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2009 Supreme(HP) 317
HIMACHAL PRADESH HIGH COURT
(Deepak Gupta & V.K. Ahuja, JJ.)
(D.B.)
OSA No. 2 of 2003
And
Cross Objection 4 of 2003
Decided on 10th April, 2009
Vijay Devi Vs. Navendra Singh Katoch & Ors.
.........Appellant ..........Respondents
For the Appellant :- Mr. K.D. Sood, Advocate.
For the Respondents:- Mr. Bhupinder Gupta, Senior advocate with Mr. Anand Sharma, Advocate.
Headnote:(i) Hindu Succession Act, 1956, Section 15(2)(a) - Right to inherit the property - “Will” - Held, Will has been held proved - Further held that Smt. Swaroop Kumari had died intestate and her sister, Maya Devi, mother of the plaintiff, was alive, the plaintiff had no right to inherit the property of Smt. Swaroop Rani - Appeal and cross-objections are dismissed. (Para 4)
(ii) Hindu Succession Act, 1956, Section 63-C - Will - Compliance of provisions of Section - Held, that DW-6 and DW-5 has not stated that Smt. Swaroop Kumari had signed the Will in their presence or of the alleged attesting witness and that the said witness had signed the will in the presence of Smt. Swaroop Kumari - Therefore it is held that appellant had failed to prove compliance of Section 63(c) of the Indian Succession Act - Appeal and cross-objections are dismissed. (Paras 30 & 46)
(iii) Hindu Succession Act, 1956 - Cross-objection - Non-proving of gift deed - Ownership of property - Held, Maharani Kalindi Devi after coming into force of the Hindu Succession Act, 1956 became full owner of the property - The plaintiff has also not proved on record gift deed Ext.PW-1 executed by Maharani Kalindi Devi in his favour - Further held that in view of the stand taken by the plaintiff it does not lie in his mouth to say that Smt. Swaroop Kumari, daughter of Maharani Kalindi Devi was not full owner of the property - Appeal and cross-objection are dismissed. (Paras 45 & 46)
(Deepak Gupta, J.) - The present appeal and cross-objections are directed against the judgment and decree dated 4.10.2002 delivered by a learned Single Judge of this Court in Civil Suit No. 14 of 1996 titled Navendra Singh Katoch v. Vijay Devi and another.
2. Maharaja Ranvijay Singh s/o late Bir Bikram Singh was the original owner of the property in dispute. He expired on 4.7.1955 leaving behind a widow Smt. Kalindi Devi and two daughters Smt. Maya Devi (defendant No. 2) and Smt. Swaroop Kumari. The plaintiff Navendra Singh is the son of defendant No. 2. Smt. Kalindi Devi died on 21.2.1973 while her daughter Smt. Swaroop Kumari died issueless on 25.2.1990. The plaintiff filed the suit in the High Court claiming that Maharaja Ranvijay Singh had executed a Will dated 21.2.1949. As per this Will he had given certain rights in his estate to his widow, which rights were to devolve upon his two daughters, Smt. Maya Devi and Smt. Swaroop Kumari, after the death of his widow. According to the plaintiff, after the death of the two daughters the entire estate was to devolve on the eldest male child of such daughters and since the plaintiff is the only male child in the family the entire estate has devolved upon him. Smt. Swaroop Kumari died issueless on 25.2.1990 at the age of about 70 years. According to the plaintiff, defendant No. 1 Vijay Kumari taking advantage of the old age and ill health of the deceased Smt. Swaroop Kumari, manipulated and procured a Will in her favour in the month of May, 1988. The plaintiff came to know about the Will only when the defendant No. 1 approached the Tehsildar, Nahan, for attestation of the mutation of inheritance qua the estate of deceased Smt. Swaroop Kumari in her favour on the basis of the said Will. This mutation was sanctioned in favour of defendant No. 1. Appeal preferred by the plaintiff against the said order was dismissed on the ground that complicated questions of facts and law were involved which could be decided only by a competent Civil Court. The plaintiff challenged the validity of the Will and also alleged that Smt. Swaroop Kumari did not have any right to execute the Will in view of the fact that she only had a limited estate as per the Will of late Maharaja Ranvijay Singh.
3. That suit was contested by defendant No. 1. She claimed that her family and the family of late Maharaja Ranvijay Singh were neighbours and were having very cordial relations. The defendant No. 1 alleged that deceased Smt. Swaroop Kumari used to treat her like a daughter and she had executed a Will dated 24.5.1988 in a sound disposing mind out of her own free will and consent. The defendant No. 1 also alleged that no will had been executed by Maharaja Ranvijay Singh on 21.2.1949.
On the pleadings of the parties, the following issues were framed :-
1. Whether the suit is not maintainable, as alleged ? OPD-1
2. Whether the suit is collusive between the plaintiff and defendant No. 2 as alleged ? If so, to what effect ? OPD-1
3. Whether the plaintiff is estopped from filing the present suit by his own acts and conduct ? OPD-1
4. Whether Maharani Kalindi Devi was a limited owner, as alleged ? If so, to what effect ? OPP.
5. Whether Maharani Kalindi Devi had executed a valid will in favour of the plaintiff on 19th August, 1963, as alleged ? OPP.
5-A. Whether Maharaja Ranvijay Singh had executed a valid will in favour of the plaintiff on 21.2.1949 as alleged ? OPP
6. Whether Rani Swaroop Kumari has executed a valid will on 24.5.1988 in favour of the defendant No. 1 as alleged ? OPD-1
7. Whether the orders passed by the Collector on 18.10.1993 and by the Divisional Commissioner on 6.8.1995 are illegal, null and void, as alleged ? If so, to what effect ? OPP
8. Relief.
4. Issues No. 1 and 3 were not pressed by the defendant No. 1. Issues No. 2 and 6 were decided against the defendant No. 1. Issue No. 4 was decided against the plaintiff. Issues No. 5, 5-A and 7 were decided in favour o
