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IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
Satyen Vaidya, J.
Shri Nikku Ram S/o Shri Samundu – Appellant
Versus
Shri Budhi Ram (Since Deceased) Through Legal Representatives:- Smt. Ajudhiya devi (wife) - Respondents
Regular Second Appeal No.566 Of 2011
Decided On : 29-08-2022
Indian evidence Act - Section 62, 65 and 68 – Suit for decree of possession - Permanent prohibitory injunction - Proof of execution of document required by law to be attested - Execution of a Will - Whether findings of Courts below are a result of complete misreading of pleadings, evidence and law as applicable to facts of case and particularly documents and as such palpably erroneous and illegal and if so to what effect - Whether in face of oral and documentary evidence produced in the case the Courts below were justified in holding as a legal and valid Will of late Shri Samundu by discarsding earlier Will - Neither Will propounded by defendant No.1 was proved to exist nor its due execution was proved in accordance with law. Contrary findings recorded by both the learned Courts below thus needs interference being palpably wrong. Undoubtedly, such findings have been recorded by ignoring provisions of law which renders such findings perverse. (Para 20)
Finding of the court: Section 65 of the Act provides for conditions in which secondary evidence can be allowed to be lead by the Courts. In the facts of the instant case neither any case was made out by the defendants for leading secondary evidence nor any permission was sought in that behalf from the Court. In such circumstances, the document i.e. Will dated 03.04.1999 cannot be said to be proved as the primary evidence (original Will) was not produced on record - In any case, plaintiff was allowed to lead secondary evidence and he had proved the document in accordance with law. Its due execution was also proved by PW-4 and PW-5 being its attesting witnesses. Both the learned Courts below have concurrent held the Will Ex.PW2/A to have been duly proved and in view of the above discussion no interference is required in such findings.
Result: Appeal is allowed
JUDGMENT :
1. The appellant assails judgment and decree dated 28.09.2011 passed by learned District Judge, Bilaspur in Civil Appeal No. 22 of 2009, whereby the judgment and decree dated 30.04.2009 passed by learned Civil Judge (Senior Division), Bilaspur, in Civil Suit No. 106-1 of 2002, dismissing the suit of the plaintiff was affirmed.
2. The parties herein shall be referred by the same status as they held before the learned trial Court. The appellant herein is the plaintiff and respondents No.1 and 2 are the defendants and respondents No.3 and 4 are the proforma defendants.
3. Plaintiff filed a suit seeking declaration to the effect that plaintiff and proforma defendants were owner in possession of the suit land on the basis of Will dated 16.03.1999 executed by late Shri Samundu with further declaration to declare the Will dated 03.04.1999 of Shri Samundu as null and void on the ground that Shri Samundu did not execute the said Will with free mind or without pressure. A decree of permanent prohibitory injunction was also sought against the defendants from causing any interference in the suit land and the house situated thereon. In the alternative a decree of possession, in case of dispossession of the plaintiff during the pendency of the suit was also prayed for.
4. As per plaintiff, late Shri Samundu was father of plaintiff, defendants No.1 to 3 and husband of proforma defendant No.4. Defendant No.2 was stated to be son of late Shri Samundu from his second wife Smt. Devo i.e. proforma defendant No.4. Plaintiff, defendants No.1 and 3 were stated to be the sons of late Shri Samundu from his first wife namely Smt. Durgi. Plaintiff claimed that late Sh. Samundu had executed a Will dated 16.03.1999 bequeathing his properties in favour of plaintiff and proforma defendants. The Will was also claimed to be registered with Sub Registrar, Bilaspur, on the same day i.e. on 16.03.1999. The plaintiff also averred that the original Will executed by late Shri Samundu on 16.03.1999 was destroyed by defendant No.1 by putting the same on fire. Plaintiff could retrieve some burnt pieces of the document.
5. According to the plaintiff, the defendants got mutation No.256 attested after death of Shri Samundu on 25.01.2001 on the basis of another Will dated 03.04.1999 allegedly executed by late Sh. Samundu. The Will dated 03.04.1999 was alleged to be result of fraud, misrepresentation and undue influence. Plaintiff pleaded the date of knowledge about executed of Will dated 03.04.1999 to be after attestation of mutation No.256.
6. Written statement was filed on behalf of the defendants. Preliminary objections as to maintainability, lack of cause of action, estoppel etc., were raised. On merits, it was specifically pleaded that Will dated 16.03.1999 had been revoked by late Shri Samundu by executing his last Will dated 03.04.1999. It was also alleged that the Will dated 16.03.1999 was result of fraud, mis-representation and undue influence. On the basis of subsequent Will of late Shri Samundu, dated 03.04.1999, the defendants claimed themselves to be owner in possession of the suit land. As per defendants, late Shri Samundu had thrown the original Will dated 16.03.1999 into fire, when he was made to understand by his grandson Shri Prakash Chand that his two sons had been disinherited under the Will dated 16.03.1999. The allegations of Will dated 16.03.1999 being burnt by defendant No.1 were denied.
7. On the basis of pleadings of the parties, following issues were framed: -
2. Whether the plaintiff and proforma defendants are owners in possession of the suit land, as alleged? OPP.
3. Whether the “Will” dated 03.04.1999 executed by Samundu in favour of the parties to the suit is valid and legal “Will”? OPD
4. Whether the suit is not maintainable? ...OPD
5. Whether the plaintiff has no cause of action, as alleg
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