Shankuntla Devi & Ors vs Ram Chand And Others
2023 Latest Caselaw 526 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 149 of 2009 Decided on: 09.01.2023

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    Shankuntla Devi & Ors.                 ......Appellants





                           Versus
    Ram Chand and others                   .....Respondents

..........................................................................................

Coram The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge. Whether approved for reporting?1

For the appellants: Mr. G.D. Verma, Sr. Advocate with

Ms. Shruti Sharma, Advocate.

     For the respondents:                    Mr. Neeraj Gupta, Sr. Advocate
                                             with Mr. Ajit Jaswal, Advocate, for
                         r                   respondent No.3.

    Jyotsna Rewal Dua, J

The present appeal was admitted on 02.04.2009 on

following substantial question of law:-

" Whether Will Exhibit PW/2A was lawfully executed by late Smt. Devku Devi, in favour of Sh. Jai Ram, her brother during her life

time on 10.06.1968 and this being a genuine document and the fact that if execution has been proved on record, in accordance

with law, therefore, right of succession of Smt. Devku shall be regulated on the basis of this document."

2 The appellants had filed the civil suit for declaration and

possession of the suit property. The relief was claimed on the

strength of a Will allegedly executed on 10.06.1968 by Smt. Devku

Devi, the previous owner in possession of the suit land. Plaintiffs

Whether reporters of the local papers may be allowed to see the judgment? yes

pleaded that Smt. Devku Devi had executed the Will Ext.PW2/A in

favour of their father namely Sh. Jai Ram, who was real brother of

.

Smt. Devku Devi and enjoyed cordial relations with her.

3. The record shows that Smt. Devku Devi died during the

year 1983. After her death, her estate was mutated in favour of her

legal heirs i.e. seven daughters and two sons vide mutation No. 303

attested on 22.03.1983 Ext. P3. No objection either by the plaintiffs

or by their father Sh. Jai Ram, who was alive at that time was raised

against mutation No.303. At the time of attestation of this mutation,

neither the alleged beneficiary of Will Sh. Jai Ram nor his legal heirs

(plaintiffs) had set up the Will Ext.PW2/A allegedly executed by Smt.

Devki Devi on 10.06.1968.

The record also shows that daughters of Smt. Devku

Devi had also transferred their respective shares in favour of their

brothers. In fact share of Sh. Sant Ram one of the sons of Smt.

Devku Devi was purchased by the plaintiffs themselves. Had there

been any Will in favour of plaintiffs' father, there was no need for the

plaintiffs to have purchased the share of Sh. Sant Ram.

The Will in question was propounded after a gap of 30

years from its alleged execution. The Will was an unregistered

document. The execution of the Will was not even proved in

accordance with law. The only living attesting witness of the Will

produced by the plaintiffs i.e. PW-3-Rana, did not even state that the

alleged Will was dictated by Smt. Devku Devi, that it was read over

and explained to her and that after admitting the Will to be correct,

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she thumb marked it. The legal requirements for proving the due

execution of the Will were not complied with.

Both the learned Courts below after properly

appreciating the pleadings and evidence adduced by the parties

rightly dismissed the suit filed by the plaintiffs. Accordingly the

concurrent findings of the facts recorded by the learned Courts below

do not call for any interference. Consequently, the present appeal

being devoid of merit, is dismissed. Pending application(s), if any,

also stand disposed of accordingly.

Jyotsna Rewal Dua

Judge 09th January 2023 (rohit)