Shiv Ram vs Krishanu Ram & Another
2023 Latest Caselaw 15746 HP

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

RSA No.424 of 2018 Reserved on:01.09.2023

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                                          Pronounced on:09.10.2023





    Shiv Ram                                           ......Appellant
                                Versus





    Krishanu Ram & Another                  ...Respondents

_____________________________________________________ Coram:

Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice.

Whether approved for reporting?

For the appellant : Mr. Romesh Verma, Sr. Advocate with

Mr. Hitesh Thakur, Advocate.

For the respondents : Mr. Ashir Kaith, Advocate vice Mr. Hamender Singh Chandel, Advocate, for respondent no.1.

Mr. Rishab Negi, Advocate vice Mr. Aman Parth Sharma, Advocate, for

respondent no.2.

M.S. Ramachandra Rao, Chief Justice.

This Regular Second Appeal is preferred by the appellant

challenging the judgment and decree dt. 31.05.2018 of the Additional

District Judge, Ghumarwin, District Bilaspur, Himachal Pradesh in

Civil Appeal No.49-13 of 2017, confirming the judgment and decree

dt. 20.09.2017 in Civil Suit No.167/1 of 2007 of the Civil Judge

(Senior Division), Court No.I, Ghumarwin, District Bilaspur.

2) The appellant herein is the 1st defendant in the said suit.

3) The parties will be referred to as per their array in the suit.

4) The plaintiff and the 1st defendant are the sons of one Gulabu and the

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2nd defendant is their sister.

The suit

5) The suit was filed by the plaintiff against the defendants for

declaration that he and defendant no.1 are co-owners in joint

r to possession over the land measuring 1-17 bighas, comprised in Khasra

no.87, 390/157, 245, 247, Khata/Khatauni no.23/23 min, situated in

Village Jhareri, Pargna Baseh, Tehsil Jhandutta, District Bilaspur

(hereinafter referred to as the "suit land" in short); and for further

declaration that Sh. Gulabu had not executed any Will in favour of

defendant no.1 and any such Will, as may be produced by the

defendant no.1, should be declared illegal, null and void being result

of fraud, misrepresentation, undue influence and vitiated by

suspicious circumstances.

6) It was further prayed that permanent prohibitory injunction be granted

restraining the defendants from causing any interference in the half

share of the plaintiff in the suit land and from getting the entries

changed in their favour and also changing the nature of the suit land

or creating any charge or alienating the suit land.

7) Admittedly, the said Gulabu died on 30.10.2007 and the instant suit

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was filed on 30.11.2007.

Case of the plaintiff:

8) The plaintiff contended that during his life time, his father had

declared that after his death, the suit land would be inherited by him

and defendant no.1 in equal share; in October, 2003 with the consent

of his father, the plaintiff had constructed house upon the suit land for

his exclusive use by spending Rs.5 lacs; that the said house

construction was completed in 2004, and he alongwith his family is

residing therein.

9) It is further alleged that the 1st defendant, after getting separated from

the plaintiff and his father in 1982, was residing separately from them.

10) According to the plaintiff, in the year 2004, father of the plaintiff

became ill, suffered fever for a long time and had become hard of

hearing & feeble minded; defendant no.1 managed to take his father

with him, and on a false pretext and allurement of procuring financial

aid, took him to Jhandutta, got his signatures on certain papers; and at

that time father of the plaintiff was not able to understand what was

right or wrong and was under the influence of defendant no.1.

11) Plaintiff contended that after the death of his father, defendant no.1

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had disclosed that his father had executed a Will in his favour, but in

fact, no such Will had been executed by his father; and on the basis of

the said Will, after the death of his father, defendant no.1 was

claiming the exclusive rights in the suit land on the basis of the

alleged Will.

     The defendants' case
                        r          to

12) The defendants contested the suit by filing written statements.

13) The 1st defendant contended in the written statement that there is a

Will Ex.DW-1/A dt. 16.05.2005 executed by his father Gulabu

bequeathing the suit land in his favour.

14) He alleged that the father of the parties had gifted land measuring 6-12

bighas to the plaintiff and thereafter the plaintiff had started beating,

insulting and abusing their father; that their father was being looked

after and maintained by defendant no.1; and in a sound disposing

mind by his free will, he had executed the Will dt. 16.05.2005 in

respect of the suit land in his favour and the same was also got

registered in the office of Sub Registrar, Jhandutta.

15) He contended that after the death of the father, he alone is in

possession of the suit land, and the plaintiff & defendant no.2 have no

right, title or interest in the suit land in any manner.

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16) He denied that there was any oral declaration made by their father on

13.04.2003 or on any other occasion about the suit land as claimed by

the plaintiff and sought for dismissal of the suit.

Other events

17) The suit was initially decreed on 30.09.2015.

18) Civil Appeal No.45/13 of 2015 was preferred by the 1st defendant to

the First Appellate Court and vide judgment dt. 10.03.2016, the

judgment of the trial Court was set aside and the matter was remitted

back to the trial Court afresh after affording opportunity to defendant

no.2 to file written statement.

The stand of 2nd defendant

19) The 2nd defendant also filed a written statement opposing grant of

relief to the plaintiff.

20) She alleged that her father had given the house existing over the suit

land to her in lieu of maintenance; on 27.11.2001, the land measuring

6-12 bighas was given to the plaintiff through a registered deed

no.391 and registered gift deed no.6640 dt. 16.05.2005, and her father

had gifted land measuring 10-8 bighas to defendant no.1, after

retaining 1-17 bighas.

21) She also alleged that the suit land was bequeathed by their father to

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defendant no.1, except the new house constructed upon the suit land

which had been given to her by her father.

The issues

22) The following issues were framed by the trial Court:-

"1. Whether the plaintiff and defendant No.1 are joint owners in possession of the suit land, as alleged? OPP

2. Whether the plaintiff is entitled for the relief of permanent

prohibitory injunction? OPP

3. Whether the suit of the plaintiff is not maintainable? OPD

4. Whether the plaintiff has no locus-standi to file the present suit?

OPD

5. Whether the plaintiff has no cause of action to file the suit? OPD

6. Whether the present suit is not properly valued for the purpose of

Court fee and jurisdiction? OPD

7. Whether the present suit is not properly verified? OPD

8. Whether the present suit is bad for non filing of better

particulars? OPD

9. Whether late Shri Gulabu son of Sh. Tihru father of the plaintiff and defendants had executed a will dated 16.05.2005 his last and final will qua the suit land as alleged? OPD

10. Relief."

23) Before the trial Court, the plaintiff examined PW-1 to PW-6 and

marked Ex.PA to Ex.PW-2/A.

24) The defendants examined DW-1 to Ex.DW-14 and marked Ex.DA-1 to

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DW-12/J.

The trial Court's judgment

25) By judgment and decree dt. 20.09.2017, the trial Court decreed the

suit, declaring the Will Ex.DW-1/A dt. 16.05.2005, purportedly

executed by the father of the parties bequeathing the suit land in

favour of defendant no.1, as null and void, and not legally

enforceable.

26) It declared that the plaintiff and defendants no.1 & 2, being legal heirs

of deceased Gulabu Ram, are entitled to inherit the suit land in

accordance with law.

27) It also granted permanent prohibitory injunction restraining the

defendants from causing any sort of unlawful interference in the suit

land, in any manner whatsoever.

28) After considering the oral and documentary evidence, it held that the

Will Ex.DW-1/A dt. 16.05.2005, was got written in English, though

the testator did not know English; that the deposition of the identifier

of the testator, by name Basantu Ram, who was examined as DW-3,

would not help defendant no.1 to prove the execution of the Will; the

Will did not reflect or pertain to the wish of the testator of

bequeathing only movable and immovable properties, and the said

.

witness did not state that the Will was actually read over and

explained to the testator or to himself at any point of time by any

person in Hindi language or other language which they could

understand, as the said witness also did not know English. It further

held that the said witness did not state clearly as to who signed first

and who signed thereafter, and it appears that the 1st defendant

actively participated in the execution of the Will.

29) It also noticed that one of the attesting witnesses, by name Prem Singh,

was examined as DW-2, pleaded ignorance on the fact whether the

executant was in a sound disposing state of mind on the day of

execution of the Will and he also incorrectly stated that the executor

had only one son and one daughter, though he had two sons and one

daughter (plaintiff, defendant no.1 & defendant no.2).

30) It concluded that the executant cannot be said to be in a sound

disposing state of mind at the time of alleged execution of the Will,

because the executant wrongly stated as to how many children he had,

and the presence of the 1st defendant at the time of execution of the

Will, supports the allegations of the plaintiff in regard to the Will

having been got executed by misrepresentation and exercise of

influence.

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31) As regards the other attesting witness, by name Karam Chand, who

was examined as DW-5, the trial Court held that the said witness also

did not state specifically that the Will in English language was read

over and explained in Hindi language or in other language which the

testator could have understood, and the said witness also did not

specifically state as to who had signed upon the Will first and who

had signed thereafter.

32) It also observed that on the very day of execution of the Will on

16.05.2005, a gift deed Ex.DW-12/A, for an extent of 10 bighas and 1

bishwa of land, was also executed by Gulabu Ram in favour of

defendant no.1 and the same was also got registered, but the said deed

is hand-written and it is in Hindi language, while the Will was in

English language and appears to be type written; and there is no

explanation furnished as to why the same person executing and

getting registered two documents on the same day in regard to giving

of his properties to the same person, would have executed one in

Hindi language and the other in English language.

33) It also noted that none of the witnesses examined by defendant no.1,

had deposed about the execution of the gift deed also by the testator

on the same day, that none of the said witnesses stated that they know

.

English language, and there is a possibility of misrepresentation with

them taking the advantage that they are simple villagers.

34) Another circumstance noted by the trial Court was that one of the

attesting witness to the gift deed Ex.DW-12/A also executed on

16.05.2005, the same day as the registered Will was executed, was the

son-in-law (husband of defendant no.2), and it is suspicious as to why

the testator would not have associated his own son-in-law to whom he

had associated in the execution of the said gift deed as a witness,

while executing the Will Ex.DW-1/A.

35) It also noted that the plaintiff had a house in the suit land which was

constructed by incurring considerable expenditure.

The judgment of first appellate court..

36) Challenging this judgment, the 1st defendant preferred Civil Appeal

No.49-13 of 2017, before the Additional District Judge, Ghumarwin,

District Bilaspur, while the 2nd defendant preferred Civil Appeal

No.50-13 of 2017, but both appeals were dismissed on 31.05.2018.

37) The lower Appellate Court confirmed the findings of the trial Court.

38) After referring to the legal position regarding proof of a Will by

quoting the relevant provisions of the Indian Evidence Act, 1872 and

the Indian Succession Act, 1925 and also the relevant Case Law, it

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noted that one of the attesting witnesses to the Will, merely stated that

he signed the Will, but did not support the case of the 1st defendant

that the testator and the other witness Karam Chand, as also the

identifier Basantu, had signed in his presence, and so his evidence

would not support the case of the 1st defendant.

39) It also discussed the evidence of Karam Chand, the other witness, and

held that though the Will is a type written one, in his cross-

examination, he has stated that it is hand-written by the scribe, and his

evidence also shows active participation of the 1st defendant in the

execution of the Will.

40) It held that once the attesting witnesses failed to prove the due

execution of the Will as required under Clause (c) of Section 63 of the

Indian Succession Act, it cannot be said that the Will is proved.

41) It held that the essential ingredients of valid execution and attestation,

as required by law, have not been met in the alleged execution of the

Will in question.

42) It also held that the evidence on record did not sufficiently prove that

the testator was not favourably disposed towards the plaintiff, so as to

justify the exclusion of the latter from the bequest.

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43) It also noticed that there is no reference in the Will to the gift made in

favour of the plaintiff, when the testator himself had permitted the

plaintiff to construct a house on the suit land.

44) It also noted that the attestor of gift deed Ex.DW-12/A (also executed

on 16.05.2005 gifting 10-8 bighas of land in favour of defendant no.1

by the testator), was not the attestor of the Will which was highly

unusual, particularly when both documents had been prepared on the

same day and presented for registration within 5 minutes of each-

other.

45) It also noted that not only witnesses but the scribes of the two

documents are also different and the gift deed was in Hindi language

while the Will was in English, and this was not explained by the

counsel for the 1st defendant.

46) Thus, the lower Appellate Court dismissed the appeal of defendant

no.1 and also gave reasons why the appeal of defendant no.2 should

be dismissed.

47) Since the instant Regular Second Appeal is filed only by defendant

no.1 and not by defendant no.2, it is not necessary to go into the

reasons why the 2nd defendant's claim in the suit was rejected.

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48) This Regular Second Appeal had been admitted on 04.12.2018 to

consider the following two substantial questions of law:-

"1. Whether deceased father of the parties having executed a gift deed Ex.DW12/A in favour of Appellant at the same time when Will Ex.DW1/A, in question was executed with respect to different

properties and since the Plaintiff having accepted the validity of gift deed because validity thereof has not been assailed, hence both the Courts below have wrongly and illegally disbelieved the

validity of Will.

2. Whether Will in favour of Defendant No.1 by his father as executed and registered before the Sub Registration Ex.DW1/A

dated 16.5.2005 has lawfully been prepared and proved and there are no suspicious circumstances to disbelieve validity and correctness thereof."

49) As regards the first substantial question of law framed by the Court is

concerned, mere fact that the plaintiff did not question the gift deed

Ex.DW-12/A executed on the same day as the Will Ex.DW-1/A, does

not make the Will valid, if the execution of the Will is not properly

proved by leading evidence by the appellant/defendant no.1.

50) As rightly pointed out by both the Courts below, both documents were

executed on the same day and also registered on the same day within

five minutes of each-other, but the gift deed was in Hindi language

attested by the son-in-law of the executant, but the Will was in

English language and the son-in-law of the executant did not attest it;

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also the gift deed was hand-written, while the Will was type written;

and there are also other suspicious circumstances mentioned in the

judgments of the trial Court as well as the lower Appellate Court,

after considering the oral and documentary evidence on record, and

their reasoning commend acceptance. So the other substantial

question of law is also answered against the appellant/defendant no.1.

51) These concurrent findings as to the suspicious circumstances in the

execution of the Will, cannot be said to be perverse, and do not

warrant any interference by this Court in exercise of its jurisdiction

under Section 100 of C.P.C.

52) I, therefore, do not find any merit in the Regular Second Appeal and it

is accordingly dismissed.

53) Pending miscellaneous application(s), if any, shall also stand

disposed of.

                                             (M.S. Ramachandra Rao)
      October 09, 2023                          Chief Justice
          (Yashwant)