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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Kuldip Singh, J.
Bhadri - Appellants/Defendants.
Versus
Smt. Suma Devi - Respondents/Plaintiffs.
RSA No. 352 of 2001
Decided on : 19.10.2012
Will - Property Inheritance - Indian Succession Act, 1925 - Section 63 - Section 63 of the Indian Succession Act, 1925 was referenced and discussed by the court. The court analyzed the requirements for the execution of a Hindu Will as provided in Section 63 and emphasized the need for due attestation by witnesses. The court also highlighted the burden of proof on the propounder of the Will to remove any suspicion surrounding its execution. The court's decision was influenced by the failure to fulfill the requirements of Section 63 and the presence of suspicious circumstances surrounding the execution of the Will.
Fact of the Case:
The case involved a dispute over the validity of a Will dated 28.1.1988, which purported to be executed by late Ghungar Ram in favor of the defendants. The plaintiff, Smt. Narvada, challenged the validity of the Will, alleging that it was executed under suspicious circumstances and was the result of undue influence and coercion. The trial court decreed the suit in favor of the plaintiff, and the appeal filed by the defendants was dismissed by the district judge.
Finding of the Court:
The court found that the Will was shrouded by suspicious circumstances and was not executed in accordance with the requirements of Section 63 of the Indian Succession Act, 1925. The court held that the execution of the Will had not been proved and that it was the result of collusion and undue influence. The lower appellate court affirmed the findings of the trial court, leading to the dismissal of the appeal.
Issues: The issues included the validity of the Will, collusion in its execution, suspicious circumstances, mis-joinder of parties, valuation of the suit, and better particulars. The trial court decreed the suit, and the appeal was based on the substantial question of law regarding the existence of suspicious circumstances relied upon by the lower courts.
Ratio Decidendi: The court's decision was based on the failure to fulfill the requirements of Section 63 of the Indian Succession Act, 1925, for the execution of a Hindu Will. The court emphasized the need for due attestation by witnesses and the burden of proof on the propounder of the Will to remove any suspicion surrounding its execution. The court also considered the presence of suspicious circumstances and the lack of explanation for the exclusion of natural heirs in the Will.
Final Decision: The appeal was dismissed, and the court held that the execution of the Will had not been proved, and it was the result of collusion and undue influence. The court affirmed the findings of the lower appellate court, leading to the dismissal of the appeal with no order as to costs.
Kuldip Singh, Judge
1. This appeal is directed against judgment, decree dated 24.4.2001 passed by learned District Judge. Mandi, in Civil Appeal No. 34 of 1997 affirming judgment, decree dated 25.2.1997 passed by learned Senior Sub Judge, Mandi in Civil Suit No. 91/90 (187/92).
2. Smt. Narvada daughter of Ghungar, mother of respondents had filed a suit for declaration and joint possession against appellants and one Hima that Will dated 28.1.1988 of late Ghungar in favour of appellants No. 1 and 2 is wrong, illegal and void. The further pleaded case was that suit land measuring 71-15-13 bighas in Mauza Panyali/146 Illaqua Bagra was recorded in the joint ownership and possession of Ghungar deceased and Hima. Smt. Narvada and appellant No.3 are the daughters, appellant No.1 is widow and appellant No.2 is son of deceased Ghungar and are entitled to inherit his estate.
3. Ghungar father of Smt. Narvada was an old man and he used to remain ill and was confined to bed for more than one year prior to his death. Ghungar was also not in sound disposing state of mind on account of his illness. Ghungar died on 1.11.1988. The appellant No.1 claimed to have inherited alongwith appellant No.2 the entire estate of Ghungar of Muhal Panyali on the basis of Will allegedly executed by Ghungar. It has been alleged that Ghungar had not executed any Will. The Will projected by the appellants No. 1 and 2 was their creation in collusion with marginal witnesses. The Will is shrouded by suspicious circumstances. Smt. Narvada had cordial relations with her father. The Will was the result of undue influence and coercion. The Will dated 28.1.1988 was invalid document.
4. The appellants contested the suit by filing written statement, they took preliminary objections of better particulars, valuation, misjoinder, Order 2 Rule 2 CPC. On merits, it has been alleged that the suit land was partitioned prior to filing of the suit. Hima defendant was unnecessarily impleaded, Ghungar was not confined to bed. Ghungar had asked Smt. Narvada in Magh Bikrami 1988 A.D. that she had already been married but still if she wanted some property that could be given to her otherwise he would bequeath the property in favour of appellants No. 1 and 2. Smt. Narvada did not claim any property. Ghungar bequeathed his entire property in favour of appellants No. 1 and 2 in full senses, the Will dated 28.1.1988 is genuine. Ghungar and Hima, defendant were co-owners. Ghungar applied for partition and on his failure in partition proceedings, Hima persuaded Smt. Narvada to file the suit. Ghungar had executed the Will of the suit property in favour of the appellants No. 1 and 2, he bequeathed his land in Muhal Chahari in favour of Sunder Singh. The defence of Hima was struck off by the order of the Court.
5. The replication was filed. On the pleadings of the parties, the following issues were framed:-
1. Whether the Will No. 23 dated 28.1.1988 purported to have been executed by late Ghungar Ram in favour of the defendants No. 1 and 2 is invalid, null and void as alleged? If so, its effect? OPP
2. Whether the Will in dispute is an outcome of collusion of the defendant No.1 with the defendant No.2 in collaboration with the scribe and marginal witnesses as alleged? If so, its effect? OPP
3. Whether the Will in dispute is prepared under highly suspicious circumstances and is the result of undue influence and coercion as alleged? OPP
4. Whether the suit is bad for mis-joinder of necessary parties? OPD
5. Whether the suit is barred by the principle of Order 2 Rule 2 CPC? OPD
6. Whether the suit has not been rightly valued for the purpose of Court fee and jurisdiction? If so, what is correct valuation? OPD
7. Whether the better particulars as sought by the defendants have not furnished? If so, its effect? OPD
8. Whether the suit land has not been rightly described as per the latest revenue entry and the land has since been partitioned? If so, its effect? OPD
9. Relief.
The issues No. 1 t
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