Lalu v. Attar Chand And Others S

V.K Ahuja, J.(Oral):

This is a regular second appeal filed by the appellant/plaintiff under Section 100 of the CPC against the judgment and decree, dated 24.8.1999, passed by the learned District Judge, Mandi, H.P, vide which, he accepted the appeal filed by respondent/defendants and set aside the judgment passed by the learned Sub Judge Ist Class, Court No. 1, Mandi, dated 26.4.1994, decreeing the suit of the plaintiff.

2. Briefly stated, the facts of the case are that the appellant, hereinafter referred to as the plaintiff, filed a suit for declaration that he is joint owner in possession alongwith defendants qua the share of deceased Balak Ram, who was the real brother of the plaintiff. It was alleged that the Will, allegedly executed in favour of defendants No. 1 to 2, dated 12.3.1990, is the result of fraud, undue influence, deception and misrepresentation. It was also alleged that the plaintiff being the real brother of deceased Balak Ram was entitled to the suit land on his death, who died on 24.1.1992, being issueless and without making any testamentary disposition of his property. Thus, it was submitted that the Will, allegedly executed in favour of defendants No. 1 and 2, be declared as null and void and the plaintiff is entitled to the relief claimed by him.

3. Defendants admitted the relationship in between the parties. They also pleaded that defendants No. 1 and 2 are the minor daughters of the sister of the parties, who was looking after the deceased, who, out of love and affection and on account of services rendered by them, executed a valid registered Will on 12.3.1990 and the mutation was accordingly attested rightly in favour of the defendants. Thus, it was pleaded that the suit was liable to be dismissed.

4. On the pleadings of the parties, the following issues were settled by the learned trial Court:

1. Whether the Will dated 12.3.1990 is forged document and is the result of undue influence, deception and misrepresentation, as alleged? OPP

2. Whether the alleged Will dated 12.3.1990 was validly executed by Sh. Balak Ram in favour of the defendants, as alleged? OPD

3. Whether the suit in present form is not maintainable? OPD

4. Whether the suit is not properly valued for the purposes of Court fee and jurisdiction? OPD

5. Relief.

5. The parties led their evidence and the learned trial Court vide its impugned judgment, decided Issue No. 1 as against the plaintiff and held the Will to be invalid under Issue No. 2 being surrounded by suspicious circumstances and accordingly decreed the suit of the plaintiff for declaration. On appeal, those findings were reversed by the learned Appellate Court and the appeal was allowed and the suit of the plaintiff stood dismissed.

6. I have heard the learned counsel for the appellant and have gone through the record of the case.

7. The appeal was admitted by this Court on two substantial questions of law. The first substantial question of law was as to whether it was mandatory to prove that both the witnesses must have seen the executor signing or thumb marking the Will. The second question of law was as to whether in the Will, it is necessary to assign reasons for excluding the natural legal heirs.

8. On appraisal of the judgment passed by the learned trial Court, it was clear that the learned trial Court had mentioned therein that the defendants had examined the scribe of the Will Bhagirath as DW-3. Two of the attesting witnesses were also examined as DW-2 Hari Singh and DW-6 Shri Luder and the Will, in question, stood proved from the testimony of all these witnesses. However, the learned trial Court observed that there were suspicious circumstances surrounding the Will, which have not been explained by the defendants and as such the Will was not a valid one.

9. The learned Appellate Court had referred to the suspicious circumstances in detail, as observed by the learned trial Court, and held that these were not the suspicious circumstances, which could have been considered by the learned trial Court. The main suspicious circumstances were that both the attesting witnesses were not from the village of the testator and the real brothers and the near relations have been excluded, namely, the brothers and sisters. The learned First appellate Court has observed that it is not necessary that both the attesting witnesses should be from the village of the testator, but they were known to the deceased since DW-2 Hari Singh has been serving in the area for the last 17-18 years to which village the deceased belonged i.e Gagal and as such, it was held that they cannot be termed as chance witnesses. It was concluded, by referring to a judgment of this Court, that it is not necessary that the witnesses from the locality should be called before the Will is executed. Witnesses should be known to the deceased and the statements of both these witnesses show that they were known to the deceased and one of them was serving in the village of the deceased for the last 17-18 years. The learned trial Court had doubted the veracity of the statements of these witnesses on minor contradictions as to whether they came together or met at Mandi and it has been rightly concluded by the learned First Appellate Court that the learned trial Court should have considered the question that the witnesses were appearing in the Court after four years of the execution of the Will and such minor contradictions were bound to be there. The contradictions referred to were minor in nature and were rightly ignored by the learned Appellate Court.

10. Coming to the question that the near relations of the deceased were excluded and no reasons have been given in the Will for such exclusion, it is not necessary to give reasons for excluding the near relatives. In the present case, the near relatives are the plaintiff, who is the brother of the deceased and the sister of the deceased. The two children of the sister of the deceased had been given the property by way of Will. It is not a case where the deceased had excluded his wife or children and reasons must have been mentioned in the Will for their exclusion. It is the Will of the executant, which has to be given effect to by the Court and the Court cannot assume, of its own, that the near relations have been excluded. Therefore, this was no ground to hold that the Will in question is not valid one and non-mentioning of the reasons in the Will does not affect the merits of the case.

11. The learned Appellate Court has referred to the testimony of DW-4 Nag Ram, DW-5 Kanhaiya Lal, Pradhan of the Gram Panchayat, and DW-6 Biri Singh, Member of the Gram Panchayat, in which they have stated that the relations in between the parties were strained. It is true that no documentary evidence has been placed on the record but in the absence of the same, the oral testimony of the witnesses in this regard, who were the residents of the same village, cannot be ignored that the relations in between the parties were strained. It has also come up in evidence that the deceased was not living with the plaintiff for the last 10 years as stated by one witness or for 17-18 years as stated by the other witness, though the plaintiff himself admits in his statement that the deceased was not living with him for the last 5 years. A reference has also been made to some compromise effected before the Panchayat, which is Ext.DA, proved in the statement of DW-4 Nag Ram, who has stated that this is in his hand. Therefore, the document, in question, suggests the acrimony in between the plaintiff and the deceased and that may be the reason that the deceased excluded his brother getting his property after his death.

11. Coming to the question as to whether DW-6 Luder has not stated that the Will was read over in his presence and the deceased thumb marked in his presence. The Will in question was required to be proved by one of the attesting witnesses and the other attesting witness may not be examined to prove the same. The Will stood legally proved from the statement of DW-2 Hari Singh who has clearly stated that the deceased thumb marked the said Will in the presence of the witnesses and thereafter he signed the same. DW-6 Luder has not specifically stated that he signed the Will in the presence of the deceased, but he has admitted his signatures on the said Will. Therefore, it cannot be said that the Will was not legally proved from the testimony of the witnesses.

12. From the above discussion, it is clear that the findings recorded by the learned Appellate Court are based upon correct appreciation of evidence and law and these findings do not call for an interference by this Court.

13. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which stands dismissed. However, the parties are left to bear their own cost.

Oct.29, 2010. (V.K Ahuja),

(TILAK)Judge.