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High Court Of Himachal Pradesh
ARUN KUMAR GOEL
GUN PARKASH - Appellant
Versus
BHOLA NATH - Respondent
R.S.A. No. 182 of 1995
Decided On : 11/22/1996
WILL - PROBATE - EXECUTION AND VALIDITY - PROOF - CIRCUMSTANCES GIVING RISE TO SUSPICION - BURDEN OF PROOF - SHIFTING OF BURDEN - DUTY OF COURT - REGISTRATION OF WILL - EFFECT - EVIDENCE ACT, 1872, SECTION 68.
Fact of the Case:
The plaintiff filed a suit for declaration and injunction as a consequential relief against the defendants. The suit property was land measuring 1562.66 sq. metres and 514.23 sq. metres situated in Mandi town, Himachal Pradesh. The defendants claimed themselves to be in possession of the suit property. The plaintiff claimed that the Will propounded by the defendants was the result of fraud and undue influence practised upon Smt. Shyama Devi, the deceased owner of the suit property.
Finding of the Court:
The Court held that the Will propounded by the defendants was duly proved in accordance with the provisions of the Indian Succession Act and was also established to have been executed by Smt. Shyama Upadhaya, the exclusive owner of the suit property, while she was in good health and sound disposing mind. The Court further held that the so-called suspicious circumstances called out by the lower appellate Court were not made out from the materials on record.
Issues: 1. Whether the suit property is joint Hindu Family Co-parcenery property? 2. Whether the plaintiff and his son are exclusive owners in possession of the suit property? 3. Whether Smt. Shyama Upadhaya has executed a valid Will in favour of defendants in disposing mind? 4. Whether the Will is question is the outcome of fraud, undue influence as alleged? 5. Whether the suit has not been properly valued for the purpose of Court-fee and jurisdiction? 6. Whether Smt. Shyama Upadhaya had become owner of the suit property by way of adverse possession as alleged? 7. Whether the defendants are living in the said house and are in possession of suit property as alleged. If so, its effect? 8. Whether the suit is within limitation?
Ratio Decidendi: The Court held that the Will in question was registered and the deceased was identified by an Advocate before the Sub-Registrar. Simply because the testator was an old lady and natural heirs have been deprived by her is not by itself suspicious circumstance to discard the same. It is not the case of the plaintiff that a wrong person has been identified as testator at the time of registration of the Will Ex. DW-2/A- Besides this, merely because of beneficiaries were present by the side of executant will also be not itself a ground to jump to the conclusion that the Will has been surrounded with suspicious circumstances. Registration of Will is a prima facie evidence to prove the legal formalities for due registration were duly completed by the Sub-Registrar.
Final Decision: The Court allowed the appeal, set aside the judgment and decree passed by the lower appellate Court, and restored the judgment and decree passed by the trial Court.
1. Parties in this appeal are being referred to as defendants and plaintiff. The plaintiff filed a suit for declaration and injunction as a consequential relief against the defendants. In order to properly appreciate the background of this case, it is necessary to draw the pedegree table which is to the following effect :-
2. This appeal is filed by the defendants against the decree passed by the lower appeallate Court. Facts regarding which the parties are not at variance are that Kanha and Jai Dev were real brothers and were the sons of Dhari. So far Jai Dev is concerned, he had no issue and was survived by his widow Smt. Shyama. On the other hand, Kanha had only one son, named, Yadupati and Bhola Nath plaintiff is the son of Yadupati. In the present case, the estate of Smt. Shyama is the subjectmatter of dispute. Parties are further not at variance regarding the fact that Kanha and Jai Dev had effected partition of their joint holdings during their lifetime and thus, the jointness of status was severed during their life-time. As a consequence of such partition, Smt. Shyama became absolute owner of the property after the death of Jai Dev. In this view of the matter, learned counsel for the respondent has very fairly stated at the Bar that so far the plea regarding the property being joint Hindu family coparcenery property is concerned, that does not survive and accordingly it is given up.
3. As per averments made in the amended plaint, the suit property is land measuring 1562.66 sq. metres and 514.23 sq. metres situated in Thanehra Mohalla, Mandi town, Himachal Pradesh as per jamabandi for the year 1979-80 as detailed in the plaint and it belonged to one Shri Dhari who had two sons, namely, Kanha and Jai Dev.
4. In view of the facts stated in the preceding paragraph, the fact of the property being Joint Hindu Family-Coparcenery property is not being noticed for the determination of this appeal. The case of the plaintiff further was that Jai Dev died about 19 years ago and he was survived by his widow Smt. Shyama who died on 30-1-1985 and all her last rites were performed by the plaintiff. Further case of the plaintiff was that defendants started interfering in the peaceful possession of the plaintiff since 10-2-1985 over the suit property. Not only this, the defendants are further alleged to have been propagating that they are now owners of the suit property along with the plaintiff. According to the plaintiff Smt. Shyama was neither the owner of the suit property nor was she competent to make any Will. It was further pleaded by the plaintiff that in case Smt. Shyama was found to be competent to make the Will, then in such a case, she being ill for the last many years as also being not of disposing mind, was not competent to execute any Will. It was pleaded that Smt. Shyama was blind. Further plea of the plaintiff, was to the effect that if the Will is duly proved to have been executed while the executant was in sound disposing mind, then it was pleaded that the same is the result of undue influence and fraud and the same is void.
5. By means of an amendment, paragraph 7A was added to the plaint, wherein it was pleaded that the father of the defendants was a disciple of Shri Jai Dev, husband of Smt. Shyama and this disciple used to live generally in the house of Smt. Shyama. It is further case of the plaintiff that the defendants were also spending most of their time by remaining in the house of Smt. Shyama with their father and the defendants along with their father were looking after her. Defendants were further stated to be in a dominating position and impressing upon the executant of the Will Smt. Shyama that they are the only persons who are her well-wishers. At such time, defendants and their father are stated to have got certain papers signed from Smt. Shyama by telling her that those papers were relating to death of her husband and according to the plaintiff, those were the papers to which defendants were holding
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