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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Chander Bhusan Barowalia, J.
Hukmi Devi & another – Appellants
Versus
Madan – Respondent
RSA No. 387 of 2007
Decided On : 30-10-2017
Will - Property Dispute - Indian Succession Act, 1925, Section 63, Indian Evidence Act, 1872, Section 68 - The court found that the Will, dated 19.10.2000, executed by Shri Burfia in favor of the defendant was not shrouded by suspicious circumstances and was legally valid. The court also held that the findings of the lower courts were not the result of misreading, misconstruction, or misinterpretation of the evidence. The court further concluded that the lower appellate court had properly dealt with the appeal filed by the plaintiffs, and no interference by the higher court was required.
Fact of the Case:
The original plaintiff sought declaration and injunction against the defendant regarding the ownership and possession of certain land. The defendant claimed that Shri Burfia executed a valid Will in his favor due to the original plaintiff's inability to look after Shri Burfia.
Finding of the Court:
The court found that the Will executed by Shri Burfia in favor of the defendant was valid and not shrouded by suspicious circumstances. The court also upheld the findings of the lower courts and concluded that the lower appellate court had properly dealt with the appeal filed by the plaintiffs.
Issues: The issues included the validity of the Will, the ownership and possession of the land, and the findings of the lower courts.
Ratio Decidendi: The court's decision was based on the validity of the Will, the absence of suspicious circumstances, and the proper handling of the appeal by the lower appellate court.
Final Decision: The appeal was dismissed, and the parties were left to bear their own costs.
Chander Bhusan Barowalia, J.
The present regular second appeal has been maintained by the appellants, who are legal representatives of Shri Dhani Ram (since dead), the original plaintiff, (hereinafter referred to as “the plaintiffs”), laying challenge to the judgment and decree, dated 10.05.2007, passed by the learned Additional District Judge, Shimla, District Shimla, H.P., in Civil Appeal No. 1-S/13 of 2004, whereby the appeal filed by the plaintiffs against the judgment and decree, dated 21.04.2004, passed by the learned Civil Judge (Junior Division), Court No. 1, Shimla, H.P., in Civil Suit No. 107/1 of 2002, dismissing the suit of the original plaintiff, Shri Dhani Ram, was partly allowed.
2. The key facts of the case can tersely be summarized as under:
The original plaintiff maintained a suit seeking declaration with consequential relief of permanent prohibitory injunction against the respondent/defendant (hereinafter referred to as “the defendant”) qua land comprising in Khata No. 60, Khatauni No. 135, Kitta 5, measuring 1-20-76 hectares, situated in Mauja Jaisi, Pargana Saraj, Tehsil Suni, District Shimla, as depicted in jamabandi for the year 1996-97 and the land comprising in Khata No. 84, Khatauni No. 170 to 171, Khasra Kitta 11, measuring 0-54-14 hectares, situated in Mauja Bharara, Pargana Saraj, Tehsil Suni, District Shimla, as depiected in jamabandi for the year 12997-98 (hereinafter referred to as “the suit land”).
As per the original plaintiff, his father, Shri Shibu and one Shri Burfia were real brothers living together in Village Jaishi, Tehsil Suni, District Shimla. The original plaintiff further contended that Shri Shibu and Shri Burfia were sons of Shri Sugru and co-owners of the suit land. After the death of Shri Shibu, the original plaintiff succeeded his half share and became co-owner in the suit land alongwith Shri Burfia. The original plaintiff has further contended that Shri Burfia was issueless and he was being looked after by him, so Shri Burfia executed a Will, dated 23.01.1990, bequeathing his property in favour of original plaintiff. Shri Burfia died on 27.07.2002 without any issue otherwise also the original plaintiff, being only legal heir, had succeeded the estate of Shri Burfia. As per the original plaintiff, as he alone succeeded the share of Shri Burfia, he is exclusive owner-in-possession of the suit land and the defendant has no right and interest in the same. The original plaintiff further contended that the defendant was not related to Shri Burfia, so there was no occasion to execute any Will in his favour. As per the original plaintiff, Will dated 19.10.2000, as alleged by the defendant, is null and void. Shri Burfia was not physically capable to execute a Will on that date. The defendant cannot fetch any benefit under Will dated 19.10.2000. The cause of action arose in favour of the original plaintiff when the defendant on the basis of Will threatened to interfere in plaintiff’s exclusive possession over the suit land. Therefore, the original plaintiff, maintained a suit seeking a decree of declaration with consequential relief of injunction.
3. The defendant, by way of filing written statement, contested and resisted the suit of the plaintiff. He raised preliminary objections, viz., cause of action, valuation, non-joinder of necessary parties, maintainability, etc. On merits, the defendant admitted that Shri Shibu was father of the original plaintiff and Shri Burfia was real brother of Shri Shibu having lands in two revenue estates. He has further admitted that Shri Burfia had died. The defendant contended that Shri Shibu had settled in Village Bharara and Shri Burfia got settled in Village Jaishi and he himself was looking after his property there. As per the defendant, Village Jaishi is about four kilo meters from Village Bharara and the original plaintiff or his father did not visit village Jaishi. He has further averred that the plaintiff was suffering from paralysis for s
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