ISHWAR DATT Vs. SMT. LEELA DEVI

JUDGEMENT

(1.) This appeal under Sec. 100 Civil Procedure Code is directed against the decree and judgment dated 21.3.1989 passed by District Judge, Shimla whereby the appeal of the appellant-defendant Ishwar Dutt was dismissed and the decree and judgment dated 17.1.1986 passed by the sub Judge Ist Class (2), Shimla was affirmed. The Sub Judge had decreed the suit of the original plaintiff Jit Ram declaring that he had inherited one half share of the property mentioned in Para 1 of the plaint held by deceased Mathu and appellant-defendant Ishwar Datt had acquired no right, title and interest on the basis of Will Ex. DW-9/A, which is not a valid Will. Decree for permanent prohibitory injunction was also granted restraining appellant-defendant Ishwar Datt from interfering with the possession of original plaintiff Jit Ram. Jit Ram had died during the pendency of the appeal before the District Judge, and respondents, who are his wife and sons, have been brought on record as his legal representatives.

(2.) This Court has heard learned counsel for the parties and gone through the record. It is not in dispute that both the Courts below have concurrently held that Will Ex. DW-9/A propounded by the appellant-defendant Ishwar Datt, on the basis of which he claims to have inherited the property of deceased Mathu, has been found shrouded in suspicious circumstances, which have not been explained by him. According to the Courts below, one of the suspicious circumstances is that Jit Ram was real brother of Mathu, who would have inherited his property in the normal course but his name is not mentioned in Will Ex. DW-9/A, and also no reason has been given as to why he has been disinherited. Both the Courts below have concurrently found that appellant- defendant Ishwar Datt had no relation with deceased Mathu; he was not living with him and serving deceased Mathu who was 70 years old and patient of Tuberculosis and there is nothing on record to show that there were strained relations between Mathu and his brother Jit Ram, as such there was no occasion for deceased Mathu to bequeath his property in favour of the appellant-defendant Ishwar Datt.

(3.) Another suspicious circumstance, which has not been explained by appellant- defendant according to the Courts below is that the marginal witnesses of Will Ex. DW9/A were not from the village of deceased Mathu and were chance witnesses. In the statement of Amar Singh DW-9, one of the marginal witnesses, the first appellate Court has found lot of contradictions and discrepancies in respect of the time of execution of the Will and registration of the Will, which creates serious doubt about his presence at the time of execution and registration of the Will. further, he has stated that only Will Ex. D W-9/A was executed, whereas, admittedly, another document, Power of Attorney Ex. D-1, was also executed simultaneously, which bears his signatures. Besides this, in view of the fact that appellant- defendant Ishwar Datt, the propounder of the Will Ex. DW-9/A, had taken active part in the execution of the Will, serious doubt is created about its genuineness.