Sh. Dala Ram vs Sh. Dhani Ram
2022 Latest Caselaw 2656 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                   ON THE 6th DAY OF MAY, 2022




                                                           .

                              BEFORE

           HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN





               REGULAR SECOND APPEAL No. 201 of 2019

    BETWEEN:-





     SH. DALA RAM
     S/O LATE SH. BUDH RAM S/O SH. GUITU,
     R/O VILLAGE BHALI,
     PARGNA LACHHRANG, P.O. SUBATHU,
     TEHSIL KASAULI, DISTRICT SOLAN, H.P.                ....APPELLANT


     (BY MR. V.S. CHAUHAN, SENIOR ADVOCATE
      WITH MR. RAJUL CHAUHAN, ADVOCATE)

     AND


    1. SH. DHANI RAM,
    2. SH. RIKHI RAM,
       BOTH SONS OF LATE SH. BUDH RAM
       S/O SH. GUITU, S/O SH. LUTU,




       R/O VILLAGE BHALI, PARGNA
       LACHHRANG, P.O. SUBATHU,





       TEHSIL KASAULI, DISTRICT SOLAN, H.P.        ....RESPONDENTS

    3. SH. HOSHIYAR SINGH
       S/O SH. BUDH RAM,





       R/O VILLAGE BHALI, PARGNA
       LACHHRANG, P.O. SUBATHU,
       TEHSIL KASAULI, DISTRICT SOLAN, H.P.

    4. SMT. BIMLA
       D/O SH. BUDH RAM, S/O SH. GUITU,
       R/O VILLAGE KASHMARI,
       P.O. DUMEHAR BANI,
       TEHSIL KANDAGHAT,
       DISTRICT SOLAN, H.P.                        ....PROFORMA
                                                     RESPONDENTS.




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    (BY MR. P.S. GOVERDHAN, ADVOCATE FOR R-1)




                                                           .
             This appeal coming on for admission this day, the Court





    delivered the following:





                               JUDGMENT

Defendant No. 1 Dala Ram, who is the appellant herein,

is aggrieved by the judgments and decrees concurrently passed

by the Courts below.

2. Plaintiffs-respondents No. 1 and 2 herein, filed suit for

declaration to the effect that they are co-owners in joint

possession alongwith appellant and proforma respondents of

land comprised in khata khatauni No.3/8 to 16, kitas 32

measuring 39,299 Sq. Mts., khata khatauni No. 4/17 to 21, kitas

18 measuring 30216 Sq. Mts, khata/khatauni No. 5/22 to 28,

kitas 23 measuring 26,410 Sq. Mts. situated at Mauja Bhali, Pr.

Lachhrang, Tehsil Kasauli, Distt. Solan, H.P. as per Misal Hakiyat

2010-2011 and Khata/khatauni No. 19/22 to 23, kitas 4

measuring 8 bighas 5 biswas, khata/khatauni No. 20/24, khasra

No. 401 measuring 71 bighas 16 biswas, khata/khatauni No.

12/12, kitas 3 measuring 1 bigha 13 biswas, khata/khatauni No.

23/28 kitas 5 measuring 5 bighas 3 biswas and khata/khatauni

No. 18/20 and 21 kitas 11 measuring 39 bighas situated at Mauja

Kathani, Pr. Lachhrang, Tehsil Kasauli, Distt. Solan, H.P., to the

extent of share of late Sh. Budh Ram, who have been duly

recorded in revenue record, in equal shares as the suit land is

.

ancestral landed property which could not be bequeathed by

deceased Sh. Budh Ram by way of Will. It is further alleged in the

plaint that suit has been filed only with respect to the share of

late Sh. Budh Ram and there is no dispute with any other

persons regarding inheritance of suit land. It is further alleged

that suit land is ancestral landed property and late Sh. Budh Ram

neither executed any Will nor he could do so having regard to

the status of land being ancestral land. It is case of the

respondents-plaintiffs that Sh. Budh Ram expired on 13.3.2012

leaving behind respondents-plaintiffs, appellant-defendant and

proforma respondents being his children and it is further alleged

that predecessor in interest including parties to present lis are

Hindu by religion and being members of joint Hindu Family are

governed by Mitakshra Hindu Law. It is further alleged that Sh.

Budh Ram inherited the suit land from his predecessor-in-

interest in the capacity of Joint Hindu Undivided Family and

plaintiffs being coparceners have right by birth in the landed

property hence entire land after death of Sh. Budh Ram should

have been mutated in favour of parties to present lis in equal

shares, but appellant-defendant manipulated the things and

procured fabricated Will registered in the office of Sub Registrar,

Kasauli, bearing No. 63 dated 12.9.2009 alleged executed by

late Sh. Budh Ram in his favour whereby landed property stands

.

willed out in his favour. It is further alleged that since the land in

question is ancestral hence the aforesaid Will is liable to be

declared null and void and non est in the eyes of law. It is further

alleged that as late Sh. Budh Ram was not keeping good health

and disposing state of mind, he was not capable of executing

Will, hence Will in question is the result of fabrication and forging

of documents. It is also alleged that Mutation Nos. 6 and 300

dated 7.5.2012 and 10.7.2012, attested on the basis of aforesaid

forged Will be also declared wrong, illegal, null and void and it

has also been prayed that appellant-defendant be restrained by

decree of permanent injunction from changing the nature and

alienating any part of the suit land in any manner.

3. Suit of the plaintiffs-respondents was resisted and

contested by defendant No. 1-appellant as well as defendants

No. 2 and 3-proforma respondents by filing joint written

statement by taking preliminary objections qua maintainability of

suit, plaintiffs having not come to Court with clean hands,

plaintiffs being estopped from filing the suit due to their own

acts, deeds etc, and that no cause of action has accrued in

favour of the plaintiffs and against the defendants. On merits, all

the allegations levelled against the defendants have been

denied and refuted and it has been specifically denied that the

land in question is ancestral property. It has specifically been

.

pleaded that plaintiff No. 1-respondent had abandoned relations

with his father since 1998 and he started living separately from

his father and other members of the family. Similarly plaintiff No.

2-respondent had also started living separately from his father

and other family members due to abandoned relations since

2004. As far as late Sh. Budh Ram, father of the parties to the

present lis is concerned, he was residing with the defendant-

appellant till his last breath and during his life time he was

looked after, maintained and taken care of by defendant-

appellant and he was very happy with the care of defendant-

appellant and for that reason out of love and affection late Sh.

Budh Ram executed aforesaid genuine Will with full

consciousness and with disposing state of mind as he was

keeping good health at that time and he was well aware about

what he was doing. Rest of the contents of the plaint were

specifically denied and prayed for dismissal of suit.

4. After recording the evidence/statements of the

respective parties, the learned trial Court decreed the suit of the

plaintiffs-respondents. Feeling aggrieved by the said judgment

and decree, the defendant-appellant assailed the same by way of

filing appeal before the First Appellate Court, who dismissed the

appeal vide impugned judgment and decree. Feeling dissatisfied

and aggrieved defendant No. 1-appellant has preferred the

.

present appeal.

5. It is vehemently argued by Mr. V.S. Chauhan, learned

Senior Advocate, assisted by Mr. Rajul Chauhan, Advocate, for

the defendant-appellant that the judgment rendered by the

Court below is contrary to the factual and legal position and,

therefore, deserves to be set aside. While on the other hand, Mr.

P.S. Goverdhan, learned counsel for plaintiffs-respondents

contended that the findings returned by the Court below are

clear findings of fact which are not to be disturbed in the second

appeal.

6. Heard learned Counsel for the parties and gone through

the records of the case.

7. At the very outset, it needs to be stated that Will has

to be executed as per the provisions of Section 63 of the Indian

Succession Act, 1925 and proved as per the provisions of Section

68 of the Indian Evidence Act, 1872. For convenience, relevant

parts of the Sections are reproduced as under: -

"Section 63(c) of Indian Succession Act. 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 seen 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."

"Section 68 of The Indian Evidence Act. 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.]"

8. As per Section 63 of Indian Succession Act, Will is

required to be attested by two or more witnesses and each of

these witnesses must have seen the testator sign or affix his

mark to the Will, or must have seen some other person sign the

Will in the presence and by the direction of the testator, or must

have 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 has to sign the Will in the presence of

.

the testator and it shall not be necessary that more than one

witness be present at the same time. In short, the Will is required

to be attested by two or more witnesses who must have seen the

testator sign or affix his mark over the Will and they shall also

sign the same in presence of testator. However, it is not

necessary that more than one witness shall be present at the

same time. As such, in order to show that the Will was duly

executed by deceased, the defendants were required to prove its

due execution in above manner. As per Section 68 of Indian

Evidence Act, the document required by law to be attested shall

not be used as evidence until one attesting witness at least has

been called for the purpose of proving its execution. In

compliance of the said requirement of law, defendants have

examined one of the attesting witness of the Will namely

Bhupinder Singh. In addition, defendants have also examined its

scribe Ghanshyam Sharma and the identifier Kirpa Ram. A close

perusal of their evidence with other facts and circumstances

clearly shows that the Will has not been executed as per the

provisions of Section 63 of Indian Succession Act.

9. Adverting to the fact situation, it would be noted that

the plaintiffs are claiming 1/5th share in the suit land on the

basis of natural succession, whereas, on the other hand the

defendants have placed their claim upon Will No. 63, dated

.

12.6.2009. The onus to prove the Will was on the defendants and

after tendering documentary evidence by plaintiffs, defendants

led their evidence in proof of the aforesaid Will. As regards the

plaintiffs, it was averred in the plaint that late Sh. Budh Ram

was not in a fit state of mind and body at the time of the alleged

execution of Will. The defendants examined seven witnesses to

prove the state of mind and body of the testator as was

prevalent at the time of the execution of the Will and also tried

to prove the circumstances leading to the execution of the Will.

10. Defendants examined DW-1 Satpal Rana, Registration

Clerk, Tehsil Office, Kasauli, who proved from the record, Will No.

63, dated 12.6.2009 as Exbt. DW-1/A. DW-4 Ghanshyam Dutt is

scribe of Will and deposed that on 12.6.2009 he scribed the Will

Exbt. DW-1/A on the instructions of Budh Ram at his office at

Garkhal and after writing the same it was read over and

explained in presence of the wittiness who signed the same after

admitting the contents to be correct on all the three pages in

Urdu. DW-6 Bhupinder Singh is stated to be a marginal witness

of Exbt. DW-1/A and deposed that on 12.6.2009, DW-4

Ghanshyam Dutt scribed the Will on the directions of Budh Ram

who read over the Will to Budh Ram after scribing it and

thereafter Budh Ram and both the witnesses put their signatures

on the Will. Perusal of the Will Exbt. DW-1/A reveals that it was

.

signed by marginal witnesses DW-6 Bhupinder Singh and one

Dumesh Dutt. DW-5 Kirpa Ram has signed the document as an

identifier before the Registering Authority at the time of

registration of the Will. DW-5 Kirpa Ram in his cross examination

stated that all persons except Dumesh Dutt signed Will Exbt.

DW-1/ in the office of scribe DW-4 Ghanshyam Dutt at Garkhal.

The fact that witness Dumesh Dutt was not present in the office

of the scribe Ghanshyam Dutt at the time of writing of the Will

has been found to be duly corroborated by both the Courts below

from the perusal of Will Exbt. DW-1/A wherein name of marginal

witness DW-6 Bhupinder Singh and identifier DW-5 Kirpa Ram

have been typed with the help of computer, whereas, blank

space has been left for writing the name of other marginal

witness Dumesh Dutt which has been later on filled up by a ball

pen. Certainly all these facts cumulatively go to show that at the

time when testator Budh Ram put his signature on the Will,

there was only one attesting witness namely DW-6 Bhupinder

Singh. No doubt the other witness can sign the Will as marginal

witness if he sees the testator signing in his presence or he

receives personal knowledge of the fact that the testator has

signed the will or put his mark thereon. In this background,

testimony of scribe DW-4 Ghanshyam Dutt is relevant because

he states that the testator and other persons left for Tehsil Office

.

for registration of the document immediately after scribing of the

document and he reached the Office of Sub Registrar later on

and by that time Will had already been presented for

registration. No other witness was examined by the defendants

to prove that the testator had put his signatures in the presence

of other attesting witness Dumesh Dutt or that Dumesh Dutt

was made aware of the contents of the Will Exbt. DW-1/A. None

of the witnesses, be it defendant No. 1 Dala Ram, DW-5 Kirpa

Ram or for that matter DW-6 Bhupinder Singh have deposed

before the Court that the other attesting witness Dumesh Dutt

had seen the testator sign or affixing his mark on the Will or has

seen some other person signing the Will in his presence and by

the directions of the testator or has received from the testator

personal acknowledgment of his signatures or mark on the Will.

DW-6 Bhupinder Singh has stated in his cross examination that

he had read Will at Garkhal and got it signed from Dumesh Dutt

and produced the same for registration before the Tehsildar.

Thus, what stands established on record from the perusal of

cross examination of DW-4 Ghanshyam Dutt and DW-6

Bhupinder Singh is that the Will was brought from the office of

the scribe at Garkhal to Kasauli where it was got signed from

Dumesh Dutt and presented before the Registering Authority

for registration. Once that being so, obviously there is total non

.

compliance of the provisions of Section 63 of Indian Succession

Act supra.

11. The attesting witness Dumesh Dutt has neither seen

the testator put his signature or mark on the Will nor had

personal knowledge of the said fact. The findings to this effect,

recorded by the Courts below concurrently are pure findings of

facts and are, therefore, immune from interference in the instant

second appeal more particularly when there is nothing on record

to suggest that these findings are in any manner erroneous or

perverse.

12. Having said so, I find no merit in the present appeal and

the same is accordingly dismissed leaving the parties to bear

their own costs.

Pending application(s), if any, shall also stand disposed

of accordingly.

(Tarlok Singh Chauhan), Judge.

May 06 , 2022 (PK)