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2014 Supreme(HP) 2086
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Tarlok Singh Chauhan, J
Anant Ram - Appellant
Versus
Bhup Chand - Respondent
R.S.A. No. 491 of 2002
Decided On : 17-09-2014
Advocate Appeared:
For the Appellant :Sanjeev Kuthiala, Advocate
For the Respondent:G.R. Palsra, Advocate
The main legal point established in the judgment is the strict requirements for the attestation of a Will and the role of the Registrar in the attestation process.
Headnote:
Will - Property Dispute - Indian Evidence Act, 1872, Indian Registration Act, 1908 - Sections 68, 59, 63 - The court discussed the validity of the Will executed by the deceased and the attestation of the document by the Sub Registrar. The court emphasized the requirements for attestation of a Will and the role of the Registrar in the attestation process. The court held that the evidence presented did not meet the legal requirements, leading to the dismissal of the appeal.
Fact of the Case:
The plaintiff filed a suit claiming ownership and possession of a piece of land based on a registered Will executed in his favor by the deceased. The defendants contested the suit, denying the validity of the Will and claiming rightful possession of the land.
Finding of the Court:
The trial court and the lower appellate court dismissed the plaintiff's suit, leading to the plaintiff's appeal before the present court.
Issues: The issues included the validity of the Will, ownership and possession of the land, interference by the defendants, maintainability of the suit, cause of action, proper valuation, and the authenticity of the Will.
Ratio Decidendi: The court focused on the requirements for attestation of a Will and the role of the Sub Registrar in the attestation process. It emphasized the lack of evidence to meet the legal requirements for attestation, leading to the dismissal of the appeal.
Final Decision: The court found no merit in the appeal and dismissed it, leaving the parties to bear their own costs.
JUDGMENT :
Tarlok Singh Chauhan, J.
The plaintiff is the appellant and has come up in appeal against concurrent findings recorded against him by the learned Courts below.
2. The facts, in brief, are that the plaintiff/appellant filed a suit bearing No. 134 of 1997 in the Court of Ld. Sub Judge 1st Class, Sarkaghat with the assertions that land comprised in Khata Khatauni No. 56/137 min Khasra Nos. 246 to 250, 270/1 kita 6 measuring 0-31-10 hectare situate in village Bera, Illaqua Bhadrota, Tehsil Sarkaghat, District Mandi, H.P. (hereinafter referred to as the 'suit land'). The suit land is recorded in the ownership and possession of one Smt. Malti deceased and a note with red ink in the remarks column on the ground that the suit land has been treated in the name of the respondents as per jamabandi in respect of the suit land in the year 1991-92. He further pleaded that deceased Malti executed registered Will dated 30.8.1971 in respect of the suit property in favour of the appellant. The respondent Bhup Chand earlier filed a civil suit for declaration to the effect that Will executed by the deceased Smt. Malti be declared null and void with the further prayer that possession of the suit land be delivered in favour of the respondents. However, the suit was finally dismissed by learned Sub Judge 1st Class, Sarkaghat on 16.8.1978. Smt. Malti during her life time, remained in exclusive possession of the suit land and after her death, appellant is in exclusive possession of the suit land by virtue of the registered Will executed in his favour by late Smt. Malti. The respondent despite knowledge, suppressed even facts from the knowledge of the revenue authorities and in collusion with the revenue staff, they got mutation qua the suit land attested in their favour. The appellant was neither informed about the fact of mutation nor he was given an opportunity of being heard. The respondents without any right, title or interest in the suit land taking undue advantage of the wrong mutation, they got started causing unnecessary interference over the suit land by forcibly ploughing the same. They also destroyed the crop of the appellant when they were asked to desist from illegal activities, they did not admit the claim of the appellant and therefore, the appellant is entitled for decree of permanent prohibitory injunction against the respondents and in the alternative, appellant also sought relief of possession in case during the pendency of the suit, the respondents take forcible possession of the suit land.
3. The respondents contested the suit by filing written statement and thereby raising preliminary objections qua maintainability, cause of action, proper valuation and on merits, they denied the facts pleaded by the appellant and further pleaded that the mutation in respect of the suit land in their favour has been rightly attested. Deceased Smt. Malti being their step mother, they had every right to inherit the same. They also denied that deceased Smt. Malti executed any Will and document produced by the appellant is fictitious, false and illegal which was never executed by Smt. Malti. They also claimed that the entry in the revenue papers is correct. They being in possession, there arise no question of any interference in the possession of the appellant.
4. In the replication filed by the plaintiff/appellant, the averments contained in the plaint were reiterated and the assertions made in the written statement by the defendants were denied.
5. On 17.11.1997 the learned trial Court framed the following issues:
1. Whether deceased Malti has executed a valid Will of her property in favour of plaintiff? OPP
2. Whether the plaintiff is owner in possession of the suit land? OPP
3. Whether the defendants interfere in the ownership and possession of the plaintiff over the suit land? OPP
4. Whether the suit is not maintainable? OPD
5. Whether there is no cause of action to file the present suit? OPD
6. Whether the suit is not properly valued for the pur
