Sh. Subhash Chand and others vs Smt. Jamna Devi

The defendants are the appellants and have come up in appeal against concurrent findings recorded against them by the learned Courts below

The facts as necessary for the adjudication of the case are that the respondent/plaintiff (hereinafter referred to as the ''plaintiff'') filed a suit for declaration to the effect that she is owner in possession of the land measuring 30.12 bighas comprised in Khasra Nos. 37, 46, 55, 66, 69, 70, 414/104, 105, 129, 137, 139 and 143, Kitta 12, Khata/Khatoni No. 38/48 situated in Village Bhanjwani, Pargna Gehrwin, Tehsil Ghumarwin, District Bilaspur, H.P. (hereinafter referred to as the ''suit land''). It was averred that the father of the plaintiff expired on 16.9.2000 and the plaintiff is only successor of entire moveable and immoveable property. Mother of the plaintiff had died during the childhood of the plaintiff and on attaining maturity she had served her father who had all love and affection towards her. After the marriage, the plaintiff was divorced by her husband and her father could not have thought to disinherit her. Since her divorce from her husband on 29.4.1973 she stayed with her father. The father of the plaintiff late Sh. Prema Ram was ill and became feeble minded 3-4 months before his death and he was not able to understand his right and wrong. On 9.8.2000 the plaintiff had gone to Bilaspur for medical treatment and thumb impression of father of the plaintiff was obtained by the defendants taking the advantage of the absence of the plaintiff. It was alleged that the father of the plaintiff used to put signatures and there was no reason for him to put his thumb impression on any document and the alleged Will dated 9.8.2000 is the result of fraud, misrepresentation and undue influence. The cause of action arose to the plaintiff on 3.10.2000 when she came to know about the Will dated 9.8.2000 and that a mutation was sanctioned on the basis of allegedly forged Will. It was averred that the mutation No.430 on the basis of alleged Will dated 9.8.2000 is wrong, illegal, null and void and the alleged Will is the result of fraud and misrepresentation and prayed for a decree of permanent prohibitory injunction restraining the defendants from interfering in the suit land.

The suit was contested by the defendants by filing written statement wherein preliminary objections qua maintainability, cause of action, suit not being properly valued for the purpose of court fee and jurisdiction, estoppel, limitation and non-joinder of necessary parties were taken. It was averred that the defendants are holding the possession of the suit land for the last 30 years and father of the plaintiff was residing with the father of defendants. The plaintiff had married in village Nerash and was residing with her husband. The defendants are owner in possession of the suit land by way of Will dated 9.8.2000 executed by Prema Ram, who disinherited his daughter as he suspected that the suit land shall be sold by her under the influence of her husband Sada Ram. It was averred that the father of the plaintiff late Sh. Prema Ram and plaintiff were maintained and looked after by the defendants. The plaintiff was quite aware regarding her disinheritance as this matter was already disclosed to her at the time of execution of Will. It was denied that Prema Ram became feeble minded 3-4 months before his death and prayed that the suit be dismissed.

In replication, the plaintiff reasserted her case and denied the pleadings made by the defendants in the written statement.

From the pleadings of the parties, the learned trial Court on 17.3.2007 framed the following issues:

Whether the plaintiff is entitled for the relief of declaration as prayed for? OPP

Whether the mutation No. 430 on the basis of Will dated 9.8.2000 is illegal, wrong, null and void as alleged? OPP

Whether the Will dated 9.8.2000 is the result of fraud, misrepresentation and undue influence as alleged? OPP

Whether suit of the plaintiff is not maintainable as alleged? OPD

Whether no cause of action has accrued to the plaintiff as alleged? OPD

Whether the plaintiff is estopped to file the present suit as alleged? OPD

Whether the suit is time barred as alleged? OPD

Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD

Relief.

The learned trial Court vide judgment and decree dated 13.10.2009 decreed the suit of the plaintiff. The appeal filed by the defendants against the judgment and decree dated 13.10.2009 of the learned trial Court, resulted in dismissal and this is how the defendants are before this Court by way of the present regular second appeal.

On 22.9.2011, this Court admitted the appeal on the following substantial questions of law:

"1. Whether the learned Courts below have rightly come to the conclusion that the Will is shrouded by suspicious circumstances, especially when the appellants have proved the Will Ext.DW-2/B as genuine Will and further the finding recorded by the learned trial Court to the effect that the Will is not registered and the witness from the locality is not associated is a suspicious circumstance can be sustained in the eyes of law?

Whether the Ld. Courts below are right in not construing the contents of Will Ext.DW-2/B which exclude the respondent to inherit the property of testator Shri Prema for the reason that her husband may dispose of the property?"

I have heard learned counsel for the parties and gone through the records of the case carefully.

Since both these substantial questions of law are intrinsically inter-linked and inter-connected, therefore, these are taken up together and are being disposed of by a common reasoning.

At the outset, it may be observed that the stand taken by the defendants in their written statement to the effect that the plaintiff was married in Village Nerash and was residing with her husband is contrary to what has been set-out in the Will wherein it has been categorically stated that the husband of the petitioner has deserted her and thereafter remarried and the plaintiff is now residing with her father.

The trial Court after taking into consideration the aforesaid evidence led by the defendants in support of the execution of the Will and by the plaintiff against the Will came to the conclusion that the propounder has failed to prove on record that the deceased Prema Ram had executed a legal and valid Will Ext.DW-2/B on 9.8.2000 in their favour as the same was found to be shrouded by the following suspicious circumstances:

(i) At the time of the execution of the Will, Prema Ram was not in a sound disposing state of mind.

(ii) The propounder has not explained as to why two thumb impressions were fixed at page No. 2 of the Will by Prema Ram when there is no such requirement.

(iii) Why the Will was got executed in the absence of the plaintiff on 9.8.2000 when the plaintiff had gone to Hospital Bilaspur for her medical treatment and constant deposition of the defendant''s witnesses as to the presence of Jamna Devi at the time of the execution of the Will does not appear to be bonafide and raises a doubt about the genuine of the Will?

(iv) What was the occasion for Prema Ram to disinherit only her daughter from his property knowing well that she was already divorced having no independent source and voluntarily looked after Prema Ram till his death by residing with him and was cordial and affectionate relations with Prema Ram.

(v) The evidence placed on record by the defendants further scrutinized as to why the scribe DW-2 Sh. M.M. Verma, Advocate has infact visited the house of Prema Ram and drafted the Will in his house on his instructions.

(vi) One of the beneficiary of the Will Sh. Krishanu Ram took active part in execution of the Will by playing as prominent role while getting the suit property to Prema Ram by way of Will. The another suspicious circumstances shrouding the Will not explained by the propounder claim the execution of the Will in their favour by Prema Ram on the ground that Prema Ram was looked after by Mansha Ram father of the defendant and after his death by Mansa Ram and the defendants even looked after after the plaintiff before marriage and because these facts Prema Ram executed Will in their favour. Whereas evidence on the record clearly reveals that plaintiff through out resided with Prema Ram till his death and Prema was properly looked by the plaintiff who was divorced by her husband and this suspicious circumstance has also not been explained by propounder by leading cogent and satisfactory evidence. Hence, court come to the conclusion that the deceased Prema Ram has not executed Will Ext.DW-2/A in favour of the defendants.

It is vehemently argued by Mr. J.L.Bhardwaj, learned counsel for the appellants that all the aforesaid circumstances can by no stretch of imagination be called as suspicious circumstances as the same must be real, germane and valid and not fantasy of the doubting mind and would rely upon the judgment of the Hon''ble Supreme Court in P.P.K. Gopalan Nambiar vs. P.P.K. Balakrishnan Nambiar and others 1995 Supp (2) SCC 664, more particularly of the observations as contained in para 5 of the judgment, which reads as under:

"5. Under these circumstances, the suspicion which excited the mind of the District Munsif is without any basis and he picked them from his hat without fact-foundation. The Subordinate Judge had rightly considered all the circumstances and upheld the will. The High court, without examining the evidence, by merely extracting legal position set out by various decisions of this Court has upset the finding of the fact recorded by the Subordinate Judge in one sentence. It is trite that it is the duty of the propounder of the will to prove the will and to remove all the suspected features. But there must be real, germane and valid suspicious features and not fantasy of the doubting mind."

As regards the deprivation of natural heir, he would argue that the whole idea behind execution of Will is to interfere with the normal line of succession and, therefore, it is obvious that natural heirs would be deprived in every case of a will and may be that in some cases they are fully debarred and in others only partially and would rely upon the following observations of the Hon''ble Supreme Court in Rabindra Nath Mukherjee and another vs. Panchanan Banerjee (dead) by LRs and others (1995) 4 SCC 459 wherein it was held as under:

"4. As to the first circumstance, we would observe that this should not raise any suspicion, because the whole idea behind execution of will is to interfere with the normal line of succession. So natural heirs would be debarred in every case of will; of course, it may be that in some cases they are fully debarred and in others only partially. As in the present case, the two executors are sons of a half-blood brother of Saroj Bala, whereas the objectors descendants of a full blood sister, the disinheritance of latter could not have been taken as a suspicious circumstance, when some of her descendants are even beneficiaries under the will.

As to the identification by a lawyer of Calcutta, it may be stated that this could have been regarded as a suspicious circumstance if a wrong person would have been identified as Saroj Bala. That, however, is not the case of the objection. So, there is no bane in this circumstance.

Insofar as the third circumstance is concerned, we may first observe that witnesses in such documents verify whether the same had been executed voluntarily by the concerned person knowing its contents. In case where a will is registered and the Sub-registrar certifies that the same had been read over to the executor who, on doing so, admitted the contents, the fact that the witnesses to the document are interested loses significance. The documents at hand were registered and it is on record that the Sub- registrar had explained the contents to the old lady. So, we do not find the third circumstance as suspicious on the facts of the present case.

As to "ubiquitous" Subodh, it may be said that somebody has to take necessary steps in such matters; but if he happens to be one close to the executor, some eye-brow is bound to arise. Even so, if there be other circumstances on record to show the voluntary character of the document, the eye-brows should get dropped down. And such circumstances were present in the case, which somehow missed the two courts below. These are:

(1) Making of two codicils by Saroj Bala, last of which was about three years after the execution of will. The need for these arose because the testatrix had made use some of the properties listed in the will. So, the testatrix knew what was the will for and why it needed change.

(2) The testatrix executed an FDR of Rs.15,000/- on 2.8.1967,which shows that she was not so immobile or senile as sought to be made out by the respondents. The fact that her signature in the FDR was shaky has no cutting edge, because nearing 90 at the relevant time, the signature could have well been shaky because of old age.

(3) Testatrix sold some property in February 1967 and received the sale price, which shows her consciousness as to how to deal with her properties.

If a total view is taken of the aforesaid circumstances, which has to be the approach, we are of the opinion that the courts below overplayed some circumstances which they regarded as suspicious and somehow missed some circumstances which bolstered the case of the propounders."

Learned counsel for the appellants would further argue that once the execution of the Will had been duly proved to be held, then the minor contradiction would not in any way disprove the same and would place strong reliance upon the judgment rendered by this Court in Baldev Singh and others vs. Om Prakash and others, 2012 (1) Him. L.R. 243 more particularly the observations made in para 16 of the judgment, which reads as under:

"16. Another submission made by the learned counsel for the appellants is that respondent-defendant Om Parkash while appearing as DW-1 denied his presence at the time of execution of the Will, but DW-3 Shyama Nand, the Scribe, categorically stated that he was present when the Will was scribed. This contradiction in no way disproves the execution of Will by the deceased testator, especially when its execution is proved to the hilt, by the Scribe and one of the attesting witnesses, as referred to hereinabove. Also, the Rule ''falsus in uno falsus in omnibus'' is not recognized by Indian jurisprudence."

Lastly, Mr. J.L.Bhardwaj, learned counsel for the appellants would vehemently argue that despite there being concurrent findings against the appellants with regard to the proof of the Will, this Court should still has ample power and jurisdiction to interfere with the said findings in case same are perverse.

On the other hand, Mr. Rajnish Maniktala, learned counsel for the respondent would strongly argue that the learned Courts below have committed no irregularity much less illegality in coming to the conclusion that the Will is shrouded by suspicious circumstances and have given clear, cogent and convincing reasons for arriving at such a conclusion and these findings being pure findings of fact ought not be disturbed, rather cannot be disturbed by this Court in exercise of power under Section 100 of CPC.

It is more than settled that when the Will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. An adversarial proceeding in such cases becomes a matter of court''s conscience and propounder of the will has to remove all suspicious circumstances to satisfy that the Will was duly executed by the testator wherefor cogent and convincing explanation of suspicious circumstances shrouding the making of Will must be offered. This was so held by the Hon''ble Supreme Court in Jaswant Kaur vs. Amrit Kaur (1977) 1 SCC 369, wherein some of the suspicious circumstances were enumerated as follows:

"23. Suspicious circumstances like the following may be found to be surrounded in the execution of the Will:

i. The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.

ii. The condition of the testator''s mind may be very feeble and debilitated at the relevant time.

iii. The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.

iv. The dispositions may not appear to be the result of the testator''s free will and mind.

v. The propounder takes a prominent part in the execution of the Will.

vi. The testator used to sign blank papers.

vii. The Will did not see the light of the day for long.

viii. Incorrect recitals of essential facts. "

Adverting to the facts, it would be necessary for this Court to first examine the oral evidence led by the parties. The plaintiff examined PW-1, Ravi Chand, Panchayat Secretary, who proved on record the copy of Pariwar Register Ext.PW-1/A, wherein it is proved that the plaintiff was residing with the deceased. PW-2, Piare Lal, Record Keeper, proved on record the PD register from Regional Hospital, Bilaspur dated 9.8.2000. PW-3 Jamna Devi, plaintiff by way of an affidavit Ext.PW-3/A, stated that her father had died on 16.9.2000 and she was the sole successor of his property as her mother had died during her childhood and she was served and maintained by her father. On attaining maturity and being divorced by her husband, she served her father till his death and, therefore, there was no occasion for him to disinherit her from his property, more particularly, when she has no source of her livelihood. It was further stated that her father became feeble minded 3-4 months before his death. On 9.8.2000 taking the advantage of her absence the defendants by practicing fraud manufactured the alleged Will as a result of fraud, mis-representation and undue influence with the active connivance of the witnesses.

PW-4, Rajinder Kumar stated by way of an affidavit Ext.PW-4/A that he was the owner of the adjoining land. On 9.8.2000, the plaintiff had gone to District Hospital, Bilaspur and no Will whatsoever had been executed by deceased Prema Ram on the said date. He further stated that the plaintiff had been residing with her father till his death and he was having love and affection for the plaintiff. PW-5, Ravi Chand in his affidavit Ext.PW-5/A stated that the name of plaintiff was recorded in the Pariwar Register of Prema Ram and, as such, the entry was contained at serial No. 37 at page 271 for the year 1980 to 1989 and similar entries were available in the register pertaining to the year 1990 till 2000.

On the other hand, DW-1 Krishanu Ram in his affidavit Ext.DW-1/A stated that he was the real nephew of the deceased. The family remained joint, however, the land was partitioned during the lifetime of the father of the defendants. Since Prema Ram did not have any son, therefore, he was looked after and maintained by the defendants because Jamna Devi was already married to Sada Ram. However, Sada Ram had contracted a second marriage and had tried to compel the plaintiff for a divorce, which proceedings were dismissed on 28.4.1973. However, despite this, Sada Ram enticed Jamna Devi to live with him at village Nerash. Prema Ram was aware that in case he fails to execute the Will of his property, it would go to Jamna Devi, who in turn, would hand over the same to Sada Ram, which compelled him to execute the disputed Will. He also stated that in accordance with Hindu mythological and religious sentiments with regard to Kirya-Karam and Pind-Daan etc. the same could only be performed by his son or some male lineal descendants. Sh. Prema Ram had executed the Will in accordance with his desire and out of his free will and volition and for the said purpose, he on 9.8.2000 had requested the defendants to bring an Advocate to his house for execution of the Will. This Will is alleged to have been written by Sh. M.M. Verma, Advocate, on the dictation of Prema Ram in the presence of the witnesses which was marked with the thumb impression of Prema Ram and was signed by the witnesses.

DW-2, Sh. M.M. Verma, Advocate, in his affidavit Ext.DW-2/A stated that he was requested by Laxman Dass Lambardar, Halqua Behna Jattan to go to the house of Prema Ram as he intends to execute a Will. Accordingly, he on 9.8.2000 went to Village Auhar and met Laxman Dass. Thereafter, they went to Bhanjwani to the house of Prema Ram where the Will was scribed by him. The Will was read over and explained in vernacular to Prema Ram, who after understanding the contents thereof put his thumb impression in presence of the witnesses. Thereafter the Will was signed by witnesses Ram Lal, Shanti and Laxman Dass. DW-3 Ram Lal is one of the attesting witnesses, who stated that the Will was written in his presence, which was read over and explained to Prema Ram. Prema Ram put his thumb impression on every page of the Will in presence of the witnesses, who also signed the Will. DW-4 Shanti in his affidavit Ex.DW-4/A has also deposed on the same lines as DW-3. DW-5 Munshi Ram is the brother of Laxman, Lambardar, who had expired in the year 2005 and had identified the signatures of his brother in circle (g) on the Will Ext.DW2-/B.

The plaintiff led rebuttal evidence and examined PWR-1, Vinod Sharma, Head Ward, Open Air Jail, who produced document Ex. PR, which reveals that Subhash Chand son of Sh. Mansha Ram was convicted under Section 304 IPC for a period of eight years by learned Sessions Judge, Bilaspur on 22.9.1998. On 9.8.2000 Subhash Chand was lodged in M.C. Jail, Nahan. In addition to the aforesaid witness, plaintiff also examined PWR-2 Ameer Singh Thakur, Manager, UCO Bank, Gehrwin, who stated that the bank had no branch in Village Auhar and also produced certificate to this effect Ext.PR2/A.

Now, in light of the evidence led by the parties, the question that falls for consideration is as to whether Prema Ram in fact had executed a Will as alleged. Undoubtedly, it is settled proposition of law that one of the purpose of the Will is to deviate from the normal line of succession otherwise there is no purpose or need to execute the Will. Meaning thereby simply because some of the heirs have been disinherited in the Will would not be a suspicious circumstance. However, in the peculiar facts and circumstances of the instant case at least some clear, cogent and convincing explanation was required to be offered by the defendants as to why the testator would disinherit his only daughter and prefer to bequeath the property in their favour. This assumes importance in the backdrop of the following undisputed facts:

(i) Admittedly the plaintiff was the only daughter and sole legal heir of testator;

(ii) admittedly, the husband of the plaintiff had divorced the plaintiff in the year 1973 and had remarried and was residing with his second wife. There was no evidence that the husband of the plaintiff had either patched up with the plaintiff or had started residing with her; and

(iii) the testator till his death, was being looked after by the plaintiff and therefore, had lot of love and affection for her.

Apart from the above, it has specifically come in the evidence led by the defendants that the plaintiff had been staying with her father in his house in 1973 and looking after him.DW-1 had admitted that the plaintiff was having cordial relations with her father. What is most interesting is the deposition of the so called scribe Sh. M.M. Verma, Advocate, who deposed that he had scribed the Will on the instructions of Prema Ram at his residence. He had categorically stated that he met Subhash Chand defendant outside the house of Prema, whereas, it is proved on record in the testimony of PWR-1 Vinod Sharma, an official of Open Air Jail, Bilaspur, that Subhash Chand was a convict and on 9.8.2000 was lodged in M.C. Jail, Nahan. If that was so, how DW-2 M.M. Verma, met Subhash Chand as alleged only speaks volumes against him.

Now, coming to the veracity of the testimony of the marginal witnesses, it would be noticed that these witnesses had categorically deposed that the plaintiff was also present at the time of execution of the Will, whereas it has been duly proved on record that on the said date i.e. on 9.8.2000 when the Will as alleged to have been executed, the plaintiff had gone to Bilaspur Hospital and was not present in her house. Reference in this regard can conveniently be made to the testimony of PW-2 Piare Lal, who brought the record of the hospital and deposed that on 9.8.2000 the plaintiff was examined in the OPD at serial No. 66350.

The evidence led by the defendants in support of the Will does not satisfy the conscious of the Court that the said Will was an outcome of free volition of the executant, who had signed the same voluntarily after knowing and understanding the contents of the Will.

Coming by the testimony of the witnesses as examined by the defendants, the learned Courts below have committed no irregularity much less illegality by concluding that the Will was definitely surrounded by suspicious circumstances as the same was neither registered nor the witnesses examined in support thereof could be trustworthy, no reliance could be placed on the testimony of the so called scribe and the witnesses, who otherwise were only chance witnesses.

In addition to the aforesaid, the defendants/appellants have failed to lead any evidence to show that the plaintiff was residing with her husband or her husband was residing with her so as to arouse a legitimate suspicion in the mind of the testator that in the event if he executed a Will in favour of the plaintiff, her husband was likely to dispose of the property. The testator himself has clearly acknowledged in the Will that his daughter had been deserted by Sada Ram (husband), who had remarried and was residing with his second wife, whereas the plaintiff was residing with him. In such circumstances, it would not only be irrational, but would be illogical for any sane person to exclude his daughter only for the reasons that at any later stage the estranged husband of his daughter may dispose of the property.

Thus, on the basis of the aforesaid discussion, this Court has no hesitation to come to the conclusion that the Will Ext.DW-2/B is shrouded by suspicious circumstances and the appellants have miserably been unsuccessful in dispelling such suspicious circumstances. Having said so, both the substantial questions of law are answered accordingly.

In view of the aforesaid discussion, I find no merit in this appeal and the same is accordingly dismissed with special costs of Rs.30,000/- as the appellants have unnecessarily dragged a helpless and hapless lady to unwarranted and otherwise avoidable litigation. Decree sheet be drawn accordingly.