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2019 Supreme(HP) 728
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
AJAY MOHAN GOEL, J.
Jagdish Chand - Appellant
Versus
Jai Kishan - Respondent
Regular Second Appeal No. 48 of 2008
Decided On : 19-09-2019
V.S. Chauhan, Adv., Vivek Darhel, Adv., Rahul Mahajan, Adv.
The validity of conflicting wills and the presumption of genuineness attached to a registered will under Section 60 of the Registration Act.
Headnote:
Will Dispute - Property Ownership - Registration Act, Section 60 - Fraud, Misrepresentation - [Registration Act, Section 60] - The court discussed the validity of two conflicting wills and the presumption of genuineness attached to a registered will under Section 60 of the Registration Act. It also considered the timing of the execution of the subsequent will, allegations of fraud and misrepresentation, and the surrounding circumstances. The court found that the subsequent will was valid and genuine, and there was no requirement for the testator to refer to any previous will executed by him/her in the subsequent will.
Fact of the Case:
The plaintiff filed a suit for declaration as the legal heir of deceased Kaulan Devi based on a will dated 21.09.1992, challenging a subsequent will dated 11.01.1993 in favor of the defendant. The defendant claimed to be the sole successor based on the later will.
Finding of the Court:
The court found in favor of the defendant, upholding the validity of the subsequent will and the mutations attested in his favor. The plaintiff's suit was dismissed as he failed to prove that the subsequent will was a result of fraud or misrepresentation.
Issues: Validity of conflicting wills, property ownership, mutations, fraud, misrepresentation, time bar, estoppel, vagueness, unauthorized agent, and the execution of the subsequent will.
Ratio Decidendi: The subsequent will was found to be valid and genuine, and the plaintiff failed to prove fraud or misrepresentation. The court emphasized that there was no requirement for the testator to refer to any previous will in the subsequent will.
Final Decision: The appeal was dismissed, and the judgment and decree of the lower courts were upheld.
JUDGMENT :
Ajay Mohan Goel, J.
By way of this appeal, appellant/plaintiff has challenged the judgment and decree passed by the Court of learned Civil Judge (Sr. Divn.), Baijnath, District Kangra, H.P. in Civil Suit No. 45/05, decided on 21.03.2005, vide which, learned Trial Court dismissed the suit filed by the present appellant/plaintiff for declaration, as also the judgment and decree passed by the Court of learned District Judge, Kangra at Dharamshala, District Kangra (HP), in Civil Appeal No. 59-B/XIII/2005, dated 28.09.2007, whereby learned Appellate Court while dismissing the appeal filed by the present appellant/plaintiff, upheld the judgment and decree passed by the learned trial Court.
2. Brief facts necessary for adjudication of the present appeal are as under:-
Appellant/plaintiff Jagdish Chand filed a suit for declaration on the ground that he was the legal heir of deceased Kaulan Devi as per her Will dated 21.09.1992 and had thus become owner in possession of the suit land bearing Khata No. 5 min, Khatauni No. 10, Khasra Nos. 135, 136 and 139, measuring 0-04-89 hectares and of Khata No. 8, Khatauni No. 47, Khasra No. 134, measuring 0-01-40 hectares situated at Mohal-Madho Nagar, Mauja Lanod, Tehsil Baijnath, Distt. Kangra (HP) (hereinafter referred to as the 'suit land') and Will dated 11.01.1993 alleged to be executed by deceased Kaulan Devi in favour of defendant was wrong, illegal, null and void, result of fraud and misrepresentation and not binding on the plaintiff. It was further the case of the plaintiff that mutation Nos. 306, 316 and 318 attested on the basis of Will in the name of defendant were also null and void. Plaintiff also prayed that a consequential relief of permanent prohibitory injunction by restraining the defendant from taking forcible possession of the suit land or alienating the suit land.
3. The suit of the plaintiff was resisted by the defendant on the ground that Kaulan Devi was looked after and maintained by the defendant and accordingly, she executed her last and valid Will dated 11.01.1993 in his favour. As per him, Kaulan Devi had not executed any other Will in favour of anyone, except the defendant, and thus, he was the only successor of deceased Kaulan Devi. It was the case of the defendant that plaintiff was fully aware about the presentation of the Will dated 11.01.1993 before the Patwari and attestation of mutation in pursuance thereof and mutations have rightly been attested in favour of the defendant. According to the defendant, Will executed by deceased Kaulan Devi in his favour was a result of free will of the testator as she was served upon by the defendant and even her last rites were performed by the defendant.
4. On the basis of pleadings of the parties, learned Trial Court framed the following issues:-
"1.Whether the plaintiff is entitled for the relief of declaration, as prayed for? OPP
2. Whether the plaintiff is legal heir of deceased Kaulan Devi on the basis of Will dated 21.9.1992 and is exclusive owner in possession of the suit land, as alleged? OPP.
3. Whether the mutation No. 306 dated 3.12.1998 and mutation Nos. 316 and 318 dated 7.8.1999 sanctioned in favour of the defendant on the basis of Will dated 11.1.1993 are null and void and result of fraud and mis-representation and are not binding upon the plaintiff as alleged? OPP.
4. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction, as prayed for? OPP
5. Whether the suit is time barred? OPD
6. Whether the plaintiff is estopped by his act and conduct from filing the present suit? OPD
7. Whether the suit is vague and therefore liable to be dismissed, as alleged? OPD
8. Whether the suit is filed by unauthorised agent of the plaintiff, as alleged? OPD
9. Whether Kaulan Devi has executed a valid Will in favour of the defendant on 11.1.1993 out of her sweet Will, as alleged? OPD.
10. Relief."
5. On the basis of pleadings and evidence led by the parties in support of their respective cases, the Issues s
