Topic: Daulat Ram and other vs. Sodha and others

Daulat Ram and other vs. Sodha and others
Case No.: Appeal (Civil) 5032 Of 2002 - Bench: Ashok Bhan & S.H. Kapadia - Date of Judgment: 16/11/2004

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