plaintiff Krishan Chand himself that the plaintiffs were
present at the time of execution of the Will. The defendants,
however, failed to prove their active participation and role
they played in getting the same executed. It is not their
case that the plaintiffs have managed the execution of the
Will by playing fraud and misrepresentation or by exercising
any other influence.
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
RSA No.136 of 2001
Date of Decision: 1.4.2014
Kishori Lal (deceased through LRs) and others
..Appellants
Versus
..Respondents
Hem Raj and others
Coram:
The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge.
Aggrieved by the judgment and decree dated
28.12.2000, passed by learned Additional District Judge-II,
Kangra at Dharamshala, in Civil Appeal No.19-N/97, the
appellants, hereinafter referred to as the defendants, have
preferred this appeal for quashing the same being perverse
and legally unsustainable.
2.
The challenge to the impugned judgment and
decree is on the grounds, inter alia, that the suit land being
ancestral,
the
testator
Chandu,
could
have
not
bequeathed the same and that Will Ext. P1, being not
stated
to
be
shrouded
The Will, otherwise also, is
by
treated a genuine document.
proved to be executed legally and validly cannot be
numerous
suspicious
valid document.
circumstances, hence could have not been held to be a
Both the Courts below allegedly acted
upon the same mechanically and without application of
mind. The Will could have not been acted upon in view of
the propounder having taken active part in getting the
same execut ed and there being no explanation qua the
exclusion of the natural heirs therein.
The plaintiffs,
beneficiaries under the Will, being Jhewer by caste, could
have not
served the testator who was Brahman and this
fact is stated to be completely ignored by both the Courts
below.
Otherwise also, there is no cogent and reliable
evidence produced by the plaintiffs, showing that the
testator Chandu was residing with them and the case to this
effect has been concocted. The Will having not been
produced immediately after the death of the testator
before the revenue officer to give effect thereto in revenue
record itself shows that the same was never executed and
rather a forged document . The issue with respect to the
valuation of the suit property for the purpose of jurisdiction
raised on behalf of the defendants has not been decided
3.
by both the Courts below.
Appeal has been admitted on the following
substantial questions of law:
When the evidence of the marginal witnesses
1)
of the alleged Will is not in consonance with
the provisions of Section 63 of the Indian
Succession Act and Section 68 of the Indian
Evidence Act, are not the findings of both the
Courts below vitiated for want of proof of the
Will as required under law?
When the Will was not produced before the
2)
Revenue Officer within a reasonable period
after the death of the testator, was not
suspicious
genuineness
circumstance,
and
validity
affecting
of
the
the
Will,
particularly when the propounder of the Will
did not object for the attestation of the
mutation of inheritance?
3)
Whether both the Courts below have ignored
from consideration the fact that as per the
custom prevailing in Kangra, the plaintiff-
respondents who are ghewer by caste could
not have been accepted to render services
to Shri Chandu Lal, the executant of the Will,
who was Brahman, was not the claim put
forth by the plaintiff-respondents suspicious,
doubtful and unreasonable affecting the
validity of the Will?
4.
Shri Bhupender Gupta, learned Senior Advocate,
while taking this Court to the evidence available on record,
has pointed out that Will Ext. P1 is not at all proved in
accordance with law, hence does not confer any right, title
or interest upon the plaintiffs so far as the suit land is
concerned. It has also been pointed out that the evidence
consisting of oral as well as documentary, has not been
appreciated in its right perspective and rather misread and
as a result thereof, the findings recorded by both the Courts
below are vitiated and the impugned judgment and
decree
being
perverse
is
not
legally
and
factually
sustainable.
5.
On the other hand, learned counsel representing
the respondents-plaintiffs while submitting that both the
Courts below have held the Will to be a genuine and valid
document on appreciation of the evidence in it s right
perspective, has supported the judgment and decree
impugned in this appeal.
6.
It is well settled that the findings recorded by the
Courts below on appreciation of the evidence should not
normally be interfered with by the High Court in second
appeal, in case found to be not perverse and legally
unsustainable.
Learned Senior Advocate has mainly
emphasized the point of genuineness and authenticity of
the Will to which all the substantial questions of law
formulated in this appeal pertain.
7.
This Court could not lay hands on any cogent
and reliable evidence, suggesting that the suit land is
ancestral, as no legal and acceptable evidence qua this
aspect of the matter has been produced by the defendants
in the trial Court. Therefore, the findings that the suit land is
not ancestral, returned by both the Courts below, are not
8.
only legally but factually also sustainable.
Admittedly,
testator
Chandu
died
intestate.
Sudershna, mother of the plaintiffs, a motherless child, was
brought up by deceased Chandu. This fact is proved from
own testimony of plaintiff Krishan Chand, who has stepped
into the witness box as PW-1.
PW-2 Brij Lal has also
supported this aspect of the matter while in the witness box.
The testator, no doubt was Brahman by caste, whereas the
plaintiffs Jhewer, howev er, a Brahman cannot live with
Jhewer, as per the customs, as now pleaded in this appeal,
is not at all proved nor any pleading to this effect finds
mention in the written statement. On the other hand, it is
again well settled that the existence of custom is not only
required to be pleaded but proved also in accordance with
law. Therefore, in view of the evidence, as has come on
record by way of own testimony of plaintiff Krishan Chand
and that of PW-2 Brij Lal, it would not be improper to
conclude that the testator was being looked after and
maintained by the plaintiffs during his life time, as the
anything from the cross-
defendants could not elicit
examination of plaintiff’s witnesses, lending support to their
case.
9.
Now, if coming to the question of genuineness
and authenticity of Will Ext.P1, the same as per the evidence
available on record, was scribed by Chander Prakash,
Petition Writer and witnessed by PW2 Brij Lal. Since Chander
Prakash, the scribe, had already expired, therefore, the
plaintiff had examined PW-3 Rajesh Kumar, Petition Writer.
As per his version, being associate of deceased Chander
Prakash, he can reasonably be believed to be well
conversant with his handwriting, as he has stated while in
the witness box.
A perusal of his testimony, in his cross-
examination, reveals that the defendants failed to elicit
anything therefrom to lend support to their case. Out of the
two attesting witnesses, one witness namely PW2 Brij Lal has
been examined and his testimony rev eals that the Will was
reduced into writing by Chander Prakash, Petition Writer at
the instance of Chandu Lal, who had signed the same after
its contents were read over and explained to him by the
was
produced
before
the
Tehsildar
thereafter
scribe. He also admits his signatures on the Will. The Will
for
registration. There also, the contents thereof were read over
thereafter on the same.
10.
and explained to them and they put their signatures
The execution of the will by the testator in favour
of the respondents-plaintiffs has, therefore, been proved in
accordance with the provisions contained under Section 63
of the Indian Succession Act and Section 68 of the Evidence
11.
Act.
The Will has been executed on 26.2.1981 and
Chandu Lal, as per the evidence available on record, died
after 3 - 31⁄2 years of the execution thereof. Therefore, it can
reasonably be believed that the testator was in sound
disposing state of mind at the time of execution of the Will, in
question. True it is that after the death of the testator, the
plaintiffs failed to produce the Will before the Revenue
Officer, however, their failure to do so cannot be taken a
suspicious circumstance, as they may not be aware about
the procedure to be followed or may have otherwise
considered themselves to be the owners of the property in
dispute.
12.
On the other hand, mutation of the estate of
deceased Chandu Lal, no doubt, attested on 14.2.1985 in
the name of defendant Gian Chand, however, cannot be
said to be legal and valid for the reason that the same has
been attested and sanctioned behind the back of the
plaintiffs and also fraudulently in view of the recital that
deceased Chandu Lal died intestate without executing any
Will. Plaintiffs having come to know at a later stage about
the attestation of mut ation when the defendants started
proclaiming themselves to be the owners of the suit land,
have rightly approached the trial Court for declaration that
it is they who are owners in possession of the suit land
pursuant to Will dated 26.2.1981 Ext. P1 and mutation No.164
being wrong has no effect on their rights in the suit land.
13.
The other circumstance that the testator being
Brahman by caste could have not lived with the plaintiffs
who are Ghewer by caste, is already discussed in this
judgment supra and rejected.
14.
Of course, it has come in the statement of
plaintiff Krishan Chand himself that the plaintiffs were
present at the time of execution of the Will. The defendants,
however, failed to prove their active participation and role
they played in getting the same executed. It is not their
case that the plaintiffs have managed the execution of the
Will by playing fraud and misrepresentation or by exercising
any other influence. The testator having died after 3 – 31⁄2
years of the execution of Will Ext. P1, cannot be said to be of
Therefore, qua this aspect of the matter,
he was doing.
unsound mind or not in a position to understand as to what
both the Courts below have not committed any illegality
while discarding this part of the defendants’ case.
15.
The sale of suit land bearing Khasra No.817 to
Mohinder Kumar vide sale deed Ext.D1 by testator Chandu
Lal on 28.1.1981 seems to be not in the notice and
knowledge of the plaintiffs-respondents and it is for this
Howev er, the
reason they filed suit qua this land also.
genuineness of Will Ext. P1 cannot be doubted on this score,
because the testator may have not disclosed the sale of the
land in question to Mohinder Kumar.
16.
So far as the question of valuation of the suit is
concerned, no doubt, an objection to this effect was taken
in the written statement, however, no issue either pressed or
claimed.
Therefore, no such issue can be allowed to be
raised for the first time in the present appeal.
17.
Therefore, having gone through the evidence on
record, I am of the opinion that both the Courts below have
not committed any illegality or irregularity nor the findings
recorded
can
be
said
to
be
perverse
or
legally
unsustainable. Hence, there is no question of law much less
a substantial question of law, which needs adjudication in
In view of what has been stated hereinabove,
18.
this appeal and the same rather deserves to be dismissed.
April 1, 2014
(Dharam Chand Chaudhary),
There is no order as to costs.
this appeal fails and the same is accordingly dismissed.
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