Mangat Ram and ors. Vs. Dina Nath S/O Des Raj - Court Judgment

Excerpt:
- swatanter kumar, j.1. this regular second appeal was admitted vide order dated 7.8.1980 by shri a.s. bains, j., an application under order 39 rules 1 and 2 c.p.c. seeking temporary injunction against the respondents in the appeal from alienating the land and from removing or cutting the trees on the land during the pendency of the appeal was filed on 1.7.1996. vide order dated 4.7.1996 notice of that application was issued for 6.9.1996. counsels appearing for respective parties had submitted that they would have to refer to the merits of the appeal for arguing this appeal and consequently upon their agreement this appeal was fixed for hearing on 7.9.1996 on which date the appeal itself was heard on merits.2. before i proceed to discuss respective contentions of the parties it may be appropriate to refer to the necessary facts giving rise to this appeal. one shri gauri shankar resident of village marara died issueless and intestate. one balo ram had filed suit for possession of land measuring about 20 kanals 16 marlas and one house, more clearly defined in the heading of the plaint, situated at village, marara, district gurdaspur. after the death of balo ram the present appellants were brought on record during the pendency of the suit. this land admittedly belong to gauri shankar who died on 6.12.1975 and balo ram had claimed as his heir being his real brother.3. the defendant in the suit had produced, as per the plaintiffs, a forged will dated 26.8.1969 and got a mutation recorded on the basis of the said will being mutation no. 146 dated 1.2.1974. challenging these two documents the plaintiffs hai claimed possession. according to dina nath, the defendant, he was the sole heir of gauri shanker as per the will and even if the will was ignored balo ram was the sole heir as there were other brothers and sisters in law of late gauri shanker. it was pleaded by the defendants that both the will and mutation were proper and were not liable to be set aside and plaintiffs were not entitled to the relief.4. four issues were framed by the trial court and all the issues were decided against the plaintiffs and in favour of the defendant. the first appellate court in appeal confirmed the judgment and decree of the trial court on all the issues and dismissed the appeal of the plaintiffs resulting in the filing of the present second appeal.5. on the afore-stated facts the basic contention of the learned counsel for the appellants is that keeping in view the provisions of section 70 of the indian succession act their defence that the will had been torn by the deceased would vitiate the stand of the defendant and the plaintiffs were entitled to the decree prayed for. this contention of the learned counsel for the appellants primarily ignores two facts that both the courts below have disbelieved the case of the plaintiffs in its entirely upon proper appreciation of evidence produced before the trial court. secondly a specific stand was taken by the defendants that balo ram was present at the time of death of gauri shanker in village and he had removed the articles including the will from the house. this stand of the defendant which is primarily a matter of fact to be proved by cogent evidence has been believed by both the courts below. the learned counsel for the appellants has failed to point out any perversity or errcr of law which could call for interference by this court within the limited scope of section 100 of the code of civil procedure.6. in a very recent judgment in the case of ramanuja naidu v. v. kanniah naidu and anr., jt 1996(3) s.c. 164, while commenting upon the jurisdietion exercisable by the court in second appeal and while finding jurisdictional error in setting aside concurrent finding of facts by the high court, the hon'ble supreme court held as under :-'we are of the view, that in interfering with the concurrent findings of facts of the lower courts, the learned single judge of the high court acted in excess of the jurisdiction vested in him under section 100 of civil procedure code. the learned judge totally erred in his approach to the entire question, and in reappraising and reappreciating the entire evidence, and in considering the probabilities of the case, to hold that the judgments of the courts below are 'perverse' and that the plaintiff is entitled to the declaration of title to suit property and recovery of possession.xx xx xx xxthe learned single judge on reappreciating the evidence took the view that it was 'not probable' that the document ex.b-1 'would have' been executed on 5.6.1967 in view of the delay in the registration of the document. in second appeal, the learned single judge of the high court totally erred in making such an approach.'7. it was an established case before the court below that the will dated 26.8.1969 was a registered will. the defendant produced sufficient oral as well as documentary evidence including dw-3 the scribe of the will who had proved the valid execution and as well as concerned witness dw-2 the office kanungo. in addition to this the defendant also took the care of proving the thumb impression of the deceased by examining dw-12 from the punjab finger print bureau. the essential factors for execution of a proper will were proved before the courts below and i find no error in the judgments of the court below.8. the other contention of the learned counsel for the appellants that just because some first class heirs were ignored in the will would not make the will invalid. a validity executed will which is proved by proper evidence before the court cannot be ignored merely on this basis. the courts are required to apply greater caution while examining such a will but it cannot be said as a principle of law that every will which is a valid and properly executed and proved before the court cannot be given effect to merely for the reasons that it ignores some of the heirs of the deceased.9. in the present case plaintiff balo ram is not the son nor are the present appellants his children. they infact themselves ignored the other first class heirs and did not implead them intentionally as party to the suit in spite of the fact that an objection was taken by the defendants in the written statement and a specific issue was framed in this regard. dina nath deposed that gauri shanker was staying with him and he was looking after him. further more after the execution of the will and death of gauri shanker, he had even taken possession of the house to the knowledge of all concerned. the attesting witnesses who are officials in the police department were also examined.10. the mere fact that the plaintiffs in the suit have been ignored in the will in the facts and circumstances of the case cannot be treated as a factor which would invalidate the will in its entirely. there are no attendant circumstances which can be formed as a valid basis for the courts concerned who declined to accept the registered will. the supreme court in the case of smt. sushila devi v. pandit krishan kumar missir and ors., a.i.r. 1971 supreme court 2236, held as under :-'prima facie, the circumstance that no bequest was made to the appellant by the testator would make the will appear unnatural but if the execution of the will is satisfactorily proved, the fact that the testator had not bequeathed any property to one of his children cannot make the will invalid. if the bequest made in the court has to scrutinise the evidence in support of the execution of the will with a greater degree of care than usual, because every person must be presumed to act in accordance with the normal human behaviours but there is no gainsaying the fact that some individuals do behave in an abnormal manner.'11. in the above facts and circumstances of the case, i see no reason to interfere with the concurrent finding of facts given by the courts below in this second appeal. consequently, this appeal is dismissed without any orders as to costs.