When adverse inference will be drawn against plaintiff as he has failed to produce original Will?

I do not find any substance in the contentions raised by the learned counsel for the appellant-defendant no.3. Defendant no. 3 has based his claim on the basis of the Will dated 06.10.1998(Ex.DW6/A/DW7/1). This is an admitted fact that the original Will was not produced in the Court. So, the original Will has not seen the day of the light. Only, the certified copy thereof has been produced in evidence by defendant no.3. No explanation has been given by the appellant as to why the original Will was not produced in evidence. It is also an admitted fact that no permission was taken by defendant no.3 to lead the secondary evidence to produce the certified copy of the Will dated 06.10.1998. Thus, the non production of the original Will raises the adverse inference against defendant no.3-appellant.

Punjab-Haryana High Court

Jai Singh vs Pavitra Devi & Ors on 7 January, 2016

CM No. 75-C of 2016 in/and R.S.A No. 31 of 2016 (O&M)       
CORAM : HON'BLE MR. JUSTICE DARSHAN SINGH

Citation;AIR 2016(NOC) 276 P&H

2. For the sake of convenience, the status of the parties is being mentioned as in the original suit.

3. Plaintiff Smt. Pavitra Devi (respondent no.1) has filed the suit for declaration to the effect that she is owner in possession of the suit land to the extent of 1/ 5th share. The Wills and decrees allegedly executed/suffered by deceased Sardar Singh, her father, in respect of his movable and immovable properties situated in village Shahdat Nagar Jhal and Bhankli and shops situated in Rewari have been got executed fraudulently by defendant no.3 (present appellant). The said will dated 06.10.1998 is illegal against law, null and void and is liable to be set aside. It was further pleaded that defendants no.2 and 3 have further fraudulently got executed another Will dated 15.11.1994 with respect to property no. 3327A/204 situated near Truck Union, Rewari, three shops and one plot situated near Railway Station Kosli in favour of defendant no.13. Defendant no.1 also succeeded in getting the civil court decrees suffered from Sardar Singh in favour of his son Inderjeet Singh (defendant no.14) with respect to the land situated at village Sahadatnagar and Jhal and it was further pleaded that no such Wills were ever executed by deceased Sardar Singh, who died on 30.09.1999 with  his free will. Plaintiff Pavitra Devi further pleaded that she was owner in possession of the suit property to the extent of 1 /5th share therein on the basis of the Will dated 15.03.1999 executed by her father Sardar Singh in her favour.

4. Defendants no. 1, 10, 11 and 14 filed the written statements admitting the claim of the plaintiff.

5. Defendants no. 2 and 13 contested the suit on the ground inter alia that deceased Sardar Singh has executed the registered Will dated 15.11.1994 in favour of defendants no. 2, 3 and 13. They disputed that deceased Sardar Singh has executed any Will dated 15.03.1999 in favour of the plaintiff. They further pleaded that no Will dated 06.10.1998 was executed by Sardar Singh in favour of defendant no.3. They further pleaded that decree suffered by Sardar Singh during his lifetime was also legal and valid in all respects.

6. Defendant no. 3-appellant had filed the separate written statement. He denied that any Will dated 15.03.1999 was executed by deceased Sardar Singh in favour of the plaintiff. Rather, he has executed the registered Will dated 06.10.1999 voluntarily out of his free will in his sound disposing mind in his favour. The mutation on the basis of the said Will has been rightly sanctioned in his favour. With these pleas, he pleaded for dismissal of the suit.

7. From the pleadings of the parties, the following issues were framed on 12.03.2005:-

"1. Whether plaintiff is owner in possession of 1/ 5 th share in the suit land and the Will as well as civil court decree as regards suit land are illegal, null and void and not binding upon the rights of  the plaintiff as prayed for?OPP

2. Whether plaintiff is entitled to the relief of permanent injunction restraining the defendants from alienating the suit land?OPD

3. Whether plaintiff is entitled to rendition of account of produce of the suit land with effect from 30.09.1999 till date and is entitled to recovery of mean profits thereof as claimed?OPP

4. Whether suit of the plaintiff is within limitation?OPP

5. Whether suit is not maintainable in the present form?OPD

6. Whether plaintiff has no locus standi to file the present suit?

OPD

7. Whether plaintiff is estopped by hiw own act and conduct?OPD

8. Whether deceased Sardar Singh had executed a legal and valid Will dated 15.11.1994 in favour of defendants no. 2, 3 and 13? OPD

9. Relief.

The following additional issue no. 8A was also rdered to be framed vide order dated 10.01.2011.

8.A Whether Sardar Singh has executed a legal and vlaid Will in favour of Jai Singh on 06.10.1998?OPD.

8. On the basis of the evidence adduced by the parties, the learned trial Court partly decreed the suit in favour of the plaintiff. She was held to be owner in possession of 1/ 5th share of the suit properties left by deceased Sardar Singh on the basis of Will dated 15.03.1999. The Wills dated 15.11.1994 and 06.10.1998 were declared illegal and invalid. The plaintiff was also granted the consequential relief of injunction.

9. Aggrieved with the aforesaid judgment, defendants no. 2 and 13 and defendant no. 3 Jai Singh preferred two separate appeals. The learned First Appellate Court discarded all the three Wills. The appeals were partly allowed holding that "the estate left by Sardar Singh would devolve according to natural succession as per the provisions of the Hindu Succession Act, 1956."

10. Aggrieved with the aforesaid judgment and decree dated 02.09.2015 passed by the learned First Appellate Court, the present appeal has been preferred.

11. I have heard Mr. Jai Vir Yadav, Advocate, learned counsel for the appellant and have meticulously gone through the paper book.

12. Learned counsel for the appellant-defendant no.3 contended that deceased Sardar Singh had validly executed the Will dated 06.10.1998 in favour of defendant no.3. The execution of the said Will was duly proved from the statements of DW-7 Kishan Chand Yadav, the scribe, DW-8 Rajesh, the attesting witness and DW-9 Sube Singh, the brother of Jagdish, another attesting witness of the Will. He further contended that the certified copy of the Will Ex.DW6/A/Ex.DW7/1 was produced in evidence, which was duly proved. The Will in question was not surrounded by any suspicious circumstance. There was no material on record to show that the said Will was an outcome of any undue influence exercised by defendant no. 3, the beneficiary. Thus, he contended that the learned Appellate Court has erred in discarding the Will dated 06.10.1998.

13. I have duly considered the aforesaid contentions.

14. I do not find any substance in the contentions raised by the learned counsel for the appellant-defendant no.3. Defendant no. 3 has based his claim on the basis of the Will dated 06.10.1998(Ex.DW6/A/DW7/1). This is an admitted fact that the original Will was not produced in the Court. So, the original Will has not seen the day of the light. Only, the certified copy thereof has been produced in evidence by defendant no.3. No explanation has been given by the appellant as to why the original Will was not produced in evidence. It is also an admitted fact that no permission was taken by defendant no.3 to lead the secondary evidence to produce the certified copy of the Will dated 06.10.1998. Thus, the non production of the original Will raises the adverse inference against defendant no.3-appellant.

15. The learned First Appellate Court has categorically mentioned that DW-7 Kishan Chand Yadav, the scribe cannot be considered to be the attesting witness and legally no fault can be found with these observations of the learned First Appellate Court. DW-8 Rajesh, the attesting witness of the Will has been a tenant of the beneficiary for the last more than 25 years. His presence at the time of execution of the Will is seriously suspected as he could not tell as to whether the Will was written by the deed writer in his own hand writing or was got typed by him. DW-9 Sube Singh is also not the attesting witness of the Will. He has examined simply to identify the signatures of his brother Jagdish, another witness of the Will.

16. The learned First Appellate Court has also narrated the suspicious circumstances surrounding the Will dated 06.10.1998 that no reason has been given by the testator as to why the other natural legal heirs were excluded from inheritance. It was also found from the evidence on record that Sardar Singh was not on good speaking terms with defendant no.3. He has misused the power of attorney earlier executed by deceased Sardar Singh in favour of defendant no.3 and executed the lease deed of the land owned by Sardar Singh in favour of his wife. Due to which Sardar Singh has got canceled his power of attorney. In these circumstances, it was not plausible that Sardar Singh  would have executed the Will in favour of defendant no. 3 Jai Singh- appellant. Mere, this fact that said Will is registered, is no ground to establish the valid execution of the Will. Thus, I do not find any infirmity in the findings recorded by the learned First Appellate Court.

17. Resultantly, no question of law, much less, the substantial question of law as claimed by the appellant arises in the present appeal.

18. Consequently, the present appeal having no merits is hereby dismissed in limine with no orders as to costs.