AB REHMAN GOJRI Vs. JABAR BHAR

JUDGEMENT

(1.) THIS is a second appeal under the Jammu and Kashmir Restitution of mortgaged Properties Act, 2006 (Act No. XVII of 2006) by the mortgagee. The case has a chequered career but only the lollowing facts need be mentioned for the disposal of this appeal. Mst Bibi widow of Habib Sheikh mortgage 39 kanals 14 marlas of land by means of a loiortgaged deed dated 10 -8 -2002 registered on 11 -8 -2002 in favour of Mohamrnad Gojri for a fconsideration of Rs. 3,000. When the restitution of mortgaged properties Act came into force one Gaffar Sheikh who was related to Mst. Bibi put in Jan application for the restitution of this mortgage. This application was granted by the Sub judge Baramulla by his order dated 20 -9 -2009. An appeal was preferred before the District Judge Srinagar, by his order dated 21 -9 -2010 held that Gaffar bad no locus stand but directed Mst. Fazi and Jabbar should be brought on record and they, as applicants, could continue the application for restitution of the property. After the remand of the case by the District Judge, Srinagar, the present respondents were permitted to continue the restitution application and they put in an application dated 15 -10 -2010. This application was sought to be pressed by the respondents claiming to be the heirs of Mst. Bibi. The Sub Judge after recording the evidence of the parties dismissed the petition holding that the respondents had no locus stand to "continue the application, by his order dated 21st Maghar 2011. An appeal was preferred before the District Judge, Srinagar against this order of the Subordinate Judge, Baramulla. The District Judge, vide his order dated 1st June 1965 allowed the respondents to produce the will alleged to have been executed by Mst, Bibi in favour bf Mst. Fazi and Jabbar on 10th of Magh 1997, on payment of costs, which costs were paid by the respondents and accepted by the other side. The case was remanded to the trial court. Later on the Sub Judge again enquired into the case and by means of his order dated 30th April 1964 passed a decree in favour of the respondents for restitution of the mortgaged property. Against that order an appeal was preferred before the District Judge, Baramulla, who dismissed the appeal by means of his order dated 17 -9 -1965. Against that order the present appeal has been preferred by the appellants.

(2.) LALA Sunder Lal, the learned counsel for the appellants has argued the case at great length. It may be remarked at the outset that all the courts below have found that the mortgagee or hissucces -sor -in -interst has obtained more than the principal amount advanced by the mortgagee plus 50% by way of benefits from this land. Therefore, on that point there is no dispute. The main dispute in this appeal centres round the will and the locus -standi of the present respondent to continue the ristitution proceedings. About the will Lala Sunder Lal addressed a very long argument. His case is, that the two courts had erred in holding the will proved He referred me to an authority reported as AIR 1959 SO 443 wherein certain tests have been laid down about the proof of a will. Their Lordships have laid in this authority that : - "There is one important feature which distinguishes will from other documents. Unlike other documents the will speaks from the death of the testator and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not ; and this aspect naturally introduces an element of sole -mity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the courts will start on the same enquiry as in the case of proof or documents. The pro -pounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state1 of the testators mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words the onus on the pro -pounder can be taken to be discharged on proof of essential facts just indicated."

(3.) FURTHER on their Lordships state that the of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and the deuce in support of the propounders case that Signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature ; the condition of the testators mind may appear to be feeble and debilitated the dispositions made in the will may appear to be unnatural, improbable or unfair in the light be relevant circumstances, or there may be other circumstances which may make the will suspicious. Their Lordships further remarked that: - "On the proof of the signature of the deceased or his acknowledgment that he has signed the will, he will be presumed to have known the provisions of the instrument he has signed but the said presumption is liable to be rebutted by proof suspicious circumstances."