Ram Dua. It is obvious that the

Wills, dated 9.9.1983 of Sh. Asa Ram Dua and 10.6.1995 of Smt. Raj Kaur

@ Raj Rani, were fabricated by Sh. Harkishan Singh after the death of his

sister Sh. Raj Kaur @ Raj Rani, so as to misappropriate the suit property,

and which property he sold within a few months of the death of Smt. Raj

Kaur @ Raj Rani.

10. Learned counsel for the appellant additionally argued that the

plaintiff/respondent no.1 in his cross-examination admitted that Sh.

Harkishan Singh was the owner and therefore on this ground itself it

should be held that the suit was liable to fail because of Sh. Harkishan

Singh being admitted as the owner, the suit for possession cannot lie. The

argument appears to be interesting only at the first blush, inasmuch as,

the witness, i.e. plaintiff/respondent no.1 was about 72 years when he

deposed, and his cross-examination took place in Hindi which was

thereafter translated to English and it is possible that in translation

something had been left amiss and possibly the suggestion to which the

alleged admission seems to have been given actually was that „After the

death of Raj Kaur, Harkishan Singh has claimed to be the owner‟. After all

the suit which was being contested to the hilt at every stage, it cannot be

said that the respondent no.1/plaintiff had just in one line of the cross-

examination sought to concede the complete case of the

defendant/appellant. I may also note that out of the 5 appellants in the

Appellate Court, only 3 have filed the present appeal and other 2

appellants in the first Appellate Court have been sued in this Court as

respondents, who have not filed any appeal against the impugned

appellate order dated 13.10.2009.

11. Issues of appreciation of evidence are not issues which can

create a substantial question of law for the purpose of Section 100 of the

CPC. Before I proceed to entertain a second appeal under Section 100

CPC, a substantial question of law must arise. In every case there are

various factors/pros and cons in favour of one party and other factors/pros

and cons in favour of other party. After assimilating all the facts, a Civil

Court decides the case on balance of probabilities. In my opinion, the

balance of probabilities show that the Wills of Sh. Asa Ram Dua dated

9.9.1983 and Smt. Raj Kaur @ Raj Rani dated 10.6.1995 cannot be said to

be genuine Wills.

12. In view of the above, no substantial question of law arises.

Dismissed.

AUGUST 29, 2011                               VALMIKI J. MEHTA, J.
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