Punjab-Haryana High Court
Ramesh Lakhanpal vs Neetu Sharma on 20 September, 2024
Author: Vikas Bahl
Bench: Vikas Bahl
Neutral Citation No:=2024:PHHC:124941
CR-5453-2024 (O&M) [1]
112
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR-5453-2024 (O&M)
Date of decision: 20.09.2024
Ramesh Lakhanpal
...Petitioner
Versus
Neetu Sharma
...Respondent
CORAM: HON'BLE MR. JUSTICE VIKAS BAHL
Present: Mr. Mandeep Singh Sachdev, Advocate and
Ms. Meher Sachdev, Advocate for the petitioner.
****
VIKAS BAHL, J. (ORAL)
1. This is a revision petition filed under Article 227 of the
Constitution of India for setting aside the impugned order dated 31.05.2024
(Annexure P-1) passed by the Civil Judge (Junior Division), Jalandhar
whereby an application filed by the plaintiff-respondent for placing on record
the Court fee of Rs.50/- has been allowed and it has been further ordered that
the petitioner-defendant would first lead evidence in Civil Suit bearing CS
No.2043 of 2022 titled as Neetu Sharma Vs. Ramesh Lakhanpal.
2. Learned counsel for the petitioner has submitted that in the
present case, a perusal of the amended plaint would show that in addition to
the prayer for declaration to the effect that the plaintiff-respondent
(hereinafter to be referred as "the plaintiff") was owner of the property in
question, a further prayer had been made for declaration that the alleged Will
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dated 07.01.2020 alleged to be executed by Jatinder Sharma propounded by
defendant was a forged and fabricated document and was liable to be set
aside and a further prayer was also made for mandatory injunction directing
the defendant to deliver the vacant possession of first and second floor with
respect to the suit property, to the plaintiff. It is submitted that since, the
prayer that the Will is a forged and fabricated document had been made by
the respondent-plaintiff thus, it is the respondent-plaintiff who has to first
lead evidence in this regard and the impugned order directing the petitioner to
lead evidence is illegal and deserves to be set aside and directions are to be
given to the plaintiff-respondent to lead her evidence first in support of the
plea that the Will is forged and fabricated. In support of his arguments, he has
relied upon the judgment passed by the Hon'ble Supreme Court of India in
case titled as Daulat Ram Vs. Sodha reported as 2005(1) SCC 40.
3. This Court has heard learned counsel for the petitioner and has
perused the paper book and finds that the pleas raised on behalf of the
petitioner are meritless and the present revision petition deserves to be
dismissed.
4. The respondent-plaintiff had filed a suit for declaration to the
effect that she was owner of the property in question on the plea that her
husband Jatinder Sharma had purchased the property vide registered sale
deed dated 07.09.1995 and the petitioner-defendant is the real brother of
Jatinder Sharma and in the month of October, 2008, the defendant-petitioner
had approached the said Jatinder Sharma and had requested for taking first
floor of the accommodation of the house for staying with his family as a
licencee and had assured Jatinder Sharma that he would vacate the premises
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and hand over the vacant possession as and when Jatinder Sharma would ask
for the same. It was further pleaded that Jatinder Sharma was diagnosed with
cancer in the year 2019 and that respondent-plaintiff and her children had
looked after him but unfortunately, he had died on 30.04.2020 and the
respondent-plaintiff along with two children had inherited the said property
and had become owner of the same. It was further averred that both the
children had executed the registered document to transfer their respective
shares in favour of the respondent-plaintiff and thus, the respondent-plaintiff
had become exclusive owner of the property and that respondent-plaintiff had
permitted defendant-petitioner to stay on the first floor as a licencee and since
May, 2022, the conduct and behaviour of the defendant-petitioner was not
bearable thus, the respondent-plaintiff had terminated the licence on
31.05.2022 and accordingly, filed the suit for mandatory injunction, with
other prayers.
5. In para 11 of the plaint, it was specifically stated that legal notice
was issued to the defendant-petitioner and reply dated 15.06.2022 was
received by the respondent-plaintiff from the counsel of the defendant in
which defendant-petitioner had propounded some alleged Will stated to be
executed by Jatinder Sharma but the defendant had not mentioned about the
date of the Will, name of the witnesses or the fact that as to whether Will was
registered or unregistered in the said reply. Para 11 of the said plaint is
reproduced hereinbelow:-
"11. That the said notice was duly served upon the defendant
who through his counsel Sh Mandeep Singh Sachdev Advocate,
Jalandhar gave reply dated 15.06.2022 on the basis of
absolutely false and frivolous allegations. In the said reply the
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defendant propounded some alleged will alleged to be executed
by said Sh Jatinder Sharma but the defendant intentionally
did not got mention in the reply the date of alleged will, name
of the witnesses on the alleged will and if the alleged will is
registered or unregistered which shows malafides on the part
of the defendant. Moreover the copy of the alleged will is
intentionally not sent by the defendant along with the reply
dated 15.06.2022. Sh Jatinder Sharma died intestate on
30.04.2020 and he never executed any will during his lifetime.
The alleged will now propounded by the defendant is a forged
and fabricated document created by him to grab the property of
the plaintiff and she reserves her right to prosecute the
defendant and his associates. Copy of the reply dated
15.06.2022 is attached."
6. It would be relevant to note that although, the original plaint has
not been annexed along with the present revision petition but learned counsel
for the petitioner has fairly submitted that abovesaid para 11 was there in the
original plaint which is also part of the amended plaint as only para 13A
alongwith an additional prayer was added subsequently, by way of
amendment.
7. A written statement was filed on behalf of the petitioner-
defendant to the said plaint and thereafter, even amended written statement
had also been filed to the amended plaint. Although, the original written
statement has not been annexed along with the present revision petition but
the written statement to the amended plaint has been annexed. Even in the
written statement to the amended plaint, it had been averred that Will in
question was duly executed by Jatinder Sharma in his sound disposing mind
and there were no suspicious circumstances attached to the said Will and it
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was stated that the said Will was executed by Jatinder Sharma without any
pressure from any source. In para 13A of the written statement to the
amended plaint, it was also mentioned that the Will would be proved in due
course of time, at the time when the evidence is to be led by the defendant-
respondent.
8. It is not in dispute that after the written statement, in which
reliance on the Will was placed by the defendant, was filed; the plaint was
amended and prayer was also amended and as has been fairly stated by
learned counsel for the petitioner that prayer for declaration with respect to
the said alleged Will dated 07.01.2020 was also added, as a matter of
abundant precaution. In addition to the abovesaid prayer, even para No.13A
was also added in the plaint in which it was stated that the defendant had
filed written statement in the case on 19.09.2022 in which case he had relied
upon the Will allegedly executed by Jatinder Sharma but the defendant
intentionally had neither produced the original alleged Will nor even
produced the copy of the alleged Will on the judicial file and also had not
supplied the copy of the alleged Will to the plaintiff nor had mentioned the
date of the execution of the alleged Will and name of the witnesses and as to
whether the alleged Will was registered or not, and thus, the plaintiff had to
move an application on 17.10.2022 for directing the defendant to produce the
original alleged Will on the judicial file and to supply the copy of the same to
the plaintiff which was allowed vide order dated 13.12.2022 and it was
thereafter, that the defendant had produced the Will dated 07.01.2020 on the
judicial file and thereafter the said application for amendment has been
moved challenging the said Will. Since, the added prayer for declaration was
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also sought, the respondent-plaintiff had filed an application dated
03.05.2024 (Annexure P-4) for placing on record the Court fees of Rs.50/-
and in para 4 of the same, it was stated that although the requisite court fee
had already been paid but to avoid any technicalities, an additional amount of
Rs.50/- was being sought to be paid on account of the prayer for declaration
sought. A reply (Annexure P-5) was filed to the said application also.
9. The trial Court, vide impugned order dated 31.05.2024
(Annexure P-1), was pleased to allow the application for placing on record
the Court fee of Rs.50/- for declaration sought after observing that the
respondent-plaintiff had filed a suit for mandatory injunction directing the
defendant to deliver the vacant possession of the first and second floor with
respect to the suit property to the plaintiff and since as per the plea raised by
the plaintiff, the defendant who was her brother-in-law was a licencee and the
licence had been terminated thus, there was no requirement for the plaintiff to
file a suit for possession, as per the settled law and only suit for mandatory
injunction was required to be filed and the plaintiff was not required to pay
advalorem Court fee at the market value thereof and thus, the Court fee of
Rs.50/- on account of declaration was adequate and was taken on record.
Prayer made by counsel for the plaintiff-respondent to the effect that since
petitioner-defendant had propounded the Will dated 07.01.2020 allegedly
executed by the husband of the plaintiff, thus, the petitioner should lead
evidence first, was accepted after taking into consideration the relevant
provisions of the Indian Evidence Act and after observing that a Will must be
proved by leading evidence and the burden of proving the execution of the
Will is on the propounder who has to prove the same affirmatively and then
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only it shifts upon the person who is opposing the Will and it is the
propounder of the Will who has to establish that the testator at the time of
execution of the Will was in sound state of mind and body and merely
because the plaintiff says that the Will is forged and fabricated, it does not
mean that the plaintiff is first required to lead evidence on the said aspect and
that since the defendant had set up a Will thus, onus of proving the execution
of the Will was on the defendant and, therefore, the defendant must lead
evidence first.
10. The said observations of the trial Court are absolutely in
accordance with law. It is a matter of settled law that the person who
propounds a Will is required to prove due execution of the same in
accordance with the provisions of Section 68 of the Indian Evidence Act,
1872 and is also required to satisfy the requirements of Section 63 of the
Indian Succession Act, 1925. It is only after the said aspects are proved that
the next question would arise which would be as to whether there is any
evidence on the aspect of forgery/fabrication, which aspect would have to be
proved by the person alleging forgery and fabrication, which in the present
case would be the plaintiff. In case, the defendant is not able to prove the due
execution of the Will then even in the absence of proof of any forgery and
fabrication, it would not be possible for the person propounding the Will to
seek any benefit on the basis of the Will. In the present case, it would also be
relevant to note that a perusal of the entire amended plaint would show that it
is only in response to the legal notice issued on behalf of the plaintiff that the
defendant had disclosed about there being some Will without giving details
of the date or the fact as to whether the said Will was a registered or an
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unregistered Will and it is only after the application was filed by the plaintiff
to produce on record the original Will, which was allowed on 13.12.2022,
that the alleged Will dated 07.01.2020 was produced and it is on the said
count that the amendment was made. Even in the plaint, specific pleadings
were made with respect to the Will as "alleged to be executed" and sought to
be "propounded" by the defendant and thus, a perusal of the plaint would
show that the Will has not been admitted by the plaintiff and as a matter of
abundant precaution, the same has been challenged. Thus, the impugned
order passed is in accordance with law and deserves to be upheld.
11. The judgment of the Hon'ble Supreme Court in the case of
Daulat Ram (Supra) relied upon by the counsel for the petitioner does not in
any way further the case of the petitioner. In the said case, the appellant
before the Hon'ble Supreme Court had challenged the Will on the ground
that the same was forged and was surrounded by suspicious circumstances.
The Hon'ble Supreme Court in para 10 of the judgment, had observed that
Will is to be proved in accordance with Section 68 of the Indian Evidence
Act, 1872 and for the said purpose, one of the attesting witnesses has to be
examined if the attesting witness is alive and subject to the process of the
Court and also propounder has to satisfy the requirements of Section 63 of
the Indian Succession Act, 1925 to show that the Will has been validly
executed and is a genuine document and further has to show that the Will has
been signed by the testator out of his own free Will and he was at the relevant
time in a sound disposing state of mind and once these elements are
established, then onus which rests on the propounder would be discharged. It
was also observed that the propounder has also to explain the suspicious
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circumstances by leading appropriate evidence. It was further observed by the
Hon'ble Supreme Court that respondent No.1 therein had successfully
discharged the onus of proving the due execution of the Will by examining
the attesting witnesses and by giving positive evidence and had also
explained the suspicious circumstances and had thereafter observed that there
was no evidence led by the appellant with respect to there being any fraud or
forgery. In the said circumstances, the order was upheld. Paras 10, 11, 13 and
14 of the said judgment are reproduced hereinbelow:-
"1 to 9. xxx xxx
10. Will being a document has to be proved by primary
evidence except where the Court permits a document to be
proved by leading secondary evidence. Since it is required to be
attested, as provided in Section 68 of the Indian Evidence Act,
1872, it cannot be used as evidence until one of the attesting
witnesses 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. In
addition, it has to satisfy the requirements of Section 63 of the
Indian Succession Act, 1925. In order to assess as to whether
the Will has been validly executed and is a genuine document,
the propounder has to show that the Will was signed by the
testator and that he had put his signatures to the testament of
his own free will; that he was at the relevant time in a sound
disposing state of mind and understood the nature and effect of
the dispositions and that the testator had signed it in the
presence of two witnesses who attested it in his presence and in
the presence of each other. Once these elements are
established, the onus which rests on the propounder is
discharged. But where there are suspicious circumstances, the
onus is on the propounder to remove the suspicion by leading
appropriate evidence. The burden to prove that the will was
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forged or that it was obtained under undue influence or coercion
or by playing a fraud is on the person who alleges it to be so.
11. Respondent No. 1 has successfully discharged the onus
of proving the due execution of the Will. The two attesting
witnesses, PW-3 and PW-5, have clearly stated in their
depositions that Prati was in sound disposing mind at the time
of the execution of the Will and had put his thumb mark on the
said Will after the same was read over to him in their presence
and that they had signed the Will in the presence of the testator
and in the presence of each other. They have deposed that
Respondent No. 1 was the daughter of Prati and Prati of his
own volition had executed the Will in favour of Respondent No.
1. PW-5 is a former Member of Legislative Assembly. PW-3 is a
close relation of deceased Prati. There is nothing on record to
indicate that they have deposed falsely. Rather their testimonies
inspire confidence. PW-2 is the scriber of the Will and
neighbour of deceased Prati. He has also deposed that
Respondent No. 1 is the daughter of Prati and that he had
scribed the Will at the instance of Prati. He has also deposed
that Prati had executed the will of his own while in sound
disposing state of mind. The Will propounded by the appellants
has been specifically revoked/cancelled by the Prati in his later
Will stating therein that the earlier Will was got written from him
forcibly by the appellants. Assertion in the second Will by the
testator about the earlier Will having been forcibly got executed
from him by the appellants is corroborated by the fact that in the
earlier Will it was shown that the testator had no child or heir
except the appellants and the fact of presence of Respondent No.
1, daughter of testator, was suppressed. From the reading of the
first Will it is clear that appellants were aware that Prati had a
daughter who could at any time lay her claim to the property of
her father.
12. xxx xxx
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13. The burden to prove that the Will dated 8.5.1993 executed
by Prati in favour of his daughter was forged or was obtained by
undue influence or by playing a fraud was on the appellants
which they have failed to discharge. No evidence was led by
them on either of these points.
14. Be that as it may, the second Will executed by Prati has
been proved to be genuine and validly executed by him wherein
he has bequeathed his entire property to his daughter,
Respondent No. 1. The earlier Will executed in favour of the
appellants has been specifically revoked. Since the earlier Will
stands revoked it cannot be given effect to.
Xxx xxx"
12. The abovesaid judgment in fact reiterates the settled proposition
of law that the Court is first required to see that the propounder of the Will
has been able to prove its due execution. Thus, the trial Court has rightly
directed the petitioner-defendant to lead his evidence first. Even on the aspect
of Court fee, the finding of the trial Court is correct and thus, the impugned
order dated 31.05.2024 (Annexure P-1) passed by the trial Court deserves to
be upheld. The present revision petition being meritless, deserves to be
dismissed and is accordingly, dismissed.
13. All the pending miscellaneous applications, if any, shall stand
disposed of in view of the abovesaid order.
20.09.2024 (VIKAS BAHL)
Pawan JUDGE
Whether speaking/reasoned:- Yes/No
Whether reportable:- Yes/No
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