Himachal Pradesh High Court
Shri Nikku Ram Son Of Shri Samundu vs State. He on 29 August, 2022
Bench: Satyen Vaidya
Reportable/Non-reportable
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
ON THE 29th DAY OF AUGUST, 2022
.
BEFORE
HON'BLE MR. JUSTICE SATYEN VAIDYA
REGULAR SECOND APPEAL NO.566 of 2011
BETWEEN:-
SHRI NIKKU RAM SON OF SHRI SAMUNDU,
R/O VILLAGE SAI BRAHMANA PARAGA
RATTANPUR, TEHSIL SADAR, DISTRICT
BILASPUR (H.P.)
....APPELLANT/PLAINTIFF
(BY MR. AJAY KUMAR, SENIOR ADVOCATE WITH MR.
ROHIT ADVOCATE.)
AND
1. SHRI BUDHI RAM (SINCE DECEASED)
THROUGH LEGAL REPRESENTATIVES:-
1(A)SMT. AJUDHIYA DEVI (WIFE)
1(B) SHRI PARKASH CHAND (SON)
1(C) SHRI KISHORI LAL (SON)
1(D)SMT. SARSWATI DEVI (DAUGHTER).
ALL R/O VILLAGE DHABETA NEAR
SWARGHAT, TEHSIL SRI NAINA DEVI JI,
DISTRICT BILASPUR, H.P.
2. SHRI BHURI LAL SON OF SHRI
SAMUNDU C/O SHRI NAROTAM DUTT,
THROUGH LEGAL HEIRS:-
::: Downloaded on - 29/08/2022 20:04:31 :::CIS
...2...
2(A) SMT. DEVAKI SHARMA, WIFE OF
.
LATE SH. BHURI LAL,
2(B) SH. DHEERAJ SHARMA S/O LATE
SH. BHURI LAL,
2(C) SH. HARISH DEEP SHARMA SON
OF LATE SH. BHURI LAL
2(D) SMT. KRTITI SHARMA D/O LATE
SH. BHURI LAL,
ALL RESIDENT OF VILLAGE ANJHI, P.O.
KASUMPATI, TEH AND DISTT. SHIMLA,
H.P.
3. SHRI MUNSHI RAM SO OF SHRI
SAMUNDU,
r R/O VILLAGE SAI
BRAHMNA PARAGA RATTANPUR,
TEHSIL SADAR, DISTRICT BILASPUR,
(H.P.).
4. SMT. DEO DEVI WIFE OF LATE SHRI
SAMUNDU R/O VILLAGE SAI BRAHMNA
PARAGA RATTANPUR, TEHSIL SADAR,
DISTRICT BILASPUR, (H.P.).
....RESPONDENTS/DEFENDANTS.
(BY MR. BHUPENDER GUPTA,
SENIOR ADVOCATE WITH MR.
JANESH GUPTA, ADVOCATE)
RESERVED ON: 25th AUGUST, 2022.
DECIDED ON: 29th AUGUST, 2022.
This regular second appeal coming on for
hearing this day, the Court passed the following: -
::: Downloaded on - 29/08/2022 20:04:31 :::CIS
...3...
JUDGMENT
.
The appellant assails judgment and decree
dated 28.09.2011 passed by learned District Judge,
Bilaspur in Civil Appeal No. 22 of 2009, whereby the
judgment and decree dated 30.04.2009 passed by
learned Civil Judge (Senior Division), Bilaspur, in Civil Suit
No. 106-1 of 2002, dismissing the suit of the plaintiff was
affirmed.
2. The parties herein shall be referred by the
same status as they held before the learned trial Court.
The appellant herein is the plaintiff and respondents No.1
and 2 are the defendants and respondents No.3 and 4 are
the proforma defendants.
3. Plaintiff filed a suit seeking declaration to the
effect that plaintiff and proforma defendants were owner
in possession of the suit land on the basis of Will dated
16.03.1999 executed by late Shri Samundu with further
declaration to declare the Will dated 03.04.1999 of Shri
Samundu as null and void on the ground that Shri
...4...
Samundu did not execute the said Will with free mind or
.
without pressure. A decree of permanent prohibitory
injunction was also sought against the defendants from
causing any interference in the suit land and the house
situated thereon. In the alternative a decree of
possession, in case of dispossession of the plaintiff during
the pendency of the suit was also prayed for.
4. As per plaintiff, late Shri Samundu was father
of plaintiff, defendants No.1 to 3 and husband of
proforma defendant No.4. Defendant No.2 was stated to
be son of late Shri Samundu from his second wife Smt.
Devo i.e. proforma defendant No.4. Plaintiff, defendants
No.1 and 3 were stated to be the sons of late Shri
Samundu from his first wife namely Smt. Durgi. Plaintiff
claimed that late Sh. Samundu had executed a Will dated
16.03.1999 bequeathing his properties in favour of
plaintiff and proforma defendants. The Will was also
claimed to be registered with Sub Registrar, Bilaspur, on
the same day i.e. on 16.03.1999. The plaintiff also
...5...
averred that the original Will executed by late Shri
.
Samundu on 16.03.1999 was destroyed by defendant
No.1 by putting the same on fire. Plaintiff could retrieve
some burnt pieces of the document.
5. According to the plaintiff, the defendants got
mutation No.256 attested after death of Shri Samundu on
25.01.2001 on the basis of another Will dated 03.04.1999
allegedly executed by late Sh. Samundu. The Will dated
03.04.1999 was alleged to be result of fraud, mis-
representation and undue influence. Plaintiff pleaded the
date of knowledge about executed of Will dated
03.04.1999 to be after attestation of mutation No.256.
6. Written statement was filed on behalf of the
defendants. Preliminary objections as to maintainability,
lack of cause of action, estoppel etc., were raised. On
merits, it was specifically pleaded that Will dated
16.03.1999 had been revoked by late Shri Samundu by
executing his last Will dated 03.04.1999. It was also
alleged that the Will dated 16.03.1999 was result of
...6...
fraud, mis-representation and undue influence. On the
.
basis of subsequent Will of late Shri Samundu, dated
03.04.1999, the defendants claimed themselves to be
owner in possession of the suit land. As per defendants,
late Shri Samundu had thrown the original Will dated
16.03.1999 into fire, when he was made to understand
by his grandson Shri Prakash Chand that his two sons had
been disinherited under the Will dated 16.03.1999. The
allegations of Will dated 16.03.1999 being burnt by
defendant No.1 were denied.
7. On the basis of pleadings of the parties,
following issues were framed: -
1. Whether deceased Samundu executed a valid
and legal "Will" dated 16.03.1999 in favour of
the plaintiff and proforma defendants, as
alleged? OPP
2. Whether the plaintiff and proforma defendants
are owners in possession of the suit land, as
alleged? OPP.
3. Whether the "Will" dated 03.04.1999 executed
by Samundu in favour of the parties to the suit
is valid and legal "Will"? OPD
4. Whether the suit is not maintainable? ...OPD
...7...
5. Whether the plaintiff has no cause of action, as
alleged? OPD.
.
6. Whether the plaintiff is estopped from filing the
present suit by his act and conduct? OPD.
7. Relief.
8. Both the learned Court below held both the
Wills dated 16.03.1999 propounded by the plaintiff and
03.04.1999 propounded by the defendants as validly
executed Wills, however, the suit of the plaintiff was
dismissed on the ground that Will dated 03.04.1999
being later in time impliedly revoke the earlier Will dated
16.03.1999.
9. The instant appeal was admitted on
19.04.2012 on the following substantial questions of law:
-
1. Whether the findings of the Courts below are a
result of complete misreading of pleadings,
evidence and the law as applicable to the facts
of the case and particularly documents
Ex.PW2/A, Ex.DW2/A and Ex. PX and statements
of DW3, DW4, DW5 and DW6 and as such
palpably erroneous and illegal and if so to what
effect?
2. Whether in the face of the oral and
documentary evidence produced in the case the
Courts below were justified in holding Ex.DW2/A
...8...
as a legal and valid Will of late Shri Samundu by
discarding the earlier Will PW2/A?
.
10. I have heard Mr. Ajay Kumar, Senior Advocate
for the plaintiff and Mr. Bhupender Gupta, Senior
Advocate for the defendants and have also gone through
the entire records carefully.
11. Shri Ajay Kumar, learned Senior Advocate,
representing the plaintiff has contended that both the
learned Courts below have wrongly, illegally held the Will
dated 03.04.1999 (Ex.DW5/A) to have been proved in
accordance with law. He has contended that the original
document i.e. Will dated 03.04.1999 was not produced on
record and in absence thereof the will Ex.DW5/A cannot
be said to have been proved.
12. On the other hand, Shri Bhupender Gupta,
learned Senior Advocate, representing the defendants
submitted that Will Ex.DW5/A was duly proved on record.
DW-2 Buleshwar Dutt produced the record of registration
of the Will dated 03.04.1999 on the basis of which a
...9...
photo copy of the said document was proved on record
.
as Ex.DW5/A. He further contended that it was the Will
dated 16.03.1999 propounded by the plaintiff that was
not proved in accordance with law. Admittedly, the
original of Will dated 16.03.1999 was alleged to have
been destroyed. In the absence of the original, Will
Ex.PW2/A dated 16.03.1999 being merely a copy could
not be held to be proved in accordance with law.
13. Learned First Appellate Court and the learned
Trial Court, both have returned the concurrent findings of
fact that plaintiff has been able to prove valid execution
of Will Ex.PW2/A and defendant No.1 has also been able
to prove execution of Will Ex.DW5/A in accordance with
law. Further, Will Ex.DW5/A being later in time has been
held to have impliedly revoked the earlier Will, Ex.PW2/A,
therefore, the mutation No. 256 recorded on the basis of
second Will of late Shri Samundu, Ex.DW5/A has been
upheld.
...10...
14. Though the findings returned by both the
.
courts on Issue No.3 are concurrent, but on detailed
examination of material on record such findings need
interference and cannot be sustained for reasons detailed
hereafter. Such findings are clearly perverse as these do
not confirm to the applicable provisions of law.
15. As per the case of the defendants, criminal
proceedings were initiated on the complaint of one Budhi
Ram s/o Sihnu Ram, whose name was mentioned as
identifier of the testator in Will Ex.DW5/A. The allegation
was that the signatures of identifier on said Will were
forged. The original Will was stated to be taken into
possession by the police during the investigation of the
case. Challan was presented in the Court and the original
Will was also stated to be made part of the report under
Section 173 of the Code of Criminal Procedure.
Defendants produced Shri Buteshwar Dutt, Criminal
Ahlmad, court of Judicial Magistrate 1 st Class, Bilaspur,
who had brought the summoned record i.e. case file No.
...11...
7/1 of 2004, titled as Budhi Ram versus State. He
.
deposed that the original Will of Samundu Ram was
annexed in the file. As per this witness Ex.PW2/A was
the certified copy of the Will of Samundu Ram and was
correct according to the original. In this manner, a copy
of Will dated 03.04.1999 of Samundu Ram was placed on
record and initially exhibited as Ex.PW2/A, later on
converted to Ex.DW5/A. Perusal of document Ex.DW5/A
reveals that a certified copy of the document was
obtained from the file of case No. 7/1 of 2004, titled as
Budhi Ram vs. State of Himachal Pradesh, pending before
the learned Judicial Magistrate 1st Class, Bilaspur.
16. Record further reveals that original Will dated
03.04.1999 was never produced on record. The will
dated 03.04.1999 was stated to be a registered
document for which witnesses DW-3 Uma Gupta and DW-
4 Pratap Singh were examined. DW-3 was the registration
clerk in the office of Sub Registrar Bilaspur. She produced
the summoned record i.e. a copy of Will of Samundu Ram
...12...
pasted in the Register No. 76, Book No.3, Volume No.106,
.
page 47, dated 03.04.1999. After the deposition, DW-3
had taken back the aforesaid record brought by her. No
effort was made to get the original record, containing
pasted copy of the Will dated 03.04.1999, retained in the
Court. Even a certified copy of Will produced by DW-2
Buteshwar Dutt was not compared with the original
produced by DW-3.
17. DW-4 was the Sub Registrar, who had
registered Will dated 03.04.1999 at Village Chehari. This
witness verified the copy of Will Ex.PW2/A to be true copy
of original Will found in the record produced by DW-3.
Noticeably, DW-3 and DW-4 were examined on the same
day i.e. on 28.12.2004.
18. The original Will was in the records of case file
No. 7/1 of 2004 of the court of Judicial Magistrate 1 st
Class, Bilaspur, but no effort was made to place the
original record of the Will on the file before the learned
trial Court. The second copy of the Will pasted in the
...13...
relevant register of Sub Registrar, Bilaspur, was also not
.
retained in the Court. Resultantly, the entire reliance
was placed on a copy of Will exhibited as Ex.DW5/A.
Admittedly, the defendants had not sought any
permission of the Court to prove the Will dated
03.04.1999 by leading secondary evidence. That being
so, the question arises as to whether in absence of
original of Will dated 03.04.1999, the courts below were
justified in holding the execution of Will dated
03.04.1999, in accordance with law? The rules of
evidence contained in the Indian Evidence Act, 1872, (for
short "Act") provide for the mode and manner for proving
a fact. As per Section 61 of the Act, the contents of
documents may be proved either by primary or by
secondary evidence. Primary evidence, as per Section 62
of the Act means the document itself produced for the
inspection of the Court and secondary evidence as per
Section 63 of the Act means and includes (1) certified
copies given under the provisions of Section 76 of the
...14...
Act; (2) copies made from the original by mechanical
.
processes which in themselves insure the accuracy of
the copy, and copies compared with such copies; (3)
copies made from or compared with the original; (4)
counterparts of documents as against the parties who did
not execute them; (5) oral accounts of the contents of a
document given by some person who has himself seen it.
Section 64 of the Act mandates that the documents must
be proved by primary evidence except in the cases
mentioned thereafter. Section 65 of the Act provides for
conditions in which secondary evidence can be allowed to
be lead by the Courts. In the facts of the instant case
neither any case was made out by the defendants for
leading secondary evidence nor any permission was
sought in that behalf from the Court. In such
circumstances, the document i.e. Will dated 03.04.1999
cannot be said to be proved as the primary evidence
(original Will) was not produced on record.
...15...
19. Plaintiff had specifically alleged the Will dated
.
03.04.1999 to have been procured by fraud, mis-
representation and force etc. Meaning thereby that the
due execution of Will by late Shri Samundu Ram was not
admitted. Voluntary execution of a Will without any
fraud, mis-representation and coercion is sine qua non for
proving the due execution of a Will.
r Section 68 of the
Indian evidence Act reads as under:-
"68. Proof of execution of document
required by law to be attested.--If a
document is required by law to be attested, it
shall not be used as evidence until one
attesting witness at least has been called for
the purpose of proving its execution, if there
be an attesting witness alive, and subject to
the process of the Court and capable of giving
evidence:
[Provided that it shall not be necessary to
call an attesting witness in proof of the
execution of any document, not being a Will,
which has been registered in accordance with
the provisions of the Indian Registration Act,
1908 (16 of 1908), unless its execution by the
person by whom it purports to have been
executed is specifically denied.]
...16...
The Will is required to be attested by two witnesses. As
.
per Section 63 of the Indian Succession Act, 1925, a
specific mode for execution of Will has been provided
therein. Thus, for proving the execution of Will at least
one of the attesting witnesses, if alive, is required to be
produced for proving the execution of Will. In this case,
defendants have examined DW-5 as attesting witness of
Will dated 03.04.1999. Incidentally, at the time of
examination of DW-4 as witness before the learned trial
Court, the original document i.e. Will dated 03.04.1999
was not shown to him as the same was not available at
the time of his examination. In the absence of original
document, the requirement of Section 68 of the Act
cannot be said to be fulfilled as the attesting witness
could depose about the execution of the document
placed before him, only when the defendants had placed
on record the original thereof. When the defendants had
failed to prove the Will dated 03.04.1999 by not
producing the original document in the record, its due
...17...
execution cannot be said to have been proved by merely
.
producing an attesting witness and confronting him with
only a copy of the document that too without seeking
permission to lead secondary evidence. The provisions
of Section 68 of the Act are mandatory, so much so that
even in the cases of a registered Will no exception is
carved out as
r is available with respect to other
documents required to be attested by law.
20. Thus, I have no hesitation to hold that neither
the Will date d03.04.1999 propounded by defendant No.1
was proved to exist nor its due execution was proved in
accordance with law. Contrary findings recorded by both
the learned Courts below thus needs interference being
palpably wrong. Undoubtedly, such findings have been
recorded by ignoring the provisions of law which renders
such findings perverse.
21. Coming to the Will propounded by plaintiff,
Ex.PW2/A, admittedly the original thereof was not
available. Plaintiff specifically pleaded that the original
...18...
Will was destroyed in fire by defendant No.1, whereas
.
defendant No.1 submitted that the original Will was
thrown in fire by late Shri Samundu himself. Be that as it
may, the fact remains that the original Will dated
16.03.1999 was not available. Plaintiff moved an
application dated 17.11.2003 seeking leave of the Court
to prove the Will dated 16.03.1999 by leading secondary
evidence. Learned trial Court allowed the application of
plaintiff with a prayer to lead secondary evidence on
17.11.2003 itself as defendants had pleaded no objection
to the grant of prayer made in the aforesaid application.
The plaintiff was allowed to lead secondary evidence.
22. Plaintiff examined PW-2 Uma Gupta,
Registration Clerk from the office of Sub Registrar,
Bilaspur. She produced the summoned record i.e. the
pasted copy of Will dated 16.03.1999, pasted in Book
No.3 Volume 80. This document was stated to have been
registered at serial No.63. A photo copy of the Will was
exhibited as Ex.PW2/A and was verified to be correct
...19...
copy of the original. This witness was not cross-
.
examined on behalf of the defendants. PW-2 had
appeared as witness before the learned trial Court on
25.05.2004. Plaintiff examined PW-4 Brij Lal and PW-5
Daya Ram as attesting witnesses of the Will. PW-4 and
PW-5 were also examined on 25.05.2004 and they
deposed as to the execution of the Will by Samundu Ram
on the basis of pasted copy of Will dated 16.03.1999
produced in the Court by PW-2. The pasted copy of the
Will in the records of Registrar is also the primary
evidence as per explanation (1) to Section 62 of the
Indian Evidence Act which provides that where a
document is executed in several parts each part is
primary evidence of the document. For registration
purposes two copies of Will are prepared. Both copies are
signed in original by the testator as well as by the
attesting witnesses. In any case, plaintiff was allowed to
lead secondary evidence and he had proved the
document in accordance with law. Its due execution was
...20...
also proved by PW-4 and PW-5 being its attesting
.
witnesses. Both the learned Courts below have
concurrent held the Will Ex.PW2/A to have been duly
proved and in view of the above discussion no
interference is required in such findings.
23. Both the substantial questions of law are
answered accordingly.
24. In view of the aforesaid analysis the appeal is
allowed. Judgment and decree dated 28.09.2011 passed
by learned District Judge, Bilaspur in Civil Appeal No. 22
of 2009, whereby the judgment and decree dated
30.04.2009 passed by learned Civil Judge (Senior
Division), Bilaspur, in Civil Suit No. 106-1 of 2002,
dismissing the suit of the plaintiff was affirmed, is set
aside. Issue No.1 is held proved, whereas issue No.3 is
held not proved. The findings returned on all other issues
do not require interference. Accordingly, the suit of the
plaintiff is decreed. The Will dated 16.03.1999 Ex.PW2/A,
executed by late Shri Samundu Ram is held to be legal
...21...
and valid Will and the plaintiff and proforma defendants
.
are held to be owner in possession of the suit land on the
basis of aforesaid Will of late Shri Samundu Ram. The
defendants are restrained from causing any interference
in the ownership and possession of the plaintiff and
proforma defendants qua the suit land. Decree sheet be
prepared accordingly. Pending applications, if any, shall
also stand disposed of.
(Satyen Vaidya)
Judge
29th August, 2022.
(jai)
