Bansi Dhar & Ors. v. Sh. Navnit Lal & Ors.

CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Vinod S. Bhardwaj, Advocate for the appellants. Mr.C.B. Goel, Advocate for the respondents. **** VINOD K. SHARMA, J. (ORAL) C.M. No. 4395-C of 2009 For the reasons stated in the application, the order dated

5.3.2009 is recalled and the case is restored to its original number. C.M. stands disposed of. R.S.A. No. 282 of 1992 The plaintiff / appellants by way of this regular second appeal have challenged the judgment and decree passed by the learned Courts below, dismissing the suit filed by the plaintiff / appellants for declaration and possession. The plaintiff / appellants by claiming themselves to be the collaterals of Uttam Chand deceased sought declaration of ownership along R.S.A. No. 282 of 1992 2 with a consequential relief of possession by pleading therein, that deceased Uttam Chand had executed a Will on 6.3.1966 bequeathing his property in favour of the plaintiff / appellants. On the basis of the Will plaintiff / appellants sought declaration to the effect that they are owners in possession of the properties in dispute. On notice, suit was contested by the defendant / respondents, wherein it was pleaded, that prior to filing of the suit plaintiff / appellants had sought succession certificate on the basis of Will dated 6.3.1966.

The application for grant of succession certificate was dismissed by holding, that the Will was not a genuine document. The appeal as well as the revision were dismissed in this court. As the proceedings in succession certificate are of summary nature, the plaintiff / appellants took a chance by filing the present suit by claiming ownership and possession, on the basis of the said Will. It was pleaded case of the defendant / respondents, that no Will was executed by deceased Uttam Chand, therefore, the properties left by him were to be inherited by way of natural succession, by all the legal heirs. The learned Courts below on appreciation of evidence have recorded a concurrent finding of fact, that the plaintiff / appellants have failed to prove the Will, as the Will was surrounded by suspicious circumstances. The reasons for rejecting the Will dated 6.3.1966, recorded by the learned Courts below, are that Sh.

Uttam Chand, the executant of the Will, died on the next day i.e. 7.3.1966 after the execution of the Will. It is also proved on record, that prior to death Sh. Uttam Chand was unconscious R.S.A. No. 282 of 1992 3 for two days. The other suspicious circumstance noticed was, that only one of the attesting witnesses was examined. In order to prove the signatures of the witness on the Will by the plaintiff / appellants examined PW-5 Asa Nand, who was son-in-law of Fatu Ram, attesting witness. However, the Will discloses that although the attesting witness was said to be Fatu Ram but the signatures on the Will was that of Patu Ram. The witness could not explain this discrepancy while appearing in the witness box. The learned Courts below also doubted the genuineness of the Will for the reason that in the Will no reasons were given to disinherit other legal heirs, especially when the reason for execution of the Will in favour of the plaintiff / appellants also could not be proved as the reason given that the Will was executed out of love and affection for the services rendered.

This fact was proved to be wrong as the deceased was living at Jhajjar, whereas the plaintiff / appellants were residents of Delhi. In view of the evidence led and the reasons stated herein above, the learned Courts below have recorded concurrent finding of fact, that the Will was not proved and consequently dismissed the suit. The learned counsel for the appellants contends that this appeal raises the following substantial questions of law :-

Whether the judgments and decrees passed by the learned Courts below are outcome of misreading of evidence on record, is perverse?

Whether the Will, which was duly proved could not be ignored on the basis of suspicious circumstances, which were duly explained? R.S.A. No. 282 of 1992 4 In support of the substantial questions of law the learned counsel for the appellants vehemently contended, that the learned Courts below committed an error in rejecting the Will even though the requirement was only to examine only one attesting witness, who was examined and proved the due execution of the Will. It was also the contention of the learned counsel for the appellants, that no importance can be given to the findings recorded in the proceedings of issuance of succession certificate, as the proceedings therein being summary in nature, cannot be binding on the Civil Court. The Civil Court was required to adjudicate the validity of the Will by independent evidence. The learned counsel for the appellants further contended that merely because the executant of the Will died on the next day of the execution of the Will, was not a suspicious circumstance, to disregard the Will.