BALBIR SINGH Vs. KAUSHALAYA DEVI

JUDGEMENT

(1.) The above second appeal has been filed by the plaintiff in Civil Suit No. 158/1 of 1984 on the file of the learned Senior Sub Judge, Hamirpur, who lost before both the Courts below against the judgment and decree passed by the learned District Judge, Hamirpur dated 5.10.1993 in Civil Appeal No. 138 of 1987, where under the learned First Appellate Judge has confirmed the judgment and decree passed by the learned trial Judge dismissing the suit filed by the plaintiff/appellant for a declaration that the plaintiff is the owner to the extent claimed of the suit mentioned property. The plaintiff who is no more and whose son pursues the second appeal is the mother of the Babu Ram, who died on 9.11.1983. Indisputably, he left behind his mother Smt. Sahni Devi and his wife Smt. Kaushalaya Devi. The fact that the defendant Kaushalaya Devi is the wife of Babu Ram is also not a disputed fact. It appears that after the death of Babu Ram, the revenue authorities on their own have attested the mutation of the revenue records in the name of both the mother Sahni Devi and the wife of the deceased Kaushalaya Devi, in respect of the suit properties. It is thereafter that the mother came to file the suit claiming exclusively the right of succession to the properties left behind by late Babu Ram on the basis of a Will said to have been executed by late Babu Ram on 20.10.1983. The Will also was said to have been executed 20 days before the actual death of Babu Ram. The parties have gone into trial with reference to the rights claimed in the teeth of the Will projected for and on behalf of the plaintiff. The learned Trial Judge has chosen to analyse the suspicious circumstances surrounding the execution of the alleged Will, in paragraph 10 of his judgment to come to the conclusion that the Will has not been properly proved to have been duly executed and the same is vitiated on account of suspicious circumstances indicated therein.

(2.) Aggrieved, the plaintiff pursued the matter on appeal before the District Court and the learned District Judge, as indicated earlier, concurred with the findings recorded by the learned trial Judge and dismissed the appeal. Hence, the above second appeal.

(3.) Mr. Bhupender Gupta, learned Senior Counsel for the appellant while elaborating the substantial questions of law formulated at the time of admission of the appeal contended that the mere absence of mention or non -mention of actual legal heir in the Will could not make it per -se a suspicious circumstance and merely because the Will has been made bequeathing the entirety of the property of the deceased in favour of the mother in preference to the wife, the same cannot be said to constitute such a suspicious circumstances as to treat the Will to be unnatural and not genuine and that, therefore, the judgments of the Courts below are unsustainable in law. The further submission of the learned Senior Counsel for the appellant is that the principle laid down in a decision reported in Milkhi Ram and others v. Smt. Surmoo Devi, 1993(1) Sim. L.C. 118 that dis -inheritance of the sole legal representative and close relatives constitute a suspicious circumstances relating to the execution of a Will, cannot be said to be the correct position of law and the same required to be re - considered. Per contra, Mr. J.R. Thakur, learned counsel for the respondent -defendant while adopting the reasoning of the Courts below contended that the factual findings recorded, relating to the validity of the Will and the suspicious circumstances surrounding the execution of the same, concurrently, were based on appropriate materials and proper appreciation of the same and they do not call for any interference in this proceeding in support of the respective stand taken by the learned counsel appearing on either side, the relevant portions of the judgments have been read, besides inviting my attention by the learned Senior Counsel for the appellant, to the decisions reported in Rabindra Nath Mukherjee and another v. Panchanan Banerjee (dead) by L.Rs. and others, (1995) 4 S.C.C. 459 : AIR 1995 S.C. 1684 and Shakuntala Devi v. Savitri Devi and others, AIR 1997 H.P. 43.