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2012 Supreme(HP) 1048
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Sanjay Karol, J.
Maro (Dead) Through L.R. - Appellant
Vs.
Khillo Tirath Ram - Respondent
RSA No. 315 of 2002
Decided On : 20-03-2012
Advocate Appeared:
For the Appellant :Ms Jyotsna Rewal Dua, Advocate
For the Respondent:Mr. Karan Singh Kanwar, Advocate
The main legal point established in the judgment is the significance of due compliance with legal provisions for the execution and attestation of a Will, as well as the principles governing the proof of a Will as per the relevant statutes and legal precedents.
Headnote:
Will - Valid attestation and execution - Section 63 of the Indian Succession Act, 1925, Section 68 of the Indian Evidence Act, 1872, and Section 3 of the Transfer of Property Act - The court analyzed the compliance of provisions of the Succession Act, Evidence Act, and Transfer of Property Act in the execution and attestation of a Will. The judgment discussed the principles of attestation, execution, and proof of a Will, and emphasized the importance of due compliance with legal requirements.
Fact of the Case:
Plaintiff filed a suit challenging the validity of a Will and claiming half share in the estate of the deceased. The defendant, the deceased's daughter, asserted that the Will was executed in her favor due to her care for the deceased. The trial court rejected the Will for lack of due compliance with legal provisions, and the lower appellate court upheld the decision.
Finding of the Court:
The court found that the defendant had established due compliance with the provisions of the Succession Act, Evidence Act, and Transfer of Property Act in the execution and attestation of the Will. It concluded that the lower courts had incorrectly appreciated the evidence, resulting in a wrongful decision. The court dismissed the plaintiff's suit and set aside the judgments of the lower courts.
Issues: The main issue was whether there was full and substantial compliance with the provisions of the Succession Act, Evidence Act, and Transfer of Property Act in the execution and attestation of the Will. The court also addressed the misreading and misappreciation of evidence by the lower courts.
Ratio Decidendi: The court emphasized the importance of due compliance with legal requirements for the execution and attestation of a Will. It highlighted the principles of attestation, execution, and proof of a Will as per the relevant statutes and legal precedents. The court also clarified the circumstances under which a second appeal can be entertained based on erroneous findings of fact.
Final Decision: The court reversed the findings of the lower courts, set aside their judgments, and dismissed the plaintiff's suit.
JUDGMENT :
Sanjay Karol, J.
This is defendant's Regular Second Appeal filed under Section 100 of the Code of Civil Procedure . Plaintiff Smt. Khillo filed Civil Suit No.96/1 of 2000, titled Smt. Khillo v. Smt.Maro, for declaration and possession, with respect to the suit land against defendant Smt. Maro, her real sister. The same was decreed by the Court of Sub Judge 1st Class, Court No.1, Paonta Sahib, District Sirmour, in terms of judgment and decree dated 17th September, 2001. In the defendant's Civil Appeal No.17-N/13 of 2001, titled Smt. Maro v. Smt. Khillo, learned District Judge, Sirmour at Nahan, has affirmed the judgment and decree, vide its judgment and decree dated 15th June, 2002.
2. The present appeal stands admitted on the following substantial questions of law:
"1. What is the effect of the statements of the witnesses which are shown to have been made without oath?
2. Whether there has been misreading and mis-appreciation of evidence in the present case?
3. Whether the suit of the plaintiff was barred by time?"
3. I have heard Ms. Jyotsna Rewal Dua, learned counsel for defendant-appellant, Mr. Karan Singh Kanwar, learned counsel for plaintiff-respondent and perused the record. Learned counsel have relied upon decisions rendered by various Courts, including the Apex Court.
Ms Jyotsna Rewal Dua has referred to the following decisions:
1. Naresh Charan Das Gupta v. Paresh Charan Das Gupta and another, AIR 1955 SC 363.
2. Ram Lal v. Hari Kishan, AIR 1988 Delhi 73.
3. Damodhar Bordoloi v. Mrinalini Devi Trust Board and others, AIR 1999 Gauhati 53.
Whereas, Mr. Karan Singh Kanwar has referred to the following decisions:
1. Lalitaben Jayantilal Popal v. Pragnaben Jamnadas Kataria and others, (2008) 15 SCC 365.
2. Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh and others, (2009) 4 SCC 780.
3. Gopal Swaroop v. Krishna Murari Mangal and others, (2010) 14 SCC 266.
4. Learned counsel for the parties agree that only substantial question of law No.2 arises for consideration in the instant appeal. While elucidating this substantial question of law, learned counsel addressed only on the issue of due attestation of the Will as required in law.
5. The moot point, therefore, for consideration is as to whether there is full and substantial compliance of provisions of Section 63 of the Indian Succession Act, 1925 (hereinafter referred to as the Succession Act), Section 68 of the Indian Evidence Act, 1872 (hereinafter referred to as the Evidence Act) and Section 3 of the Transfer of Property Act, 1882 (hereinafter referred to as the Transfer of Property Act).
6. Facts are not much in dispute. Plaintiff and defendant are real sisters, born from Shri Ganga Ram, who expired on 11th January, 1996. Allegedly said Shri Ganga Ram left a registered Will dated 20th December, 1988 in favour of defendant Smt. Maro which was propounded in the year 2000. Aggrieved thereof, on 25th August, 2000, plaintiff Smt. Khillo instituted a suit for declaration to the effect that the said Will is invalid and she is entitled to half share in the estate of late Shri Ganga Ram. She also claimed possession to the extent of her share.
7. Defendant Smt. Maro resisted the suit, inter alia, on the ground that she and her husband lived with Shri Ganga Ram, who had accepted her husband as a "Ghar Jamai". Since they were looking after Shri Ganga Ram, out of love and affection in a sound disposing state of mind, he willed the property exclusively in her favour, excluding the plaintiff who was otherwise well settled and compensated.
8. Based on the pleadings of the parties, trial Court framed the following issues:
1. Whether plaintiff is entitled for declaration sought for? OPP
2. Whether deceased Ganga Ram executed a valid Will in a sound disposing state of mind. If so, its effect? OPD
3. Whether Will dated 20.12.1988 is a forged and fraudulent document? OPP
4. To what relief the plaintiff is entitled? OPP
5. Relief.
9. Trial Court rejected the Will on the ground that the defendant ha
