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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Satyen Vaidya, J.
Sh. Uttam Ram @ Uttam Singh Son Of Sh. Singh Son Of Sh. Lala - Appellant
Vs.
Smt. Purnu Widow Of Late Sh. Dhanna - Respondent
Regular Second Appeal No. 261 Of 2009
Decided On : 30-09-2022
Code of Civil Procedure, 1908 - Section 96 - Indian Succession Act - Section 63 - Evidence Act - Section 68 - Second appeal - Civil Suit - Execution of Will - Document fabricated - Whether the deceased executed legal and valid Will dated 17.3.97 in a sound state of mind, in favour of defendants Nos. 1 to 5 as alleged - Whether the plaintiffs are the joint owner in possession of the suit land alongwith the defendants Nos. 6 to 9, as alleged - Whether the suit is not maintainable - Whether plaintiffs are entitled for the relief of the permanent prohibitory injunction, as prayed - No material has been placed on record to show that her mental or physical health was not proper at the time of execution of Will. (Para 26).
Findings of Court: Appellate Court has also attached more than required attention to fact that the names of marginal witnesses were not typed on the Will, whereas the names of testatrix and identifier were typed. Learned lower Appellate Court has thus drawn an inference that the Will was not genuine. The cross-examination of DW-2 scribe of Will reveals that no question was put to him in respect of non-typing of the names of witnesses. In absence of any such clarification being sought from DW-2, the inference drawn by learned lower Appellate Court cannot be said to be justified. The only important aspect was the execution of the Will in accordance with the provisions of section 63 the Indian Succession Act and placing it on record as legal piece of evidence as per Section 68 of the Evidence Act. Both the conditions stood satisfied in the case. DW-4 and DW-5 had admitted their signatures on the Will as marginal witnesses. Their testimonies were not shattered on the issue of execution of Will. In this view of the matter, even if the names of marginal witnesses were not typed, could not have been taken as a circumstance much less suspicious circumstance to discredit the entire execution of the Will.
Result: Appeal disposed of.
JUDGMENT :
By way of this second appeal, the appellants have assailed judgment and decree dated 24.04.2008 passed by learned District Judge, Mandi, H.P. in Civil Appeal No. 10 of 2005 whereby the judgment and decree dated 01.12.2005 passed by learned Civil Judge (Sr. Division), Mandi, District Mandi, H.P. in Civil Suit No. 4/2002 has been reversed.
2. The parties hereinafter shall be referred to the same status which they held before the learned trial Court.
3. Saraswati had five sons namely Dhanna, Singh, Dhandev, Bhagat Ram and Khajana and also had six daughters, who were married. Dhanna had pre-deceased his mother. Plaintiffs are the successors of Dhanna. Defendants No. 6 to 9 were the other sons of Saraswati, whereas defendants No. 1 to 5 are the grand-sons of Saraswati.
4. After the death of Saraswati, a dispute arose in respect of her estate. Defendants No. 1 to 5 claimed inheritance to the estate of Saraswati on the strength of registered Will dated 17.3.1997 executed by Saraswati. Plaintiffs raised dispute regarding execution of Will and alleged the same to be a document fabricated by the plaintiffs. It was also alleged that taking advantage of old age, illiteracy, feeble state of mind, physical incapacity of Saraswati, defendants had manipulated a forged Will dated 17.3.1997 in her name. It was further alleged that Saraswati had relinquished her share in favour of the plaintiffs. As per plaintiffs, they were in possession of the property which fell to the share of Saraswati.
5. Defendants contested the suit by filing separate written statements. Whereas, defendants No. 2 to 4 filed a separate written statement, defendants No. 1, 5 and 7 to 9 joined to file another written statement. The common grounds of objections were as to maintainability of the suit, cause of action, valuation, estoppel and limitation etc. On merits, the allegations levelled in the plaint were denied in generality. It was specifically pleaded that Saraswati had executed legal and valid Will dated 17.3.1997 in favour of defendants No. 1 to 5. The plea of Saraswati having relinquished her share in favour of plaintiffs was denied. The Will executed by Saraswati on 17.3.1997 was stated to be her genuine Will having been executed by Saraswati in sound disposing state of mind and further having been registered with the Sub Registrar, Mandi.
6. On the basis of pleadings of the parties, learned trial Court framed the following issues:
2. If issue No.1 is proved in affirmative, whether the alleged Will executed by Saraswati Devi, on dated 17.3.97 is forged and fictitious documents? OPP
3. If issue No.2 is proved in affirmative, whether the deceased Saraswati Devi, relinquished her share, in favour of the plaintiff, during her life time, if so its effect? OPP
4. Whether the plaintiffs are the joint owner in possession of the suit land alongwith the defendants Nos. 6 to 9, as alleged? OPP
5. Whether the plaintiffs are entitled for the relief of the permanent prohibitory injunction, as prayed? OPP
6. Whether the suit is not maintainable? OPD
7. Whether the plaintiff has no cause of action? OPD
8. Whether the suit is not properly valued for the purposes of Court fees and jurisdiction, if so, what is the correct valuation? OPD
9. Whether the suit is barred by limitation? OPD
10. Relief.
Learned trial Court decided issues No.1 and 4 in affirmative, all other issues were decided in negative. The suit of the plaintiffs was accordingly dismissed. The Will dated 17.3.1997 was held to be legal and valid document having been executed by Saraswati in favour of defendants No. 1 to 5. Plaintiffs were also held to be joint owners in possession of the suit land alongwith defendants No. 6 to 9.
7. The plaintiffs assailed the judgment and decree passed by learned trial Court in First Appeal under Section 96 of the Code of Civil Proced
Point of Law : The only important aspect was the execution of the Will in accordance with the provisions of section 63 the Indian Succession Act and placing it on record as legal piece of evidence as....
The propounder of a Will must dispel any suspicious circumstances surrounding its execution to establish its validity.
(1) Proof of execution of Will – Mere nomenclature of a person in Will as an Identifier is not sufficient to hold that Will was not attested by two witnesses.(2) High Courts should restrain itself fr....
A will's validity must be proven beyond suspicion, especially when claims of fraud or undue influence arise; the burden of proof lies on the party benefiting from the will under suspicious circumstan....
The main legal point established in the judgment is the fulfillment of legal requirements for proving a Will and the production of sufficient evidence to remove suspicious circumstances, thereby upho....
The court ruled that the validity of a Will under the Indian Succession Act requires strict compliance with execution standards, and civil courts lack jurisdiction over intestate succession matters.
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