Punjab-Haryana High Court
Ashok Kumar vs Ripudaman And Ors on 15 April, 2024
Neutral Citation No:=2024:PHHC:050338
2024:PHHC: 050338
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
RSA-1242-2020 (O&M)
Date of decision: 15.04.2024.
Ashok Kumar ...Appellant.
Versus
Ripudaman and others ....Respondents.
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CORAM: HON'BLE MRS. JUSTICE SUKHVINDER KAUR
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Present: Mr. N.R. Dahia, Advocate
for the appellant.
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Sukhvinder Kaur, J.
The instant Regular Second Appeal has been filed by appellant/
plaintiff against the concurrent findings recorded by both the Courts below,
vide which the suit of the plaintiff was dismissed.
2. Brief facts of the case as per plaint are that the plaintiff filed a
suit for declaration claiming himself to be the owner in possession of the
property of his deceased father Triloki Nath on basis of Will dated
16.09.2009. It has been averred that Triloki Nath father of the plaintiff was
residing with him and he was taking care of all his needs, due to which he
executed a Will dated 16.09.2009 in his favour. After death of his father on
03.10.2009 plaintiff visited the office of Sub Registrar Bawal for
registration of the aforesaid Will. He was asked by Tehsildar to publish a
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notice in this regard in the newspaper. After publishing the said notice in the
newspaper, defendants No.2 to 6 raised objections and the said Will was not
registered. The plaintiff asked the revenue officers to sanction the mutation
on the basis of the Will but they kept on prolonging the matter on one
pretext or the other and finally refused to do so on 05.07.2010, which led to
filing of present suit by the plaintiff.
3. The suit of the plaintiff was dismissed by the trial Court, vide
judgment and decree dated 29.01.2016. The appeal preferred by the
appellant/ plaintiff before the First Appellate Court was also dismissed, vide
judgment and decree dated 04.10.2019. Hence, the present Regular Second
Appeal has been filed by the appellant/ plaintiff.
4. Learned counsel for the appellant/ plaintiff has contended that
the appellant/ plaintiff gave dedicated service to both the parents and the
testator remained in his care till his demise and the other sons and daughter
did not look after him, so for rendering the aforesaid services, the Will in
question was executed by the deceased in favour of the appellant/ plaintiff.
The aforesaid fact has also been stated in the Will for explaining the
exclusion of other legal heirs. He has argued that the Courts below have not
appreciated the facts of the present case, controversy between the parties,
pleadings and evidence on record and have based their conclusion on
conjectures and surmises while dismissing the suit of the appellant/ plaintiff.
He has submitted that it is abundantly proved on record that the appellant is
in possession of the suit land and Courts below have wrongly held that the
appellant has not been proved to be in possession. Besides that, the law does
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not lay down the requirement of possession of bequeathed property, so such
objection is not sustainable in the eyes of law. He has urged that the Courts
below committed a legal error in not relying upon the Will duly executed by
testator and duly proved by the witnesses as required by the statutory
provisions on the subject. The respondents have never challenged the
signatures of the testator on the Will and it stands duly proved on record and
is not enveloped by any suspicious circumstance.
5. I have heard learned counsel for the appellant and gone through
the record thoroughly.
6. The Apex Court has held in Guro Vs. Atma Singh and others,
1992(2) RRR (26) (SC), that "with regard to proof of a Will the law is
settled that the mode of proving a Will does not ordinarily differ from that
of proving any other document except as to the special requirement
described in the case of a Will by Section 63 of the Indian Succession Act.
The onus of proving the Will is on the propounder and in absence of
suspicious circumstances surrounding the execution of the Will, proof of
testamentary capacity and signature of the testator as required by law is
sufficient to discharge the onus. Where, however there were suspicious
circumstances, the onus would be on the propounder to explain them to the
satisfaction of the Court before the Will could be accepted as genuine. Such
suspicious circumstances may be a shaky signature, a feeble mind and
unfair and unjust disposal of property or the propounder himself taking a
leading part in the making of Will under which he received a substantial
benefit. The presence of suspicious circumstances makes the initial onus
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heavier and the propounder must remove all legitimate suspicion before the
document can be accepted as the last Will of the testator."
7. As per Section 63 of the Indian Succession Act, the Will shall
be attested by two witnesses and each of the attesting witness must have
seen the testator sign or affix his mark to the Will or has received from
testator a personal acknowledgement of his signature or mark on the Will.
There is also additional requirement that each of the attesting witness shall
also sign the Will in the presence of the testator. It flows from Section 68 of
the Indian Evidence Act, that in order to prove the due execution of the
Will, one of the attesting witnesses is to be examined.
8. Now adverting to the case in hand, it is specific plea of
respondents No.1, 3 and 4 in the written statement that the Will in question
had been fabricated on blank papers by the appellants by playing fraud, with
the help of witnesses, on the pretext of filing of civil suit and appeal titled
as 'Triloki Nath Vs. Satpal'. The appellant during his cross-examination has
admitted regarding pendency of the above said litigation. The Courts below
have rightly taken note of the fact that the Will Ex.PA/1 propounded by the
plaintiff is a typed document on a non-judicial paper. The entire document/
Will is typed but the names of the testator and attesting witnesses are not
typed and only signatures of testator and attesting witnesses are there on the
Will, from which it transpires that the signatures of testator and attesting
witnesses were obtained on the Will later on and not at the time when the
document was typed. The date is also not typed and it is handwritten.
Though, Triloki Nath was himself a deed writer, but the Will Ex.PA/1 was
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neither in his hand nor the name of the scribe had been mentioned therein,
who had prepared the Will in question. It has also been pointed out by both
the Courts below that only second page of the Will is bearing signatures of
the Triloki Nath and his signatures are not there on the first page of the Will.
The signatures of Triloki Nath and the attesting witnesses on the Will are
having different ink of pens, which also leads to the inference that they have
put their signatures at different point of time and not in the presence of each
other. It has not been explained that why the plaintiff did not get registered
the disputed Will on the same day and why it was presented before the Sub
Registrar office on 05.07.2010, when it had been executed on 19.09.2009.
So, this delay of about nine months in disclosure of the Will has not been
explained by the plaintiff.
9. Besides that, there are discrepancies in the testimonies of the
witnesses of the plaintiff. PW1-Rameshwar Namberdar, attesting witnesses
of the disputed Will has stated that the Will had been written on the stamp
paper, whereas the Will Ex.PA/1 is a typed document on simple paper and is
not on the stamp paper. PW2, the other attesting witness of the disputed Will
has categorically stated in his deposition that the Will in dispute was not
written in his presence. Both the attesting witnesses are silent that the
contents of the Will were read over and after admitting it to be correct all
the parties have put their signatures on the same.
10. There is no such evidence on record that deceased Triloki Nath
was not having cordial relations with other legal heirs. So far as, the reports
of handwriting and fingerprint experts Ex.PW7/B and Ex.DW3/B are
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concerned, these are immaterial, as signatures of Triloki Nath over the
alleged Will in question are not disputed and plea of the defendants is that
the appellant had taken the signatures of Triloki Nath fraudulently on blank
papers which were used to prepare the Will in question.
11. The onus lies on the propounder to explain the suspicious
circumstances to the satisfaction of the Court. But the aforesaid suspicious
circumstances have not been dispelled by the appellant/ plaintiff to prove
the genuineness of the Will in question.
12. For the reasons recorded above, the present Regular Second
Appeal fails as it does not raise any question of law much less substantial
question of law.
13. Appeal stands dismissed.
14. All pending applications, if any, also stand disposed of
accordingly.
(SUKHVINDER KAUR)
JUDGE
15.04.2024.
komal
Whether speaking/ reasoned : Yes/ No
Whether Reportable : Yes/ No
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