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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Before
Hon’ble Mr. Justice Rajiv Sharma, Judge.
RSA No.107/ 2009 alongwith RSA No.109/2009 RSAs No. 107 and 109 of 2009 Decided on: 13.7.2011
Ashok Bansal. Versus Anju Goel. (in both appeals)
WILL - Property Dispute - Indian Evidence Act, 1872, Section 63, Section 68 - The court discussed the execution and attestation of the will, the burden of proof, and the suspicious circumstances surrounding the will. The court emphasized the need for the propounder to remove suspicious circumstances and prove the testator's sound and disposing state of mind.
Fact of the Case:
The case involved a property dispute arising from a will executed by Harsawaroop Dass in favor of the plaintiff. The defendant contested the validity of the will, alleging forgery and coercion. The lower courts dismissed the suit and partly decreed the counter-claim, leading to the appeals before the court.
Finding of the Court:
The court found that the plaintiff failed to prove the valid execution of the will. It highlighted the suspicious circumstances surrounding the will, including discrepancies in signatures, lack of disclosure about the will, and exclusion of the natural heir without sufficient reason. The court emphasized the need for the propounder to remove suspicious circumstances and prove the testator's sound and disposing state of mind.
Issues: The main issue was the validity of the will and the burden of proof regarding its execution and attestation. The court also considered the exclusion of the natural heir and the suspicious circumstances surrounding the will.
Ratio Decidendi: The court emphasized that the burden of proof lies on the propounder to establish the valid execution of the will and remove suspicious circumstances. It highlighted the need to prove the testator's sound and disposing state of mind and the attestation of the will by two witnesses.
Final Decision: The court dismissed the appeals, upholding the lower courts' findings that the plaintiff failed to prove the valid execution of the will. The court emphasized the need for the propounder to remove suspicious circumstances and prove the testator's sound and disposing state of mind.
Justice Rajiv Sharma, Judge. Since both these Regular Second Appeals arise from a common judgment dated 6.11.2008 in Civil Appeals No.20-NL/13 of 2008, 21-NL/13 of 2008 and Cross Objections No. 25-NL/ 13 of 2008 and common questions of law and facts are involved, the same were taken up together for hearing and are being disposed of by a common judgment.
2. Material facts necessary for the adjudication of these Regular Second Appeals are that one Harsawaroop Dass was owner in possession of the house, shop and land in dispute. He has one daughter, namely, Anju Goel. His wife had already died. According to the appellant-plaintiff (hereinafter referred to as ‘plaintiff’ for convenience sake) since Harsawaroop Dass had married his daughter in a good family and she was living good life, deceased Harsawaroop was alone and was putting up in the house of the plaintiff where the plaintiff, his father, mother and father were putting up. He was looked after by him. Harsawaroop was crippled and was not in a position to walk. He, out of love and affection, executed a “will” in his favour on 27.6.200 1 (Ex.P-2). It was also got attested from a Notary Public. Harsawaroop died on 4.6.2003. Respondent-defendant, namely, Anju Goel (hereinafter referred to as ‘defendant’ for convenience sake) got the mutation attested in her favour on 20.6.2003 at Sr. No. 347 and 361. According to him, on the basis of “will”, he became owner in possession of the suit property and the defendant has got no right, title or interest over the suit property. It is in these circumstances the suit was filed by claiming that plaintiff had become owner of the suit property in view of the execution of “will” and injunction restraining the defendant from interfering over the suit land or dispossessing the plaintiff by force had been sought.
3. Suit was contested by the defendant. According to the defendant, she was daughter of Harsawaroop. According to her, no “will” was executed by her father. He was living separately. His last rites were performed by her. The “will” claimed by the plaintiff was forged document prepared by Dharminder Singh Rana. The attestation of “will” by Notary Public was also forged to grab the suit property. The plaintiff broke open the house and the shop and forcibly took the possession of the suit property. She lodged complaint with the Station House Officer, Police Station, Nalagarh. The defendant also preferred counter-claim.
4. Plaintiff filed replication to the written statement filed by the defendant. Written statement was also filed to the counter-claim stating therein that the claim of the defendant was not maintainable since he had become owner in possession. Defendant also filed replication to the written statement filed to the counterclaim.
5. Learned Senior Sub Judge framed issues on 12.4.2004. He dismissed the suit vide judgment dated 17.4.2008 and partly decreed the counter-claim. Defendant/counter-claimant was held entitled for possession of the suit property. The claim for mesne profit @ ! 7,000/- per month was dismissed. Plaintiff preferred Civil Appeal No. 20-NL/ 13 of 2008 against the judgment and decree dated 17.4.2008. He filed Civil Appeal No. 2 1-NL/ 13 of 2008 against the judgment and decree dated 17.4.2008 passed by the Civil Judge (Senior Division), Nallagarh in Counter Claim No. 93/2008 whereby he decreed the counter-claim for the relief of possession. Defendant also filed Cross-Objections in appeal against the judgment dated 17.4.2008 passed by the Civil Judge (Senior Division), Nallagarh whereby he partly decreed the cross-objection and partly dismissed against the Cross-Objector. Learned Additional District Judge, Solan, Camp at Nalagarh dismissed Appeal Nos. 20-NL/13 of 2008 and 21-NL/13 of 2008. However, cross-objections No. 25-NL/ 13 of 2008 were partly decreed by allowing a sum of ! 2,000/- per month instead of ! 7,000/- per month towards mesne profit from the date of possession of the plaintiff, i.e. 1.7.2003
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