Legally Bharat

Himachal Pradesh High Court

Chaitru & Another vs Kali Dass & Others on 20 September, 2024

Author: Virender Singh

Bench: Virender Singh

1
( 2024:HHC:8884 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

RSA No.70 of 1995
Reserved on : 30th August, 2024
Decided on : 20th September, 2024

.

Chaitru & Another …..Appellants

Versus

Kali Dass & Others …..Respondents

Coram

The Hon’ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1 Yes.

For the appellants : Mr. K.D. Sood, Senior
Advocate with Mr. Vivek

Thakur, Advocate.

For the respondents : Mr. Sunil Mohan Goel,
Advocate.

Virender Singh, Judge.

Appellants have preferred the present Regular

Second Appeal, under Section 100 of the Code of Civil

Procedure (hereinafter referred to as ‘the CPC’), against the

judgment and decree dated 09.11.1994, passed by the

Court of learned Additional District Judge, Kullu, District

Kullu, H.P. (hereinafter referred to as the ‘First Appellate

Court’), in Civil Appeal No.71 of 1991, titled as Chaitru &

Another Versus Kali Dass & Another.

1

Whether the reporters of Local Papers may be allowed to see the judgment? Yes.

::: Downloaded on – 20/09/2024 20:39:34 :::CIS

2 ( 2024:HHC:8884 )

2. Vide judgment and decree dated 09.11.1994, the

learned First Appellate Court has dismissed the appeal

preferred by the appellants, against the judgment and

.

decree dated 15.11.1991, passed by the Court of learned

Senior Sub Judge, Kullu, District Kullu, H.P. (hereinafter

referred to as the ‘trial Court’), in Civil Suit No.58 of 1988,

titled as Cheitru & Another versus Kali Dass & Others.

3. Vide judgment and decree dated 15.11.1991, the

learned trial Court has dismissed the suit filed by the

plaintiffs against the defendants.

4. For the sake of convenience, the parties to the

present lis are hereinafter referred to, in the same manner,

as were, referred to, by the learned trial Court.

5. Brief facts, leading to the filing of the present

appeal, before this Court, may be summed up, as under:-

5.1. Plaintiffs have filed the suit for declaration to the

effect that the plaintiffs, being the agnate of deceased Sh.

Lebhu, are owners-in-possession of 2/3rd share in the

property left by the deceased and entitled to remain in

possession of the same, with consequential relief of

injunction, restraining the defendants from causing any sort

of unlawful interference and from dispossessing them from

the land detailed below:-

::: Downloaded on – 20/09/2024 20:39:34 :::CIS

3 ( 2024:HHC:8884 )

i) Land measuring 3-5 bighas, being 1/2 share
of 1and measuring 6-10 bighas, comprised
under khata khatauni No.77/132 and 133,
khasra Nos.514 and 577, incorporated in the
jamabandi for the year 1982-83 of Phati Shirar,
Kothi Raison, Tehsil and Distt. Kullu.

.

b) Land measuring 0-18 biswas, comprised
under khasra No.2900, khata khatauni
No.101/252, incorporated in the Jamabandi for

the year 1981-82 of Phati and Kothi
Mandalgarh, Tehsil and District Kullu.

c) land measuring 5-13-8 bighas out of the
land measuring 14-18-15 bighas comprised

under khata khatauni No.100/248 to 251,
khasra Nos. 2661, 2663, 2780, 2854, 2876,
2962, 2964, 2984, 2986, 3004, 3020, 3038,
3059, 3064, 3092, 3120, 3172, 3178, 3315,
3327, 2781, 2853, 2884, 2961, 2981, 3005,

3119, 3081, 3152, 3164, 3169, 3177, 3316,

2662, 3328, kittas 35, incorporated in the
jamabandi for the year 1981-82 of Phati and
Kothi Mandalgarh, Tehsil and Distt. Kullu.

d) 1/2 share of 2½ storeyed house shown in

the site plan by letters AGHJK alongwith
Verandah, standing on Abadi of Phati Abadi,
village Karal, Phati and Kothi Mandalgarh,
Tehsil and Distt.Kullu, bounded as follows:-

North – A to G measuring 33 feet, by Abadi and

House of Nathu and Kalu etc.
West:-J to K measuring 28 feet by the Shahal
(shed) of Ehanti etc.

East:- GH to J measuring 38 feet by the Abadi
of Smt. Bhanti,
South: A to K measuring 38 feat by the House
of Tulsu Ram.

e) 1/3rd share of Khal measuring 21′ x 22′,
shown in the plan attachad with the plaint by
letters MNOP, situated in village Karal, Phati
and Kothi Mandalgarh, Tehsil and Distt. Kullu,
towards the eastern western side of the above
said house.

(hereinafter referred to as the ‘suit property’)

::: Downloaded on – 20/09/2024 20:39:34 :::CIS
4 ( 2024:HHC:8884 )

5.2. The suit has been filed on the ground that Shri

Lebhu died issueless on 10.12.1984. After his death,

plaintiffs and defendant No.1, being agnates of the

.

deceased, have inherited his property in equal shares and

the plaintiffs have become owners-in-possession of 2/3 rd

share in the suit property left by deceased Lebhu.

5.3. It is the further case of the plaintiffs that Shri

Dagu, father of Lebhu had two sons namely Lebhu and

Hirdu. Hirdu had two sons namely; Tulku, father of

defendant No.1 and plaintiff No.2; and Shri Runku, father of

plaintiff No.1. Both Tulku and Runku had predeceased

Lebhu. As such, after the death of Lebhu, the plaintiffs have

inherited 2/3rd share out of the suit property and as such,

they are owner in possession of the same.

5.4. As per the plaintiffs, after the death of Lebhu,

defendant No.1, has set up a forged and fictitious un-

registered Will, dated 6.12.1984, allegedly executed by

Lebhu, in his favour, on the basis of which, he got mutations

No.1004 & 1126, dated 19.12.84, attested and sanctioned

in his favour.

5.5 It is the further case of the plaintiffs that appeals

were preferred before the Collector Kullu, against the said

mutations, but, the same were disposed off and the matter

::: Downloaded on – 20/09/2024 20:39:34 :::CIS
5 ( 2024:HHC:8884 )

was remanded to A.C. 2nd Grade, Kullu, with a direction to

decide the matter afresh. Thereafter, the Assistant

Collector 2nd Grade, on the basis of the aforesaid Will, has

.

illegally attested and sanctioned the aforesaid mutations.

5.6. As per the plaintiffs, Shri Lebhu never executed

any Will in favour of defendant No.1, nor, there was any

occasion or need for the deceased to execute the alleged

Will, in favour of defendant No.1, as relation between the

deceased and defendant No.1 were strained for the last so

many years.

5.7. Asserting the fact that the plaintiffs had rendered

whole heartedly and devoted services to the deceased,

whereas, defendant No.1, never rendered any sort of

service to the deceased, as such, Will is stated to be not

executed by the testator, with his sound disposing state of

mind. The said Will is also stated to be allegedly executed

3-4 days prior to the death of Shri Lebhu.

5.8. Lastly, it has been pleaded that on the basis of

mutations, defendant No.1, has now started interfering in

the peaceful possession of the plaintiffs over the suit

property, as such, the suit has been filed.

6. On the basis of the above facts, a prayer has

been made to decree the suit, as prayed for.

::: Downloaded on – 20/09/2024 20:39:34 :::CIS

6 ( 2024:HHC:8884 )

7. When put to notice, the suit was contested by

defendants, by filing the written statement.

7.1. In the written statement, filed by defendant

.

No.1, he has taken the preliminary objections, that the

plaintiffs have no locus standi and cause of action to file and

maintain the present suit; the suit of the plaintiffs is not

maintainable, in the present form; the suit is barred by

limitation; the plaintiffs are estopped to file the present suit,

by their act and conduct; the suit is bad for non-joinder of

necessary parties; and the suit has not been properly

valued for the purposes of Court fee and jurisdiction.

7.2. On merits, the suit has been contested by

pleading that out of love and affection and in lieu of the

past and future services rendered by defendant No.1, Lebhu

has executed Will dated 6.12.1984, in his favour and on the

basis of the said Will, he has claimed ownership and

possession over the suit property. He has specifically

denied that his relationship with Lebhu Ram were strained.

Hence, he has prayed that the suit may kindly be dismissed.

8. Defendant No.2, has filed separate written

statement, by admitting the claim of the plaintiffs.

9. The plaintiffs filed the replication to the written

statement, filed by defendant No.1, by denying the

::: Downloaded on – 20/09/2024 20:39:34 :::CIS
7 ( 2024:HHC:8884 )

preliminary objections, as well as, the contents of the

written statement, by virtue of which, the suit has been

contested, reasserting that of the plaint.

.

10. From the pleadings of the parties, the learned

trial Court has framed the following issues, vide order dated

6.7.1988: –

(1) Whether the plaintiffs have no locus standi and
cause of action to maintain this suit? OPD

(2) Whether this suit is not maintainable as alleged?

OPD

(3) Whether this suit is within limitation? OPP

(4) Whether the plaintiffs are estopped by their act

and conduct from filing this suit? OPD

(5) Whether this suit is bad for non joinder of the
necessary parties? OPD

(6) Whether this suit has not been properly valued
for the purposes of court fees and jurisdiction? If
so what is its correction valuation for this

purpose. OP Parties

(7) Whether Lebhu deceased executed a valid Will in

favour of defendant No.1? OPD

(8) If issue No.7 is not proved, who are entitled to

inherit the property left by deceased Lebhu?

                                                             OPP

          (9)     Relief.


11. Thereafter, the parties to the lis were directed to

adduce evidence.

12. After closure of the evidence, upon hearing the

learned counsel for the parties, the learned trial Court has

::: Downloaded on – 20/09/2024 20:39:34 :::CIS
8 ( 2024:HHC:8884 )

dismissed the suit of the plaintiffs, vide judgment and

decree, dated 15.11.1991.

13. Aggrieved from the said judgment and decree,

.

the plaintiffs have preferred appeal, before the learned First

Appellate Court, who had dismissed the appeal vide

judgment and decree dated 09.11.1994.

14. Against the said judgment and decree, the

present Regular Second Appeal has been preferred, before

this Court, on the ground that the Courts below have

misconstrued and misread the pleadings of the parties, as

well as, the oral and documentary evidence. According to

the appellants, Will Ex.DW-2/A, set up by defendants, was

neither legal nor its due execution had been proved, in

accordance with law.

14.1. As per the appellants-plaintiffs, the will is

shrouded by several suspicious circumstances, which have

not been dispelled by the beneficiary.

14.2. According to the appellants-plaintiffs, it has been

proved on record that testator was an old man, suffering

from Asthama and other ailments, the immediate residents

of the area have not joined in the execution of the Will, and

the testator had died 3-4 days, after the execution of the

alleged Will.

::: Downloaded on – 20/09/2024 20:39:34 :::CIS

9 ( 2024:HHC:8884 )

14.3. Heavily relying upon the statement of PW-7,

Government Examiner of Questioned Documents, a prayer

has been made to allow the appeal, by setting aside the

.

judgment and decree passed by the learned trial Court and

affirmed by the learned First Appellate Court. A prayer has

also been made to decree the suit, as prayed for.

15. The appeal has been admitted on the following

substantial questions of law, by this Court, vide order dated

25.3.1995:- r
“1. Whether the document of title Ext. DW2/A has
been mis-read and misconstrued and could not

be relied upon having not been duly proved in
accordance with Section 63 of the Indian
Succession Act particularly when the testator and
the attesting witnesses had not signed the will in
the presence of each other?

2. Whether the Will Ex.DW2/A was a forged and
fictitious documents and could not be relied upon
particularly when the circumstances attached to

the execution of the Will have neither been
explained or the will was proved in accordance

with law?”

16. The appeal was allowed, by this Court, vide

judgment dated 28.11.2006 and the judgments and decrees

passed by the learned trial Court and learned First Appellate

Court, had been set aside and the suit of the plaintiff was

decreed, by holding that the plaintiffs had inherited the

estate of deceased Labhu, along with respondent-defendant

No.1 Kali Dass, in equal shares. Decree for joint possession

::: Downloaded on – 20/09/2024 20:39:34 :::CIS
10 ( 2024:HHC:8884 )

to the extent of their share was also passed in favour of the

appellants-plaintiffs and against respondent-defendant No.1

Kali Dass.

.

17. The said judgment and decree has been assailed

by defendant Kali Dass, by way of Civil Appeal No.4127 of

2008, before the Hon’ble Supreme Court, which has been

allowed by setting aside the judgment and decree passed

by this Court and Hon’ble Apex Court has remanded the

case back to this Court to examine the appeal afresh in

accordance with law. Operative part of the judgment of

Hon’ble Apex Court, is reproduced, as under:-

” Apart from that what were contradictions
in the statement of scribe and attesting witness

had not been referred to. The reason adopted to
rely on witnesses by the first appellate court was
that they were respectable person of the village
being Lambardar and Uppradhan. There was no

reason for them to speak a lie. Will had been
signed by which pen is not very material
contradiction as the witness had deposed after

lapse of time in the court as such there could be
such minor discrepancy. It could also not be a
substantial ground that a person had been

summoned to scribe document who was residing
at a village two kms. away and whereas literate
persons were available in the village itself when
Will had been executed, without examining
evidentiary value of deposition it was not proper
to discard the same only on the aforesaid
ground. Minor discrepancies have been given
undue importance. The various reasons given by
the trial court and the first appellate court had
not been adverted to by the High Court. The
High Court had reversed the judgment and
decree of the two courts without finding
perversity in appreciation of evidence. Hence, we
set aside the judgment and decree passed by
the High Court and remit the case back to the

::: Downloaded on – 20/09/2024 20:39:34 :::CIS
11 ( 2024:HHC:8884 )

High Court to examine the appeal afresh in
accordance with law. In case the High Court
decide again to reverse the judgment and
decree, it would be its bounden duty to access
evidence and give the reasons for disbelieving
witnesses considering reasoning given by the

.

two courts below and also to consider the scope

of interference within the parameters of Section
100 of the Code of Civil Procedure, 1908. Appeal
is accordingly allowed. We remit the matter to
the High Court for decision afresh in accordance

with law after hearing the parties. We make it
clear that we have not expressed any opinion on
the merits of the case. No costs.

(Self emphasis supplied)

18.

The plaintiffs are before this Court, in Regular

Second Appeal, against the concurrent findings, as their suit

has been dismissed, by the learned trial Court and the

appeal has also been dismissed, by the learned First

Appellate Court.

19. Hon’ble Apex Court in Major Singh Versus

Rattan Singh (Dead) by LRs & Others, (1997) 3

Supreme Court Cases 546, has elaborately discussed the

situation, in which, even the concurrent findings can be

interfered with by the High Court in Regular Second Appeal.

Relevant paragraph 3 of the judgment, is reproduced, as

under:-

“3. Learned counsel for the appellant has
contended that the High Court could not
interfere under Section 100, CPC since the
suspicious features of the will are questions of
facts. The trial Court and the appellate Court
had considered the suspicious feature and were
not inclined to interfere. It is the duty of the
propounder of the Will to establish that Will was

::: Downloaded on – 20/09/2024 20:39:34 :::CIS
12 ( 2024:HHC:8884 )

validly executed removing all the suspicious
features satisfying conscience of the Court. In
that behalf, the high Court was not justified in
interfering in the second appeal as there was
on substantial question of law for decision
under Section 100 CPC. It is seen that it is an

.

admitted position that Rattan Singh, on coming

to know that his brother was unwell, had gone
from Calcutta to see him. After his coming, the
Will came to be executed and the execution of
the Will also was not disputed. The only

question is: whether the Will came to be
executed in the normal circumstances? The
courts below relied heavily on two suspicious
features, namely, the Will was not produced at
the earliest point of them, it was produced

sometime before the trial. secondly, the at
testators were disbelieved on two grounds,
namely, that Hari Singh, one of the at testators
had not disclosed that the Will was not
executed when the mutation was effected in

his presence. The High Court has explained

that the mutation was not properly removed
and that there was no reason to disbelieve that
fact. The High Court had perused the original as
well as the photocopy of the will produced in
the trial Court in the first instance. The High

Court has found that there is no interpolation in
the original Will. Therefore, the rejection of the
evidence of the attestaor, Hari Singh’s evidence
was found to be not correct. As regards the

other attestator- witness, by name Gurdev
Singh, It was disbelieved on the ground that he

filed a suit in a litigation against Jeet Singh. It
was hardly a ground to disbelieve the evidence
of the attestator’s evidence. Under these
circumstances, when the courts below had

rejected and disbelieve the evidence on the
ground that the propounder had not properly
discharged his duty, it is the duty of the High
Court to consider whether the reasons given by
the courts below were sustainable in law. In
view of the above reasoning of the trial Court
as affirmed by the appellate Court, necessarily
the High Court requires to go into that question
to test the reasons. in this perspective, the
High Court has rightly gone into that question
and found that the reasons given by the courts
below are flimsy. Thus there is substantial
question of law that has arisen for
consideration and the High Court has rightly

::: Downloaded on – 20/09/2024 20:39:34 :::CIS
13 ( 2024:HHC:8884 )

considered the question. We are entirely agree
with the High Court.”

20. It would be apt to reproduce paragraphs 12 to 15

.

of the judgment in Santosh Hazari Versus Purushottam

Tiwari (deceased) by LRs (2001) 3 Supreme Court

Cases 179, as under:-

“12. The phrase substantial question of law, as
occurring in the amended Section 100 is not
defined in the Code. The word substantial, as

qualifying question of law, means – of having
substance, essential, real, of sound worth,
important or considerable. It is to be understood
as something in contradistinction with – technical,

of no substance or consequence, or academic
merely. However, it is clear that the Legislature

has chosen not to qualify the scope of substantial
question of law by suffixing the words of general
importance as has been done in many other
provisions such as Section 109 of the Code or
Article 133(1)(a) of the Constitution. The

substantial question of law on which a second
appeal shall be heard need not necessarily be a
substantial question of law of general
importance. In Guran Ditta & Anr. Vs. T. Ram

Ditta, the phrase substantial question of law as it
was employed in the last clause of the then

existing Section 110 of the C.P.C. (since omitted
by the Amendment Act, 1973) came up for
consideration and Their Lordships held that it did
not mean a substantial question of general

importance but a substantial question of law
which was involved in the case as between the
parties. In Sir Chunilal V. Mehta & Sons Ltd. Vs.
The Century Spinning and Manufacuring Co., Ltd.,
the Constitution Bench expressed agreement
with the following view taken by a Full Bench of
Madras High Court in Rimmalapudi Subba Rao Vs.
Noony Veeraju:

“When a question of law is fairly arguable,
where there is room for difference of
opinion on it or where the Court thought it
necessary to deal with that question at
some length and discuss alternative view,
then the question would be a substantial

::: Downloaded on – 20/09/2024 20:39:34 :::CIS
14 ( 2024:HHC:8884 )

question of law. On the other hand if the
question was practically covered by the
decision of the highest Court or if the
general principles to be applied in
determining the question are well settled
and the only question was of applying those

.

principles to the particular fact of the case

it would not be a substantial question of
law.

and laid down the following test as proper test,

for determining whether a question of law raised
in the case is substantial:-

“The proper test for determining whether a
question of law raised in the case is
substantial would, in our opinion, be

whether it is of general public importance
or whether it directly and substantially
affects the rights of the parties and if so
whether it is either an open question in the
sense that it is not finally settled by this

Court or by the Privy Council or by the

Federal Court or is not free from difficulty
or calls for discussion of alternative views.
If the question is settled by the highest
Court or the general principles to be
applied in determining the question are

well settled and there is a mere question of
applying those principles or that the plea
raised is palpably absurd the question
would not be a substantial question of law.”

13. In Deputy Commr., Hardoi, in charge Court
of Wards, Bharawan Estate Vs. Rama Krishna

Narain & Ors., AIR 1953 SC 521, also it was held
that a question of law of importance to the
parties was a substantial question of law entitling

the appellant to certificate under (the then)
Section 110 of the Code.

14. A point of law which admits of no two
opinions may be a proposition of law but cannot
be a substantial question of law. To be
substantial, a question of law must be debatable,
not previously settled by law of the land or a
binding precedent, and must have a material
bearing on the decision of the case, if answered
either way, in so far as the rights of the parties
before it are concerned. To be a question of law
involving in the case there must be first a
foundation for it laid in the pleadings and the
question should emerge from the sustainable
findings of fact arrived at by court of facts and it

::: Downloaded on – 20/09/2024 20:39:34 :::CIS
15 ( 2024:HHC:8884 )

must be necessary to decide that question of law
for a just and proper decision of the case. An
entirely new point raised for the first time before
the High Court is not a question involved in the
case unless it goes to the root of the matter. It
will, therefore, depend on the facts and

.

circumstance of each case whether a question of

law is a substantial one and involved in the case,
or not; the paramount overall consideration being
the need for striking a judicious balance between
the indispensable obligation to do justice at all

stages and impelling necessity of avoiding
prolongation in the life of any lis.

15. A perusal of the judgment of the trial Court
shows that it has extensively dealt with the oral

and documentary evidence adduced by the
parties for deciding the issues on which the
parties went to trial. It also found that in support
of his plea of adverse possession on the disputed
land, the defendant did not produce any

documentary evidence while the oral evidence
adduced by the defendant was conflicting in

nature and hence unworthy of reliance. The first
appellate Court has, in a very cryptic manner,
reversed the finding on question of possession
and dispossession as alleged by the plaintiff as
also on the question of adverse possession as

pleaded by the defendant. The appellate Court
has jurisdiction to reverse or affirm the findings
of the trial Court. First appeal is a valuable right
of the parties and unless restricted by law, the

whole case is therein open for rehearing both on
questions of fact and law. The judgment of the

appellate Court must, therefore, reflect its
conscious application of mind, and record
findings supported by reasons, on all the issues

arising along with the contentions put forth, and
pressed by the parties for decision of the
appellate Court. The task of an appellate Court
affirming the findings of the trial Court is an
easier one. The appellate Court agreeing with the
view of the trial Court need not restate the effect
of the evidence or reiterate the reasons given by
the trial Court; expression of general agreement
with reasons given by the Court, decision of
which is under appeal, would ordinarily suffice
(See Girijanandini Devi & Ors. Vs. Bijendra Narain
Choudhary. We would, however, like to sound a
note of caution. Expression of general agreement
with the findings recorded in the judgment under
appeal should not be a device or camouflage

::: Downloaded on – 20/09/2024 20:39:34 :::CIS
16 ( 2024:HHC:8884 )

adopted by the appellate Court for shirking the
duty cast on it. While writing a judgment of
reversal the appellate Court must remain
conscious of two principles. Firstly, the findings of
fact based on conflicting evidence arrived at by
the trial Court must weigh with the appellate

.

Court, more so when the findings are based on

oral evidence recorded by the same presiding
Judge who authors the judgment. This certainly
does not mean that when an appeal lies on facts,
the appellate Court is not competent to reverse a

finding of fact arrived at by the trial Judge. As a
matter of law if the appraisal of the evidence by
the trial Court suffers from a material irregularity
or is based on inadmissible evidence or on
conjectures and surmises, the appellate Court is

entitled to interfere with the finding of fact. The
rule is – and it is nothing more than a rule of
practice – that when there is conflict of oral
evidence of the parties on any matter in issue
and the decision hinges upon the credibility of

witnesses, then unless there is some special

feature about the evidence of a particular witness
which has escaped the trial Judges notice or there
is a sufficient balance of improbability to displace
his opinion as to where the credibility lies, the
appellate Court should not interfere with the

finding of the trial Judge on a question of fact.
Secondly, while reversing a finding of fact the
appellate Court must come into close quarters
with the reasoning assigned by the trial Court

and then assign its own reasons for arriving at a
different finding. This would satisfy the Court

hearing a further appeal that the first appellate
Court had discharged the duty expected of it. We
need only remind the first appellate Courts of the
additional obligation cast on them by the scheme

of the present Section 100 substituted in the
Code. The first appellate Court continues, as
before, to be a final Court of facts; pure findings
of fact remain immune from challenge before the
High Court in second appeal. Now the first
appellate Court is also a final Court of law in the
sense that its decision on a question of law even
if erroneous may not be vulnerable before the
High Court in second appeal because the
jurisdiction of the High Court has now ceased to
be available to correct the errors of law or the
erroneous findings of the first appellate Court
even on questions of law unless such question of
law be a substantial one.”

::: Downloaded on – 20/09/2024 20:39:34 :::CIS

17 ( 2024:HHC:8884 )

21. In Santosh Hazari’s case (supra), the Supreme

Court has held that the judgment of First Appellate Court

.

must display conscious application of mind and record

findings supported by the reasons on all issues and

contentions, whereas, in the present case, learned First

Appellate Court has affirmed the findings on the ground that

the plaintiffs are married ladies and settled in the

matrimonial homes. In addition to this, the act of testator is

held to be natural to dis-inherit the grand-daughters, who,

according to the learned First Appellate Court, no more

belonged to his family.

22. This view has again been reiterated by the

Hon’ble Apex Court in Govindaraju Versus Mariamman,

(2005) 2 Supreme Court Cases 500. In this case, apart

from discussing the provisions of Section 100, the Hon’ble

Apex Court, has also elaborately discussed the term

‘perverse’. Relevant paragraphs 16 to 19 of the judgment,

are reproduced, as under:-

“16. As per settled law, the scope of exercise of
the jurisdiction by the High Court in Second
Appeal under Section 100 is limited to the
substantial questions of law framed at the time of
admission of the appeal or additional substantial
questions of law framed at a later date after
recording reasons for the same. It was observed
in Santosh Hazari’s case (supra) that a point of
law which admits of no two opinions may be a

::: Downloaded on – 20/09/2024 20:39:34 :::CIS
18 ( 2024:HHC:8884 )

proposition of law but cannot be a substantial
question of law. To be a ‘substantial’ question of
law must be debatable, not previously settled by
law of the land or a binding precedent and
answer to the same will have a material bearing
as to the rights of the parties before the Court. As

.

to what would be the question of law “involving in

the case”, it was observed that to be a question
of law ‘involving in the case’ there must be first a
foundation for it laid in the pleadings and the
question should emerge from the sustainable

findings of fact arrived at by the court of facts
and it must be necessary to decide that question
of law for a just and proper decision between the
parties.

17. After perusal of the findings recorded by
the courts below and the High Court, we are of
the opinion that the questions of law framed at
the time of admission of the appeal were not
questions of substance arising from the findings

record\ed by the courts of fact. The court of fact

recorded the finding that the title in the suit
property did not pass to Veeramuthu Moopanar
and the sale deed dated 1.7.1940 executed by
him in favour of his two daughters was a nominal
and a sham transaction. The court of fact had

also come to the conclusion that there was a
divorce between Thayarammal and Sengamalai
Moopanar under custom and the respondent
herein had failed to prove that Ganapathy

Moopanar was the son of Sengamalai Moopanar
from his first wife. After recording this finding of

fact, the court of fact held that since Ganapathy
Moopanar was not proved to be the son of
Sengamalai Moopanar and that a divorce had
taken place between Thayarammal and

Sengamalai Moopanar, Ganapathy Moopanar
could not succeed to the estate of Thayarammal
being the heir of her husband under Section
15(1)(b) of the Act. That in the absence of any
direct heir, the property of Thayarammal reverted
back to the heirs of her father i.e. the family
members of the brother of her father. The sale
effected by Ganapathy Moopanar in favour of the
respondent did not convey any title as Ganapathy
Moopanar was not proved to be the owner of the
property.

18. The High Court on re-appreciation of
evidence recorded a finding to the contrary and
held that the marriage between Thayarammal

::: Downloaded on – 20/09/2024 20:39:34 :::CIS
19 ( 2024:HHC:8884 )

and Sengamalai Moopanar had not been
dissolved. It further held that Ganapathy
Moopanar was the son of Sengamalai Moopanar
from his previous wife. That the sale executed by
Veeramuthu Moopanar dated 1.7.1940 in favour
of his two daughters was not a nominal and sham

.

transaction. That it conveyed a valid title of the

suit property to his two daughters. As the
daughters had not inherited the property but
purchased the same from their father, they
became the absolute owners of the same.

Thayarammal had inherited the share of her
sister after her death. As Thayarammal had died
issueless and had a step-son Ganapathy
Moopanar from her husband, Ganapathy
Moopanar inherited the suit property being the

heir of her husband under Section 15(1)(b) of the
Act and succeeded to the estate of Thayarammal.
That Ganapathy Moopanar had a conveyable title
in the suit property and the sale made by him in
favour of the respondent was valid and decreed

the suit. This was done on re-appreciation of

evidence present on record. Questions of law
which had been framed at the time of admission
and were referred and reproduced in the
judgment were not adverted to while deciding
the appeal. No finding was recorded on those

questions. After reproducing the questions of law,
the learned Single Judge did not advert to either
of them or record findings on them. The learned
Single Judge proceeded to decide the appeal

thereafter as if after framing the questions of law
the High Court gets the jurisdiction to re-

appreciate the evidence and come to a
conclusion other than the one recorded by the
courts of fact. As observed by this Court in
Santosh Hazari’s case (supra) for the question of

law to be involved in the case, first a foundation
for it has to be laid in the pleadings and the
question should emerge from the sustainable
findings of facts arrived at by the court of fact
and it must be necessary to decide that question
of law for a just and proper decision of the case.
In the present case, the learned Single Judge
proceeded to re-appreciate the evidence and on
re-appreciating the same, set aside the findings
referred to above on facts. On reversal of the
findings referred to above on facts, the High
Court came to the conclusion that Ganapathy
Moopanar would inherit the property under
Section 15(1)(b) being the heir of the husband of
Thayarammal and not under Section 15(2)(a)

::: Downloaded on – 20/09/2024 20:39:34 :::CIS
20 ( 2024:HHC:8884 )

under which property was to revert back to the
heirs of her father. The questions of law which
were framed at the time of admission of the
appeal were not decided by the High Court.

19. Even if the High Court was of the view that

.

the findings of fact recorded by the courts below

were wrong, in our opinion, these findings of fact
could not be disturbed without coming to the
conclusion that the findings recorded were
perverse i.e. based on misreading of evidence or

based on no evidence. The High Court did not
come to such a conclusion. The learned Singh
Judge also did not come to the conclusion that
the appeal involved other substantial questions
of law or formulate the same.

23.

Hon’ble Apex Court in Hero Vinoth (Minor)

Versus Seshammal, (2006) 5 Supreme Court Cases

545, has held that an entirely new point raised for the first

time before the High Court is not a question involved in the

case unless it goes to the root of the case. It will depend

upon the facts and circumstance of each case, whether the

question of law is a substantial one and involved in the case

or not. Relevant paragraphs 20 to 23 of the judgment, are

reproduced, as under:-

“20. The question of law raised will not be
considered as a substantial question of law, if it
stands already decided by a larger Bench of the
High Court concerned or by the Privy Council or
by the Federal Court or by the Supreme Court.
Where the facts required for a point of law have
not been pleaded, a litigant should not be
allowed to raise that question as a substantial
question of law in second appeal. There mere
appreciation of facts, the documentary evidence
or the meaning of entries and the contents of the
documents cannot be held to be raising a

::: Downloaded on – 20/09/2024 20:39:34 :::CIS
21 ( 2024:HHC:8884 )

substantial question of law. But where it is found
that the first appellate court has assumed
jurisdiction which did not vest in it, the same can
be adjudicated in the second appeal, treating it
as a substantial question of law. Where the fact
appellate court is shown to have exercised its

.

discretion in a judicial manner, it cannot be

termed to be an error either of law or of
procedure requiring interference in second
appeal. This Court in Reserve Bank of India v.
Ramkrishna Govind Morey held that whether the

trial court should not have exercised its
jurisdiction differently is not a question of law
justifying interference.

21. The phrase “substantial question of law”,

as occurring in the amended Section 100 of the
CPC is not defined in the Code. The word
substantial, as qualifying “question of law”,
means of having substance, essential, real, of
sound worth, important or considerable. It is to

be understood as something in contradistinction
with technical, of no substance or consequence,

or academic merely. However, it is clear that the
legislature has chosen not to qualify the scope of
“substantial question of law” by suffixing the
words “of general importance” as has been done
in many other provisions such as Section 109 of

the Code or Article 133(1)(a) of the Constitution.
The substantial question of law on which a
second appeal shall be heard need not
necessarily be a substantial question of law of

general importance. In Guran Ditta v. T. Ram
Ditta, the phrase ‘substantial question of law’ as

it was employed in the last clause of the then
existing Section 100 CPC (since omitted by the
Amendment Act, 1973) came up for consideration

and their Lordships held that it did not mean a
substantial question of general importance but a
substantial question of law which was involved in
the case. In Sri Chunilal’s case (supra), the
Constitution Bench expressed agreement with
the following view taken by a full Bench of the
Madras High Court in Rimmalapudi Subba Rao v.
Noony Veeraju:

“When a question of law is fairly arguable,
where there is room for difference of
opinion on it or where the Court thought it
necessary to deal with that question at
some length and discuss alternative views,
then the question would be a substantial
question of law. On the other hand if the

::: Downloaded on – 20/09/2024 20:39:34 :::CIS
22 ( 2024:HHC:8884 )

question was practically covered by the
decision of the highest court or if the
general principles to be applied in
determining the question are well settled
and the only question was of applying
those principles to be particular facts of the

.

case it would not be a substantial question

of law.”

This Court laid down the following test as proper
test, for determining whether a question of law

raised in the case is substantial”

“The proper test for determining whether a
question of law raised in the case is
substantial would, in our opinion, be
whether it is of general public importance

or whether it directly and substantially
affects the rights of the parties and if so
whether it is either an open question in the
sense that it is not finally settled by this
Court or by the Privy Council or by the

Federal Court or is not free from difficulty

or calls for discussion of alternative views.
If the question is settled by the highest
court or the general principles to be
applied in determining the question are
well settled and there is a mere question of

applying those principles or that the plea
raised is palpably absurd the question
would not be a substantial question of law.”

22. In Dy. Commnr. Hardoi v. Rama Krishna
Narain also it was held that a question of law of
importance to the parties was a substantial

question of law entitling the appellant to a
certificate under (the then) Section 100 of the
CPC.

23. To be “substantial” a question of law must
be debatable, not previously settled by law of the
land or a binding precedent, and must have a
material bearing on the decision of the case, if
answered either way, insofar as the rights of the
parties before it are concerned. To be a question
of law “involving in the case” there must be first
a foundation for it laid in the pleadings and the
question should emerge from the sustainable
findings of fact arrived at by court of facts and it
must be necessary to decide that question of law
for a just and proper decision of the case. An
entirely new point raised for the first time before
the High Court is not a question involved in the
case unless it goes to the root of the matter. It

::: Downloaded on – 20/09/2024 20:39:34 :::CIS
23 ( 2024:HHC:8884 )

will, therefore, depend on the facts and
circumstance of each case whether a question of
law is a substantial one and involved in the case,
or not; the paramount overall consideration being
the need for striking a judicious balance between
the indispensable obligation to do justice at all

.

stages and impelling necessity of avoiding

prolongation in the life of any lis.

24. Hon’ble Apex Court in Arulvelu and Another

Versus State represented by the Public Prosecutor &

Another, (2009) 10 Supreme Court Cases 206, has

elaborately discussed the term ‘perverse findings’.

Relevant paragraphs 24 to 30 of the judgment, are

reproduced, as under:-

“24. The expression `perverse’ has been dealt
with in number of cases. In Gaya Din (Dead)
through LRs. & Others v. Hanuman Prasad (Dead)
through LRs. & Others (2001) 1 SCC 501 this

Court observed that the expression `perverse’
means that the findings of the subordinate
authority are not supported by the evidence

brought on record or they are against the law or
suffer from the vice of procedural irregularity.

25. In Parry’s (Calcutta ) Employees’ Union v.
Parry & Co. Ltd. & Others AIR 1966 Cal. 31, the
Court observed that `perverse finding’ means a
finding which is not only against the weight of

evidence but is altogether against the evidence
itself. In Triveni Rubber & Plastics v. CCE, the
Court observed that this is not a case where it
can be said that the findings of the authorities
are based on no evidence or that they are so
perverse that no reasonable person would have
arrived at those findings.

26. In M. S. Narayanagouda v. Girijamma &
Another AIR 1977 Kar. 58, the Court observed
that any order made in conscious violation of
pleading and law is a perverse order.
In Moffett v.
Gough, the Court observed that a perverse
verdict may probably be defined as one that is
not only against the weight of evidence but is

::: Downloaded on – 20/09/2024 20:39:34 :::CIS
24 ( 2024:HHC:8884 )

altogether against the evidence. In Godfrey v.
Godfrey, the Court defined `perverse’ as turned
the wrong way, not right; distorted from the right;
turned away or deviating from what is right,
proper, correct etc.

.

27. The expression “perverse” has been defined

by various dictionaries in the following manner:

1. Oxford Advanced Learner’s Dictionary of
Current English Sixth Edition

“Perverse – Showing deliberate
determination to behave in a way that
most people think is wrong, unacceptable
or unreasonable.”

2. Longman Dictionary of Contemporary

English – International Edition
“Perverse – Deliberately departing from
what is normal and reasonable.”

3. The New Oxford Dictionary of English –

1998 Edition

“Perverse – Law (of a verdict) against the
weight of evidence or the direction of the
judge on a point of law.”

4. New Webster’s Dictionary of the English

Language (Deluxe Encyclopedic Edition)
“Perverse – Purposely deviating from
accepted or expected behavior or opinion;

wicked or wayward; stubborn; cross or
petulant.”

5. Stroud’s Judicial Dictionary of Words &
Phrases, Fourth Edition
“Perverse – A perverse verdict may

probably be defined as one that is not only
against the weight of evidence but is
altogether against the evidence.”

28. In Shailendra Pratap & Another v. State of U.P.
(2003) 1 SCC 761, the Court observed thus:

“We are of the opinion that the trial court
was quite justified in acquitting the
appellants of the charges as the view taken
by it was reasonable one and the order of
acquittal cannot be said to be perverse. It is
well settled that appellate court would not
be justified in interfering with the order of
acquittal unless the same is found to be
perverse. In the present case, the High

::: Downloaded on – 20/09/2024 20:39:34 :::CIS
25 ( 2024:HHC:8884 )

Court has committed an error in interfering
with the order of acquittal of the appellants
recorded by the trial court as the same did
not suffer from the vice of perversity.”

29. In Kuldeep Singh v. The Commissioner of

.

Police & Others (1999) 2 SCC 10, the Court while

dealing with the scope of Articles 32 and 226 of
the Constitution observed as under:

“9. Normally the High Court and this Court
would not interfere with the findings of fact

recorded at the domestic enquiry but if the
finding of “guilt” is based on no evidence, it
would be a perverse finding and would be
amenable to judicial scrutiny.

10. A broad distinction has, therefore, to be
maintained between the decisions which
are perverse and those which are not. If a
decision is arrived at on no evidence or
evidence which is thoroughly unreliable and

no reasonable person would act upon it, the
order would be perverse. But if there is

some evidence on record which is
acceptable and which could be relied upon,
howsoever compendious it may be, the
conclusions would not be treated as
perverse and the findings would not be

interfered with.”

30. The meaning of `perverse’ has been
examined in H. B. Gandhi, Excise and Taxation

Officer-cum- Assessing Authority, Karnal & Others
v. Gopi Nath & Sons & Others 1992 Supp (2) SCC

312, this Court observed as under:

“7. In the present case, the stage at and
the points on which the challenge to the

assessment in judicial review was raised
and entertained was not appropriate. In
our opinion, the High Court was in error in
constituting itself into a court of appeal
against the assessment. While it was open
to the respondent to have raised and for
the High Court to have considered whether
the denial of relief under the proviso to
Section 39(5) was proper or not, it was not
open to the High Court re-appreciate the
primary or perceptive facts which were
otherwise within the domain of the fact-
finding authority under the statute. The
question whether the transactions were or
were not sales exigible to sales tax

::: Downloaded on – 20/09/2024 20:39:34 :::CIS
26 ( 2024:HHC:8884 )

constituted an exercise in recording
secondary or inferential facts based on
primary facts found by the statutory
authorities. But what was assailed in
review was, in substance, the correctness –

                  as     distinguished     from     the    legal




                                                                   .
                  permissibility - of the primary or





perceptive facts themselves. It is, no
doubt, true that if a finding of fact is
arrived at by ignoring or excluding relevant
material or by taking into consideration

irrelevant material or if the finding so
outrageously defies logic as to suffer from
the vice of irrationality incurring the blame
of being perverse, then, the finding is
rendered infirm in law.”

25. Hon’ble
r Apex
toCourt in Rajasthan

Transport Corporation & Another Versus Bajrang Lal,
State

2014(3) Shim.LC 1472, has held that the High Court may

entertain second appeal even, on the question of facts,

where, the factual findings are found to be perverse.

Meaning thereby, if this Court comes to the conclusion that

the findings are perverse, then, the concurrent findings,

recorded by both the Courts below, can be interfered with.

26. Being guided by the said principle, now, this

Court would proceed further to examine, whether the

learned Courts below have rightly appreciated the

pleadings, as well as, the evidence, so adduced by the

parties or not.

27. In this case, the learned trial Court, while

dismissing the suit, has held that Lebhu has executed a

::: Downloaded on – 20/09/2024 20:39:34 :::CIS
27 ( 2024:HHC:8884 )

valid Will in favour of defendant No.1 and the alleged

suspicious circumstances, as pointed out by the plaintiffs, in

the case, have been discarded.

.

28. Similarly, the learned First Appellate Court has

also upheld those findings by moving a step further by

holding that the plaintiffs are married ladies and settled in

their matrimonial houses. Relevant paragraph 17 of the

judgment of learned First Appellate Court, is reproduced, as

under:- r
“17. Otherwise also, the plaintiffs-appellants are
admittedly married ladies and settled in their

matrimonial houses. They had not been residing
with Lebhu. The defendant-respondent No.1 Kali
Dass is the only male member in such family
apart from Lebhu. So both of them were residing
in the same house. It is obvious that defendant-

respondent No.1 had been looking after real
brother of his grandfather and cultivating his
lands etc due to old age of Lebhu. It was, in
these circumstances, but natural that Lebhu

would have given his property to his said grand-
son and not to his grand-daughters who no more

belonged to his family. The suit property is
obviously in exclusive possession of the
defendant-respondent NO.1 after the death of
Lebju as the plaintiffs-appellants are not residing

there. It was due to such reason that Lebhu
executed the Will Ex.PW-2/A in favour of the
defendant-respondent No.1 to the exclusion of
the plaintiffs-appellants. Such Will, in my view, is
the result of natural dis-position of his property
by Lebhu and has been rightly executed by
Lebhu in his wisdom. The learned trial Court has
correctly appreciated the evidence on record in
this behalf. As such, the point is answered in
favour of the defendant-respondent No.1, and
against the plaintiffs-appellants.”

::: Downloaded on – 20/09/2024 20:39:34 :::CIS

28 ( 2024:HHC:8884 )

29. The learned First Appellate Court, while

upholding the findings of the learned trial Court, qua the

Will, has held that on perusing the admitted signatures of

.

Lebhu @ Lebhu Ram, on Exts.PW-7/A, PW-3/A and PW-5/A,

no dis-similarity has been noticed and held that the same

appeared to have been written by the same person, even to

the naked eye. While holding so, the evidence of the

expert, has been discarded merely on the ground that the

opinion of handwriting expert cannot be taken to be

conclusive, as, the science of judging handwriting by

comparison is not very precise.

30. Learned First Appellate Court has discussed the

suspicious circumstances that in the first line of the Will

Ex.DW-2/A only ‘Labbu’ is mentioned, whereas, the

signatures have been written in the bottom as ‘Labhu Ram’.

While nagating this plea of the plaintiffs, the learned First

Appellate Court has placed reliance upon sale deed Ex.PW-

5/A, where the name of the vendor has been written as

Labhu and not Labhu Ram.

31. The second suspicious circumstance, which has

been discussed by the learned First Appellate Court is that,

according to the deposition of DW-3, there were illiterate

people and Panches in the village of the testator and Will

::: Downloaded on – 20/09/2024 20:39:34 :::CIS
29 ( 2024:HHC:8884 )

has been scribed and attested by the persons belonging to

other villages.

32. It has been held by the learned First Appellate

.

Court that it is not necessary that the scribe and attesting

witnesses have to be from the neighbourhood of the

testator or from his village itself, unless it is shown that

such witnesses had a special interest in favour of defendant

No.1.

33. The third circumstance, which the learned First

Appellate Court has discussed, is about the illness of Lebhu

and according to the learned First Appellate Court, the

evidence is too short to hold that due to Asthma, the

testator was incapacitated physically or mentally to execute

the Will. During the transaction, Lebhu was having sound

state of mind, as such, he has executed the will in favour of

defendant No.1.

34. The another circumstance, which had been

discussed by the learned First Appellate Court is that the

defendant has taken active part in execution of the Will.

35. The other fact, which had been taken into

consideration by the learned First Appellate Court to uphold

the findings of learned trial Court is that plaintiffs are

admittedly married ladies and settled in their matrimonial

::: Downloaded on – 20/09/2024 20:39:34 :::CIS
30 ( 2024:HHC:8884 )

home and were not residing with him, as such, the Will was

executed in favour of defendant No.1, who is the only male

member in the family.

.

36. By upholding the act of Lebhu, in execution of

the alleged Will, in favour of defendant No.1, it has been

held that it was natural for the testator to give his property

to his grand-sons and not to his grand-daughters, who, no

more belonged to his family.

37. In such situation, now, this Court will proceed

further to decide the substantial question of law framed in

this case.

38. This Court is not in agreement with the findings

recorded by the learned First Appellate Court in para 17, as

discrimination amongst agnates on account of sex is

antithesis to Article 15 of the Constitution of India.

39. There is no evidence, available on record, on the

basis of which, the learned First Appellate Court could have

derived the presumption that the plaintiffs, being grand

daughters, are not entitled for the property of testator. In

this case, it is not in dispute that the alleged Will was

executed on 6.12.1984, and testator expired on 10.12.1984,

i.e. after four days from the alleged execution of Will.

::: Downloaded on – 20/09/2024 20:39:34 :::CIS

31 ( 2024:HHC:8884 )

40. Will is a solemn document, which speaks about

the intention of the testator, regarding the arrangement,

which, he intends to make, with regard to his estate. The

.

Will comes into operation after the death of the testator.

41. In other words, it can be said that the Will has to

be considered, at the time, when, the testator is not in the

land of living, to say about his intention. In such situation,

the Court has to take into consideration, all the

circumstances, which the testator would have taken into

consideration, while executing the Will.

42. The Court has to put itself in the arm chair of the

testator to consider all the relevant factors, which have

been taken into consideration by the testator and no

universal yardstick can be framed, to say that these

ingredients, if fulfilled, then, the said document will be

considered, as validly executed Will by the testator, with his

sound disposing state of mind.

43. Before relying upon the document (Will), as

validly executed document, by conscious mind of the

testator, it is for the propounder of the document to dispel

all the suspicious circumstances.

::: Downloaded on – 20/09/2024 20:39:34 :::CIS

32 ( 2024:HHC:8884 )

44. The term ‘suspicious circumstance’ has nowhere

been defined under the Law. However, the same has to be

considered according to the circumstances of each case.

.

45. In this case, onus was upon defendant No.1,

being propounder of the Will, to prove the due execution of

the Will. As per the provisions of Section 63 of the Indian

Succession Act and Section 68 of the Indian Evidence Act,

before accepting the document, as a Will, the same should

have been attested by two witnesses and the propounder is

duty bound to examine, atleast one witness, to prove the

factum of attestation of Will, by the attesting witnesses.

46. In addition to this, defendant No.1 was also

bound to prove that at the time of execution of the Will, the

testator was in sound disposing state of mind.

47. To prove the above facts, the evidence of DW-1,

propounder, DW-2, Hari Krishan, Scribe and DW-3, Kalu,

Numberdar, who has been examined as attested witness is

required to be discussed.

48. DW-1, is the person, in whose favour, the

testator has allegedly executed the Will. Apart from the fact

that the testator was issueless and DW-1 is the only son of

his father, this witness has further deposed that as per the

custom, the property is being inherited from father to son.

::: Downloaded on – 20/09/2024 20:39:34 :::CIS

33 ( 2024:HHC:8884 )

This deposition is not liable to be taken into consideration,

as, in order to take the benefit of custom, the same should

have specifically been pleaded and proved by leading

.

cogent evidence. Simply, making the statement, in the

examination-in-chief, without pleading, is not sufficient to

take such plea in consideration. As such, the plea is not

available to the plaintiffs.

49. Defendant No.1 has also made a futile attempt,

to show that the property could only be inherited by the

male issue. In the absence of specific pleadings, about the

customs, the said deposition is against the provisions of

Section 8 of the Hindu Succession Act.

50. Defendant No.1, who appeared in the witness-

box, as DW-1, is the propounder of the Will and when, the

mutation proceedings were conducted, by the revenue

authorities to enter the mutation, on the basis of the Will,

DW-1 has deposed that at the time of execution of the Will,

he was present there. This fact, although, has been denied

by DW-1, in the cross-examination.

51. Men may tell lie, the document would not. While

recording the statement of DW-1, the learned trial Court has

ordered that “the defendant is directed to place certified

copy of the statements in the mutation proceedings on the

::: Downloaded on – 20/09/2024 20:39:34 :::CIS
34 ( 2024:HHC:8884 )

file.” Those statements are placed on the file at page

Nos.85 to 95. In those proceedings, defendant Kali Dass

has deposed regarding the Will and from his deposition, it

.

can be inferred that he has not disputed his presence at the

time of alleged execution of the Will by the testator.

52. Presence of defendant No.1 Kali Dass, at the time

of execution of the alleged Will, ipso facto, does not create

any suspicious circumstance, but, the manner, in which, he

has replied the questions, which were put to him, in the

cross-examination, gives an occasion for this Court to draw

an inference that he was more interested to hide his

presence at the time of execution of the Will by the testator,

for the reasons best known to him, than to state true facts.

53. From the deposition, as recorded, by the revenue

authorities, in the mutation proceedings, it can easily be

said that the propounder has taken active part, in the

execution of the document, which has been relied upon, by

the defendant, as Will of the testator.

54. In the document Ex.DW-2/A, testator has given

his age as 62 years. In this document, the testator has not

given even the reference of plaintiffs, as well as, proforma

defendant No.2. Defendant No.1 has been referred to as

::: Downloaded on – 20/09/2024 20:39:34 :::CIS
35 ( 2024:HHC:8884 )

grand-son of the testator, whereas, plaintiffs are grand-

daughters of Labhu.

55. The document Ex.DW-2/A, which is being

.

projected by defendant No.1, as a validly executed Will of

the testator, with sound disposing state of mind, has been

stated to be signed by Jagarnath and Kalu, (Harijan

Lambardar), as witnesses and the same has been scribed by

Harikrishan. Out of the persons, who have allegedly been

shown as attesting witnesses, one Kalu was examined, by

the propounder of the Will, as DW-3.

56. The Hon’ble Apex Court in Pentakota

Satyanarayana & Ors versus Pentakota Seetharatnam

& Otheres, 2006 (1) Civil Court Cases 563 (SC), has

discussed the essentials, which are required to be proved, in

order to accept the document, as validly executed Will.

Paragraph 22 of the said judgment is reproduced, as under:-

“22. It is clear from the definition that the

attesting witness must state that each of the
two witnesses has seen the executor sign or
affix his mark to the instrument or has seen
some other persons sign the instrument in the
presence and by the direction of the executant.
The witness should further state that each of the
attesting witnesses singed the instrument in the
presence of the executant. These are the
ingredients of attestation and they have to be
proved by the witnesses. The word ‘execution’ in
Section 68 includes attestation as required by
law.”

::: Downloaded on – 20/09/2024 20:39:34 :::CIS

36 ( 2024:HHC:8884 )

57. The Hon’ble Supreme Court in Girja Datt Singh

versus Gangotri Datt Singh, AIR 1955 SC 346, has

elaborately discussed the term ‘attestation’. Relevant

.

paragraph 14 of the said judgment, is reproduced, as

under:-

“14. It still remains to consider whether the
attestation of the signature of the deceased on
the will, Ex. A-36 was in accordance with the
requirements of Section 63, Indian Succession
Act. Section 63 prescribes that:

“(c) The will shall be attested by two or more
witnesses, each of whom has seen the
testator sign or affix his mark to the will or

has seen some other person sign the will, in
the presence and by the direction of the

testator, or has received from the testator a
personal acknowledgment of his signature or
mark, or of the signature of such other
person; and each of the witnesses shall sign
the will in the presence of the

testator …………..”

In order to prove the due attestation of the will
Ex. A-36 Gangotri would have to prove that Uma

Dutt Singh and Badri Singh saw the deceased
sign the will and they themselves signed the

same in the presence of the deceased. The
evidence of Uma Dutt Singh and Badri Singh is
not such as to carry conviction in the mind of the
Court that they saw the deceased sign the will

and each of them appended his signature to the
will in the presence of the deceased. They have
been demonstrated to be witnesses who had no
regard for truth and were ready and willing to
oblige Gur Charan Lal in transferring the venue
of the execution and attestation of the
documents Ex. A-23 and Ex. A-36 from Gonda to
Tarabganj for reasons best known to themselves.

If no reliance could thus be placed upon
their oral testimony, where would be the
assurance that they actually saw the deceased
execute the will in their presence and each of
them signed the will in the presence of the
deceased. It may as well be that the signature of

::: Downloaded on – 20/09/2024 20:39:34 :::CIS
37 ( 2024:HHC:8884 )

the deceased on the will was appended at one
time, the deceased being there all alone by
himself and the attestations were made by Uma
Dutt Singh and Badri Singh at another time
without having seen the deceased sign the will or
when the deceased was not present when they

.

appended their signatures thereto in token of

attestation. We have no satisfactory evidence
before us to enable us to come to the conclusion
that the will was duly attested by Uma Dutt
Singh and Badri Singh and we are therefore

unable to hold that the will Ex. A-36 is proved to
have duly been executed and attested.”

58. In view of the above decisions of the Hon’ble

Supreme Court, now, this Court would proceed to examine

the statement of DW-3, to ascertain the fact as to whether

the execution of the Will has duly been proved by this

witness or not.

59. In the opening lines, DW-3 has deposed that the

Will Ex.DW-2/A was allegedly executed by Labhu, in favour

of Kali Dass, which was scribed by Hari Krishan, DW-2. He

has further deposed, in his examination-in-chief, that he

does not remember the name of the other attesting

witness. He is Lambardar of the village and the other

attesting witness has given his address as Village Karal,

Kothi Mandalgarh, Kullu. Had DW-3 been signed this

document, in the presence of Jagarnath, as projected by

defendant No.1, then, in the natural course of events, he

::: Downloaded on – 20/09/2024 20:39:34 :::CIS
38 ( 2024:HHC:8884 )

would have remembered the name of other attesting

witness.

60. DW-3 has further deposed that the Will was

.

scribed by Hari Krishan and at the relevant time, Labhu was

having control over his senses and after scribing the Will

Hari Krishan has read over the same to the testator, who

has, accepted the same, as correct and put his signatures.

Thereafter, other witness has put his signature and then this

witness has also signed the same. In his further deposition,

this witness has taken the extra cautious approach by

deposing that Kali Dass was not present there and testator

has apprised this witness that the same has given to Kali

Dass defendant No.1, whereas, in the earlier paragraph of

the judgment, this Court has discussed the fact that from

the deposition of DW-1, it has been proved that he had

taken active part in the execution of the Will, by the

testator.

61. In the cross-examination, DW-3 has deposed that

testator has requested him to come 3-4 days ago.

However, he could not disclosed the fact as to who had

directed scribe Hari Krishan to come. He has also deposed

that the other witness might have called by Labhu. He has

also deposed that when he reached at the house of Labhu,

::: Downloaded on – 20/09/2024 20:39:34 :::CIS
39 ( 2024:HHC:8884 )

Hari Krishan and the other witness were already there.

According to his further deposition two papers were

prepared, earlier subject matter was prepared and

.

thereafter, the Will was scribed. The Will was allegedly

scribed in the Courtyard. Earlier, they were sitting in the

‘verandah’ and when, testator has told them that

Lambardar has come, then they had come to Courtyard. At

that time, other persons were sitting in the ‘Mandari’ (cot)

and this witness was sitting at ‘Paur’ (first step of the

staircase), being Harijan. His further deposition qua the fact

that on the next day, from the date of execution of the

alleged Will, Labhu has told him that he has executed Will in

favour of Kali Dass and the same was handed over to him.

62. This deposition is sufficient to take away his

statement, out of the purview of the deposition of attesting

witness. When, this witness came to know about the fact

that testator has executed the Will in favour of Kali Dass,

next day from the execution of the Will, then whatsoever,

he has deposed is liable to be ignored. Statement of the

witness is to be considered, as a whole and not in

piecemeal.

63. This witness is claiming to be the co-villager of

the testator, but, the important fact of the death of testator

::: Downloaded on – 20/09/2024 20:39:34 :::CIS
40 ( 2024:HHC:8884 )

has been deposed by him, as 8-9 days, after scribing the

Will, whereas, testator has expired on the 4 th Day from the

date of alleged execution of the Will. All these facts assume

.

significance, as the Will is unregistered and even person,

who has scribed the same, has not deposed anything about

his status, as to why he has been chosen to scribe the Will

of the testator. Neither he is deed writer nor petition writer.

64. Even otherwise, Hari Krishan, DW-2, has taken

the over conscious approach, by mentioning his designation

over the document Ex.DW-2/A, as ‘Katib’ (Writer). Even, he

has also deposed that Kali Dass DW-1, was not present

there, when, the Will was allegedly scribed by him and no

discussion had taken place about Kali Dass. As such, the

very presence of DW-3, who has been examined by the

propounder, as attesting witness, becomes doubtful.

65. The learned trial Court, while deciding issue

No.7, has only discussed the examination-in-chief of DW-2

and material facts deposed by him, regarding the absence

of Kali Dass, has simply been reproduced in the discussion,

but, its effect has not been considered. Had the entire

statement of DW-2 been considered by the learned trial

Court, in its right perspective, then, the conclusion, which

::: Downloaded on – 20/09/2024 20:39:34 :::CIS
41 ( 2024:HHC:8884 )

had been drawn, by the learned trial Court, would have

been otherwise.

66. Merely, reproducing the deposition of the

.

witnesses is not discussion of the evidence. Material facts,

which have been deposed, by the witnesses, have to be

discussed, in order to draw the legal conclusion.

67. Similarly, the evidence of DW-3, has simply been

reproduced and the material deposition, as referred to

above, has not been considered. As such, this Court is of

the view that the findings on issue No.7, fall within the

definition of perverse findings, as the entire statements of

witnesses have not been taken into consideration.

68. Similarly, learned First Appellate Court has also

fallen into an error by not discussing these material aspects,

regarding the presence of DW-1 and DW-3, being final Court

of facts. These material facts ought to have been

discussed, by the learned First Appellate Court.

69. No other point urged or argued.

70. In view of the discussion made above, the

judgment and decree passed by the learned trial Court, as

affirmed by the learned First Appellate Court, does not stand

in the judicial scrutiny by this Court. Therefore, the

::: Downloaded on – 20/09/2024 20:39:34 :::CIS
42 ( 2024:HHC:8884 )

judgments and decrees passed by both the Courts below,

are liable to be set aside.

71. Consequently, the appeal is allowed, the

.

judgments and decrees passed by both the Courts below

are set aside and the suit of the plaintiff is decreed, as

prayed for. The estate of Labhu is ordered to be devolved

as per Section 8 of the Hindu Succession Act.

72. Decree sheet be prepared accordingly.

73. Pending application(s), if any, shall also stand

disposed of.

74. Record be sent back.




                                                 (Virender Singh)



    September 20, 2024(ps)                              Judge







                                            ::: Downloaded on - 20/09/2024 20:39:34 :::CIS
 

Source link

Leave a Reply

Your email address will not be published. Required fields are marked *