Harish Chander v. Subash Chander & Ors.

CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** **** Present: Mr.Pankaj Sharma, Advocate for the appellant. RAKESH KUMAR JAIN J. **** This appeal is preferred by defendant No.3 alone challenging the judgment and decree of both the Courts below whereby, suit of the plaintiff for declaration has been decreed to the effect that plaintiff and defendants No.1 to 3 have jointly owned and possessed the property in dispute. The relief of permanent injunction to restrain defendants No.4 to 9 from making payment of rent to defendants No.2 and 3 was declined on the ground that the question as to whether there exists a relationship between defendants No.1 to 3 and defendants No.4 to 9 of a landlord and tenant could only be decided by the Rent Controller and not by the Civil Court. However, liberty was granted to the plaintiff for claiming himself to be the landlord of defendants No.4 to 9 by approaching the Rent Controller and getting his rights and liabilities decided. RSA No.173 of 2010 - 2 - Briefly, pleaded case is that Gela Ram son of Bura Ram was the original owner of the property in dispute who bequeathed it to his wife Sheela Wanti by way of a Will dated 31.12.1990 who became the exclusive owner after the death of Gela Ram. Sheela Wanti was the mother of the plaintiff and defendants No.1 to 3, 10 and 11, who further executed a Will dated 20.1.2001. The plaintiff claims that she executed her last Will in favour of the plaintiff and defendants No.1 to 3 on 20.1.2001 whereas defendants No.2 and 3 claims that she executed her last Will on 4.10.2000 in their favour and the Will set up by the plaintiff dated 20.1.2001 is forged. Besides this declaration, the plaintiff also prayed for injunction in order to restrain defendants No.4 to 9, who are the tenants in the property in dispute from paying rent to defendants No.1 to 3. Defendants appeared and filed their separate written statements. Defendant No.1 filed his written statement. Defendants No.2 and 3 filed joint written statement, defendants No.4 and 5 filed a separate written statement and defendants No.10 and 11 also filed joint written statement. Basically, the defendants have claimed that Will dated 20.1.2001 is forged whereas Will dated 4.10.2000 is the last Will of the testator. Plaintiff filed replication denying the averments of the written statement and reiterated the averments made in the plaint. On the pleadings of the parties, following issues were framed: “1. Whether plaintiff is entitled to the declaration prayed for? OPP

2. Whether Sheela Wanti executed a legal and valid Will dated 20.1.2001 in favour of plaintiff and defendants No.2 and 3? OPP RSA No.173 of 2010 - 3 -

3. Whether Sheela Wanti executed a legal and valid Will dated 4.10.2000 in favour of Ashok Kumar and Harish Chander? OPD

4. Whether Will dated 20.1.2001 is forged and fabricated document? OPD

5. Whether Will dated 4.10.2000 is forged and fabricated document? OPD

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

7. Whether suit is barred under order 2 rule 2 CPC? OPD

8. Relief.” In order to prove his case, plaintiff appeared as PW-1 and produced original Will dated 20.1.2001. In order to prove due execution of the Will, he examined marginal witness PW Mohinder Singh. On the contrary, defendant Harish Chander appeared as DW-1 and produced original Will dated 4.10.2000 and examined Sunil Kumar marginal witness of the Will dated 4.10.2000 as DW and examined his sister Raj Rani as DW-4. Besides this, defendant led other documentary evidence. The learned trial Court discussed issues No.1 to 3, 4 and 5 together and found that the Will (Ex.P-1) has been duly executed by the Testator. Only defendant No.3 filed the first appeal which has also been dismissed by the learned First Appellate Court. Still aggrieved, defendant No.3 has come up in second appeal. Learned counsel for the appellant has vehemently argued that the attesting witness of the Will (Ex.P-1) was not present when the Will was scribed, therefore, his evidence cannot be relied upon. It is now well settled that the attesting witness has to attest the signature of the person, who has signed the Will in his presence and is RSA No.173 of 2010 - 4 - not concerned with the contents thereof. However, the attesting witness PW-2 has stated that Will was read over to the Testator, who after admitting it to be correct put her signatures in his presence. Moreover, there is nothing on record to indicate that the Testator was suffering from any mental or physical disorder at the time of execution of the Will (Ex.P-1). Therefore, as a person of sound disposing mind, she had executed the Will and the mere fact is that she had died after 2-3 months of execution of the disputed Will, does not render the Will suspicious. It is also submitted by learned counsel for the appellant that Will has been proved only through one attesting witness. In this regard, the learned Court below has relied upon a decision of the Apex Court 2003(1) Apex Court Judgment 186 wherein, it has been observed that though the Will is required to be attested by two witnesses but it can be proved by examining one of the attesting witnesses. It is next argued that DW-4 Raj Rani, sister of the plaintiff, had stated that the testator was residing at her house before her death and had given her the Will dated 4.10.2000. It is submitted that if this statement is taken to its logical end then it would mean that there is no Will dated 20.1.2001. It is also submitted that in the Will Ex.P-1, there is no reference by the testator of the cancellation of the earlier Will dated 4.10.2000. Therefore, it is a suspicious circumstance. In my view, the testator wanted to give the property to all the four sons as it is mentioned in the Will Ex.P-1 that it was the wish of her late husband who had bequeath the property in dispute in her RSA No.173 of 2010 - 5 - favour on 31.12.1990 so that after his death the property should be inherited by all the four sons. The learned Court below has relied upon a decision of the Karnataka High Court reported as 1992 (2) Civil Court Cases 313 in which, it was held that testatrix had two daughters and one son. In the first Will, she ignored two of them by bequeathing property to one daughter but in the subsequent Will she bequeathed the property to all of them to be shared equally, which was held to be a genuine change of mind to do justice to all her children. No other arguments have been raised. In view of the findings of fact recorded by both the Courts below, I do not find any merit in the present appeal because no substantial question of law is involved and as such the same is hereby dismissed without any order as to costs. January 28, 2010 Vivek (RAKESH KUMAR JAIN) JUDGE