(Aniruddha Bose and Sanjay Kumar, JJ.)
Gitika Puri and Others _____________________________ Appellant(s);
v.
Suman Chopra and Others ________________________ Respondent(s).
Civil Appeal No. 9113/2018, decided on January 11, 2024
The Judgement of the court was delivered by
Judgment
The present appeal arises out of a suit for partition instituted by respondent No. 1, Suman Chopra in respect of the estate of her deceased father-Roshan Lal Puri. The admitted position is that Roshan Lal Puri passed away on 8th June, 1997, leaving behind his three daughters i.e. Suman Chopra, Sangita Talwar and Gitika Puri [the plaintiff, defendant Nos. 9 and 10, respectively].
2. In the partition suit instituted before the Civil Judge, Junior Division, Joginder Nagar, District Mandi, Himachal Pradesh, the defendant No. 10, who is the first appellant before us had set up a Will executed by her deceased father to resist the suit for partition. The Will was registered on 6th September, 1996 before the concerned Tehsildar and carried the signatures of the testator [i.e. Roshan Lal Puri] and had two attesting witnesses.
3. The appellant No. 1 [being defendant No. 10 in the civil suit] had sought to prove the Will through one of the two attesting witnesses, being N.K. Mahajan [DW-2]. The appellant herself deposed as DW-1 in the suit before the trial Court. The trial Court found the Will to have been executed in terms of Section 63 of the Indian Succession Act as also Section 68 of the Indian Evidence Act, 1872. As per the said Will, since the entire estate was to be bequeathed to the appellant, the partition suit was dismissed. The First Appellate Court also affirmed this judgment.
4. The plaintiff had carried the said decision to appeal under Section 100 of the Code of Civil Procedure, 1908 (“CPC”) and was successful before the High Court. The High Court admitted the appeal formulating the following questions of law:
“6. This court vide order dated 25.05.2009, admitted the instant appeal on following substantial questions of law No. 1 and 3:—
“1. Whether the Will allegedly executed by the deceased Shri Rohan Lal Puri is not proved and liable to be ignored on the ground that the propounder of the Will had failed to examine the Advocate who had drafted the Will on the alleged instructions of the Testator of the Will and the non-examination of the Sub-Registrar before whom the Will is stated to have been presented for registration is fatal to the case of the propounder of the Will?”.
3. Whether the learned first appellate Court below has erred by ignoring the admission of the propounder that the Testator was used to be kept in the premises under lock and key during his last days and that fact itself is pointer to the fact that the Testator was not in a fit and sound state of mind at the time of the alleged execution of the Will?”
5. The main point which the High Court addressed was regarding the sound and disposing state of mind of the testator at the time of execution of the Will. The High Court found that the propounder thereof had failed to discharge the onus on this count. The High Court held:—
“32. This Court is of the view that to prove the Will, defendant was expected to lead positive evidence on record in the shape of medical records to demonstrate that at the time of execution of Will deceased Roshan Lal Puri had fully recovered from the illness and he was in disposing state of mind to execute the Will. But in the present case, defendants No. 9 and 10 only stated that at the time of execution of Will, deceased Roshan Lal was in sound state of mind as he could walk with the help of stick. But it is not understood that courts below while rejecting the claim of the plaintiff concluded that there is no medical evidence, how in same breath, courts below could accept the version put forth by the defendants that at the time of execution of Will, deceased Roshan Lal had fully recovered of illness. Hence, this Court is of the view that both the courts below have erred in concluding that onus was upon the plaintiff to prove that deceased Roshan Lal was not in sound disposing state of mind at the time of execution of Will, rather, courts should have called defendants-propounder of the Will to lead positive evidence on record to suggest that Will is free from all suspicion and same was executed by deceased Roshan Lal in sound disposing state of mind.
33. In the present case, interestingly courts below expected plaintiff to place medical record to substantiate her plea with regard to illness of deceased Roshan Lal despite the fact that illness was duly admitted by the defendants whereas version put forth by the defendants propounder of Will was accepted by the Courts below solely on their depositions made before the Courts.”
6. The High Court ultimately set aside the judgments of the two fact finding Courts on that point of law and held:—
“57. Consequently, in view of the aforesaid discussion as well as law discussed hereinabove passed by the Hon’ble Apex Court as well as High Courts, I have no hesitation to conclude that the facts and circumstances of the present case clearly suggest that Will Ex.DW2/A is forged and fictitious document surrounded by the suspicious circumstances and cannot be given effect to. The defendants-propounder of the Will have failed to dispel the notion that will is not surrounded by suspicious circumstances, rather evidence available on record suggest that the same is a result of fraud/undue influence and cannot be relied upon. To the contrary, plaintiffs have successfully proved on record that the Will Ex.DW2/A is shrouded by suspicious circumstances, which has persuaded this court to declare that Will Ex.DW2/A is null and void and cannot be given effect to being forged and fictitious document surrounded by suspicious circumstances.
58. Accordingly, the judgment and decree passed by both the Courts below are quashed and set-aside. The appeal is accordingly allowed. Needless to say that since plaintiff has been non-suited by the court below on the basis of execution of Will allegedly executed in favour of defendant No. 10 by the late Shri Roshan Lal, courts below would proceed ahead with the suit filed by the plaintiff under Section 4 of Indian Partition Act ignoring the Will as the same as been held to be null and void, without getting influenced by observations, if any, made in this judgment.”
7. There were other parties to the suit as the scope of partition was beyond that of the estate of Roshan Lal Puri and involved the estate of Babu Ram Puri, the late father of the deceased testator. In this appeal, however, arguments had been addressed only as regards the estate of Roshan Lal Puri.
8. We have already referred to the question of law which was formulated by the High Court while admitting the appeal. In order to challenge the maintainability of the appeal before the High Court, reliance was placed on a judgment of this Court in the case of Laxmidevamma v. Ranganath [(2015) 4 SCC 264], which has been referred to in the judgment under appeal. The point which was addressed by the High Court, in our opinion, formed substantial question of law to invoke Section 100 of the Code of Civil Procedure. We do not think the ratio of this judgment is applicable in the facts of this case. In this regard, the High Court has referred to another authority of this Court in Sebastiao Luis Fernandes (Dead) Through Lrs. v. K.V.P. Shastri (Dead) Through Lrs. [(2013) 15 SCC 161]. In paragraph 35 of this judgment, it has been held:—
“35. The learned counsel for the defendants relied on the judgment of this Court in Hero Vinoth (minor) v. Seshammal, wherein the principles relating to Section 100 of the CPC were summarized in para 24, which is extracted below: (SCC pp.555-56)
“24. The principles relating to Section 100 CPC relevant for this case may be summarized thus:
(I) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, if gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
(iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule, Some of the well-recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to “decision based on no evidence”, it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.”
We have to place reliance on the afore-mentioned case to hold that the High Court has framed substantial questions of law as per Section 100 of the CPC, and there is no error in the judgment of the High Court in this regard and therefore, there is no need for this Court to interfere with the same.”
9. It is an established proposition of law that in the event there are suspicious circumstances, it is for the propounder of the Will to dispel such suspicion.
10. Mr. Rajesh Srivastava, learned counsel appearing for the appellant(s) had argued that no substantial question of law was involved in the second appeal. The passage in the case of Laxmidevamma (supra) on which he has relied upon was cited before the High Court and we quote below the relevant portion of the said judgment:—
“16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that plaintiffs have established their right in ‘A’ schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for re-appreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the ‘A’ schedule property for road and that she could not have full fledged right and on that premise proceeded to hold that declaration to the plaintiffs’ right cannot be granted. In exercise of jurisdiction under Section 100 C.P.C., concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High court cannot be sustained.”
11. In Jagdish Chand Sharma v. Narain Singh Saini (Dead) Through Legal Representatives [(2015) 8 SCC 615], it has been held:—
“In this context, it was emphasized that the propounder would be required to prove by satisfactory evidence that (i) the Will was signed by the testator, (ii) he at the relevant time was in a sound and disposing state of mind, (iii) he understood the nature and effect of the dispositions, and that (iv) he put his signature to the document of his own free will. It was observed that ordinarily when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator’s mind and his signature as required by law, the court would be justified in making a finding in favour of the propounder signifying that he/she had been able to discharge his/her onus to prove the essential facts. The necessity of removal of the suspicious circumstances attendant on the execution of the Will, however, was underlined as well. That no hard and fast or inflexible rule can be laid down for the appreciation of the evidence to this effect was acknowledged.”
12. Mr. Narender Hooda, learned senior counsel appearing for the respondents has, on the other hand submitted that from the evidence disclosed, the disturbed mental state of the testator was established and in such circumstances, it was incumbent upon the propounder of the Will to bring on evidence of stable mental condition of the testator. To sustain the Will, the first appellant examined herself as the witness and one of the two attesting witnesses also deposed. But from the evidence of the attesting witness, the stable mental state of the testator has not been established. There was a document marked as Exhibit D/A, a letter addressed to the plaintiff, her husband and also to another person who appears to be their daughter collectively, shows subsistence of certain health problems of the testator. The letter, otherwise written in a cordial note, records:—
“How is weather in Mandi. Weather would be quite hot there also. How are Mother and Daddy? Daddy does not move at all, now serious problem has inculcated, it has become necessary now to stay someone at home. Now, he does not listen at all. I am unable to understand as to what to do. Mother remains ill. Lots of love to you people on behalf of Mother and Daddy. Maternal uncle ji also visits occasionally. Golu, Patlu and Nanha, Rika etc. all are fine. Lots of love to Garima from me. Say my Hello to Jeeja ji and also remaining members of family. Take care of yourself.
Rest again.”
13. In course of her examination, though the defendant No. 10 stated that her deceased father was in a sound disposition of health, contrary suggestion was given to her. That part of her deposition was contradicted by the plaintiff. In her deposition, defendant No. 10 also stated that her deceased father had to be kept under lock when she used to go out for attending her college.
14. This being the position, in our opinion, there were suspicious circumstances to indicate that the testator was not in sound disposition and no evidence is there from which we could conclusively come to a finding that he was in sound and stable mental state, while bequeathing his estate. No medical practitioner has been examined to explain the health condition of the testator.
15. In such circumstances, we do not find any reason to interfere with the judgment under appeal and the appeal is dismissed.
16. We, however, make it clear that in this judgment, we have confined our examination to testing the legality of the Will so far as the estate of Roshan Lal Puri [since deceased] is concerned and the main partition suit ought to proceed in accordance with law.
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