CASE NO.: Appeal (civil) 5032 of 2002 PETITIONER: Daulat Ram & Ors. RESPONDENT: Sodha & Ors. DATE OF JUDGMENT: 16/11/2004 BENCH: ASHOK BHAN & S.H. KAPADIA JUDGMENT:
J U D G M E N T
BHAN, J.
This appeal, by grant of special leave, is directed against the
judgment and order dated 26.9.2001 of a Single Judge of the High
Court of Himachal Pradesh in Second Appeal No. 212 of 1995. The
High Court by the impugned judgment has confirmed the judgment
and decree passed by the first Appellate Court and decreed the suit
filed by the Respondent No. 1.
Facts giving rise to this appeal, in short, are:
One Prati, son of Kamna, executed a Will on 11.01.1977 in favour
of his nephews, appellants herein, bequeathing his entire property in
their favour. In the Will no provision was made by Prati either for his
wife Gulabo or for his daughter Sodha Respondent No. 1 herein
from his another wife Radhi. This Will was duly executed, attested
and registered. Thereafter, on 08.05.1983 Prati executed another Will
wherein he revoked/cancelled his earlier Will dated 11.01.1977 and
bequeathed his property to his daughter, Respondent No. 1. This Will
was duly executed and attested but was not registered.
Prati died on 10.05.1983. After his death Respondent No. 1 filed
Suit No. 102 of 1983 on 14.07.1983 for injunction restraining the
appellants from interfering with her possession over the property of
her deceased father claiming herself to be the owner in possession of
the said property or in the alternative for possession thereof by virtue
of Will executed in her favour dated 08.05.1983.
Appellants contested the suit denying that the Respondent No. 1
was the daughter of Prati. That the alleged Will propounded by the
Respondent No. 1 was prepared in collusion with the scribe and the
attesting witnesses. According to them Prati had died issueless. They
propounded the Will dated 11.1.1977 executed by Prati wherein the
entire property was bequeathed by him in their favour and claimed
themselves to be the legal heirs and only successors to the estate of
deceased Prati.
Trial Court dismissed the suit filed by the Respondent No. 1. It
was held that she was not the daughter of Prati. That Prati did not
execute any Will in favour of Respondent No. 1. It was further
observed that the Will dated 11.01.1977 in favour of appellants was
valid and by virtue of the same appellants were entitled to the estate
left by Prati. Being aggrieved, Respondent No. 1 preferred civil
appeal. First Appellate Court after reappraising the entire evidence set
aside the judgment and decree passed by the Trial Court. The suit filed
by the Respondent No. 1 was decreed by observing that Respondent
No. 1 was the daughter of deceased Prati and a valid Will had been
executed in her favour by Prati. It was held that she had become the
owner and therefore entitled to the possession of the same. It was
observed after close scrutiny of both the Wills that the Will dated
11.01.1977 was procured by the appellants under pressure from Prati
which was subsequently revoked by him by executing the second Will
dated 08.05.1983.
Appellants preferred a regular second appeal against the
judgment and decree passed by the first appellate Court which was
dismissed being without any merits. The judgment and decree passed
by the first Appellate Court was confirmed. It was observed that the
first appellate Court had rightly concluded that Respondent No. 1 was
the daughter of deceased Prati from his wife Radhi and the Will dated
08.05.1983 was validly executed by him while in sound disposing
mind in the presence of the attesting witnesses and the scribe.
Being aggrieved the appellants have preferred this appeal.
The only point raised before us is that the second Will dated
08.05.1983 executed by Prati was surrounded by suspicious
circumstances and the same was forged.
Though appellants in their written statement had averred that
the Will dated 08.05.1983 was forged but no issue was framed on this
point. No evidence was led by the appellants to prove the forgery.
Will being a document has to be proved by primary evidence
except where the Court permits a document to be proved by leading
secondary evidence. Since it is required to be attested, as provided in
Section 68 of the Indian Evidence Act, 1872, it cannot be used as
evidence until one of the attesting witnesses at least has been called for
the purpose of proving its execution, if there be an attesting witness
alive, and subject to the process of the Court and capable of giving
evidence. In addition, it has to satisfy the requirements of Section 63
of the Indian Succession Act, 1925. In order to assess as to whether the
Will has been validly executed and is a genuine document, the
propounder has to show that the Will was signed by the testator and
that he had put his signatures to the testament of his own free will;
that he was at the relevant time in a sound disposing state of mind and
understood the nature and effect of the dispositions and that the
testator had signed it in the presence of two witnesses who attested it
in his presence and in the presence of each other. Once these elements
are established, the onus which rests on the propounder is discharged.
But where there are suspicious circumstances, the onus is on the
propounder to remove the suspicion by leading appropriate evidence.
The burden to prove that the will was forged or that it was obtained
under undue influence or coercion or by playing a fraud is on the
person who alleges it to be so.
Respondent No. 1 has successfully discharged the onus of
proving the due execution of the Will. The two attesting witnesses,
PW-3 and PW-5, have clearly stated in their depositions that Prati was
in sound disposing mind at the time of the execution of the Will and
had put his thumb mark on the said Will after the same was read over
to him in their presence and that they had signed the Will in the
presence of the testator and in the presence of each other. They have
deposed that Respondent No. 1 was the daughter of Prati and Prati of
his own volition had executed the Will in favour of Respondent No. 1.
PW-5 is a former Member of Legislative Assembly. PW-3 is a close
relation of deceased Prati. There is nothing on record to indicate that
they have deposed falsely. Rather their testimonies inspire confidence.
PW-2 is the scriber of the Will and neighbour of deceased Prati. He
has also deposed that Respondent No. 1 is the daughter of Prati and
that he had scribed the Will at the instance of Prati. He has also
deposed that Prati had executed the will of his own while in sound
disposing state of mind. The Will propounded by the appellants has
been specifically revoked/cancelled by the Prati in his later Will
stating therein that the earlier Will was got written from him forcibly
by the appellants. Assertion in the second Will by the testator about
the earlier Will having been forcibly got executed from him by the
appellants is corroborated by the fact that in the earlier Will it was
shown that the testator had no child or heir except the appellants and
the fact of presence of Respondent No. 1, daughter of testator, was
suppressed. From the reading of the first Will it is clear that
appellants were aware that Prati had a daughter who could at any
time lay her claim to the property of her father.
The only suspicious circumstance surrounding the Will pointed
out is that Prati had thumb-marked the second Will, whereas the
earlier Will had been signed by him. According to the appellants this
shows that Prati was physically incapable of executing the Will.
According to them, Prati was unconscious for 2 3 days prior to his
death which took place a day next to the execution of the Will.
Counsel for the appellants referred to the statement of DW-6,
Devi Ram a purohit, who has stated that he had gone to the house of
Prati a day or two earlier for pundhan which was done by one of the
appellants as Prati was not in a position to do so being unconscious.
We do not find much substance in this submission as it has come on
record that though Prati was illiterate he had learnt to put his
signatures, but most of the time he used to put his thumb impression.
He was 84-85 years of age. In the face of unequivocal and trustworthy
statements of scribe PW-2 and the attesting witnesses PW-3 and PW-5,
much reliance cannot be placed on the testimony of DW-6. No other
witness has been examined to show that Prati was unconscious at the
time of the execution of the Will.
The burden to prove that the Will dated 8.5.1993 executed by
Prati in favour of his daughter was forged or was obtained by undue
influence or by playing a fraud was on the appellants which they have
failed to discharge. No evidence was led by them on either of these
points.
Be that as it may, the second Will executed by Prati has been
proved to be genuine and validly executed by him wherein he has
bequeathed his entire property to his daughter, Respondent No. 1.
The earlier Will executed in favour of the appellants has been
specifically revoked. Since the earlier Will stands revoked it cannot be
given effect to.
We agree with the findings recorded by the High Court that
Respondent No. 1 is the daughter of Prati and Prati had executed a
valid will in her favour.
There is no merit in this appeal and the same is dismissed with
no order as to costs.