IN THE COURT OF RAJNEESH KUMAR

ADDITIONAL DISTRICT JUDGE, KARNAL

UID NO. HR-0683

CIS No. : CA 1151 of 2013

CNR No. : HRKR01-000832-2011

Date of Institution : 12.11.2011

Date of Decision : 18.1.2024

Nitin son of Dr. Manohar Lal son of Asa Nand, resident of H.No.82, Patel
Nagar, Panipat, District Panipat.

…......Appellant.
Versus

1. Dr. Manohar Lal son of Sh. Asa Nand, resident of 362/3, Indra Bazaar,
Panipat.
2. Shri Tarun son of Dr. Manohar son of Asa Nand, resident of H.No.83,
Patel Nagar, Panipat.
3. Shri Bhandev Jetly son of Sh. Ambika Dutt.
4. Chander Bhushan son of Sh. Ambika Dutt deceased through his LRs:-
(i) Rajender Sharma son of Chander Bhushan resident of F-25 Naka
Madar Gandhi Nagar, Ajmer Rajasthan.
5. Bishamber Jetly son of Sh. Ambika Dutt, deceased through LRs:-
(i) Sunil son of Bishambhar Jetly son of Ambika Dutt
(ii) Rakesh son of Bishambhar Jetly son of Ambika Dutt
Both residents of H.No.373/6 Jacob Pura Gurgaon, Haryana.
6. Om Parkash son of Sh. Ambika Dutt, resident of H.No.493/11, Old
Railway Road, Gurgaon
7. Smt. Punya Kirti d/o Sh. Ambik Dutt,
8. Ms. Pushplata D/o Sh. Ambika Dutt, residents of 493/11 Old Railway
Road, Karnal.

Rajneesh Kumar
Addl. District Judge,
Karnal. 18.1.2024
 -2- Nitin Vs. Dr. Manohar Lal etc
CIS No.1151 of 2013

9. Suresh Kumar son of Lajwanti D/o Sh. Ladha Ram,

10. Vinod Kumar son of Lajwanti D/o Sh. Ladha Ram,
11. Shiv Kumar son of Lajwanti D/o Sh. Ladha Ram,
12. Vijay Kumar son of Lajwanti D/o Sh. Ladha Ram,
13. Sudershana D/o Smt. Lajwanti D/o Sh. Ladha Ram,
14. Garangi, D/o Smt. Lajwanti D/o Sh. Ladha Ram,
15. Apla D/o Smt. Lajwanti D/o Sh. Ladha Ram, all residents of village
Faridpur, Tehsil Gharaunda, District Karnal.

......Respondents.

Appeal against the judgment and decree dated

12.10.2011.

Argued by : Shri Arun Kumar Dhamija, counsel for the appellant.

Respondents no.1 and 2 are proceeded ex-parte
v.o.d.19.05.2023.
Respondents no.3 to 13 are proceeded ex-parte
v.o.d.4.12.2023.

JUDGMENT

The instant appeal has been filed against the judgment and

decree dated 12.10.2011 passed by the Court of Shri Puneet Sehgal, the

then, learned Civil Judge, (Junior Division), Karnal, whereby the learned

trial court dismissed the suit of the plaintiff.

FACTS:-

2. The brief facts of this case as per appellant/ plaintiff”s

submission in the plaint, are that Smt. Ram Pyari was owner of the suit

property, detailed in para no.2 of the plaint and she had executed a

General Power of Attorney in favour of respondent/defendant no.1 and

subsequently Ram Pyari died on17.09.1995. After the death of Ram Pyari,

said GPA had elapsed and by virtue of "Will", appellant/plaintiff became

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Addl. District Judge,
Karnal. 18.1.2024
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CIS No.1151 of 2013

owner of the suit property. The appellant/plaintiff has impugned three sale

deeds no.1125 dated 20.12.1996, sale deed no.1439/1 dated 10.1.1997 and

sale deed no.1220 dated 9.11.1998 executed by respondent/defendant no.1

and also impugned the mutation sanctioned subsequently on the basis of

these sale deeds. Further pleaded that Ram Pyari died prior to the

execution of sale deeds and the right of ownership vested in favour of the

appellant/ plaintiff on the basis of "Will". The act of respondent/defendant

no.1 in executing the sale deeds is illegal and liable to be set aside. The

respondent/defendant no.1 disclosed that on 12.10.1994, Smt. Ram Pyari

had executed a "Will" in favour of the appellant/plaintiff and the same

was left in possession of respondent/defendant no.1. Initially the property

vested in the name of Banso Devi and after her death, the property

devolved upon Smt. Ram Pyari and Smt Lajwanti and on the basis of

some forged and unregistered "Will", mutation no.2609 was sanctioned in

her favour and AC Ist Grade vide its order dated 6.4.2011 has held that

Smt. Lajwanti has not been able to prove the unregistered "Will" and has

ordered the AC IInd Grade to sanction mutation of Smt. Lajwanti to the

extent of one share and in favour of heirs of Smt. Ram Pyari. It is further

maintained that Smt. Ram Pyari during her life time has bequeathed her

entire property including the mortgaged land measuring 14K-1M in

favour of appellant/plaintiff. As such, respondent/defendant no.2 and

respondent/defendant no.3 to 15 have no right in the suit property. Hence,

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Addl. District Judge,
Karnal. 18.1.2024
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CIS No.1151 of 2013

the present appeal.

WRITTEN STATEMENT:

3. On notice, respondents/defendants no.1 and 2 appeared,

whereas remaining respondents/defendants did not appear and they were

proceeded against ex-parte in learned lower court.

3a. The respondents/defendants no.1 and 2 filed written statement

and denied the factum of knowledge of the death of Smt. Ram Pyari and

submitted that Ram Pyari had executed a GPA in his favour qua the suit

property and in good faith, he had executed the sale deeds in favour of

appellant/plaintiff and respondent/defendant no.2. Smt. Rampyari

during her lifetime handed over an envelope to him to deliver the same to

appellant/plaintiff and he had kept the envelope in safe custody and

thereafter, handed over to the appellant/plaintiff. The

respondent/defendant no.1 has asserted the execution of power of attorney

by Smt. Ram Pyari in favour of respondent/defendant no.1 and has

maintained that appellant/plaintiff and respondent/defendant no.2 are in

possession of the purchased land as owners thereof. The validity of the

sale deeds has also been maintained. Denying the remaining averments

made in the plaint, a prayer was made for dismissal of the suit.

ISSUES:

4. Out of the pleadings of the parties, the following issues were

framed by the then learned lower court vide order dated 30.4.2007:-

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Addl. District Judge,
Karnal. 18.1.2024
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CIS No.1151 of 2013

1. Whether the plaintiff is entitled to a decree for declaration as

prayed for?OPP.

2. Relief.

EVIDENCE OF PLAINTIFF:

5. To prove his case, appellant/plaintiff has examined following

witnesses besides tendering certain documents.

PW1 Krishan Sharma, document writer

PW2 Satnam Dass, deed writer

PW3 Narinder, Lamberdar

PW4 Dharam Pal, Lamberdar

PW5 Inderjeet, Deed Writer

PW6 Nitin (plaintiff).

5a. Thereafter, learned Counsel for the plaintiff closed the evidence

on behalf of plaintiff vide his separate statement.

EVIDENCE OF DEFENDANTS:

6. On the other hand, respondents/defendants no.1 and 2 have not

led any evidence and their evidence was closed by order of the court.

REBUTTAL EVIDENCE:-

7. In rebuttal, no evidence was led by the plaintiff .

DECISION OF THE TRIAL COURT:

8. After hearing the arguments addressed by learned counsel

for the parties and after appraising the material/evidence, brought on

record, the learned trial court dismissed the suit of the appellant/plaintiff

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Addl. District Judge,
Karnal. 18.1.2024
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CIS No.1151 of 2013

as discussed herein above.

9. Feeling aggrieved the impugned judgment and decree, the

present appeal has been preferred by the appellant-plaintiff.

ARGUMENTS:-

10. Learned counsel for the appellant has argued that the findings

of the trial court is erroneous and against the facts on record and is liable

to be set aside. It is contended that the learned trial court has not rightly

read and appreciated the evidence led on the court file and has not rightly

appreciated the case law produced by the counsel for the

appellant/plaintiff and the law of the Indian Succession Act relied upon by

the court below and cited in the judgment have not been rightly

interpreted and appreciated by the court. Hence, it is prayed that the

present appeal may kindly be accepted and the judgment and decree dated

12.10.2011 passed by the learned trial court may kindly be set aside.

11. Learned counsel for the respondent has argued that the learned

lower court has rightly appreciated the facts by dismissing the suit. Hence,

it is prayed that the appeal of the appellant may kindly be dismissed.

FINDINGS:-

12. I have heard the submissions made by the learned counsels for

appellant and respondents and gone through the records of the case

carefully.

13. The present appeal has been filed against the judgment and

Rajneesh Kumar
Addl. District Judge,
Karnal. 18.1.2024
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CIS No.1151 of 2013

decree dated 12.10.2011 passed by the Court of Shri Puneet Sehgal the

then learned Civil Judge (Junior Division), Karnal and its first appeal was

dismissed by the Court of Sh. Bhupinder Nath the then learned Additional

District Judge, Karnal vide judgment and decree dated 3.3.2014.

Aggrieved by the same, the appellant/plaintiff filed an RSA in the Hon’ble

Punjab and Haryana High Court which was allowed by the Hon’ble

Punjab and Haryana High Court vide judgment dated 30.3.2023 and the

judgment passed by learned court of Sh. Bhupinder Nath the then learned

Additional District Judge, Karnal dated 3.3.2014 was set aside and case

was remanded back for deciding the appeal afresh after deciding the

pending application under Order 41 Rule 27 CPC.

14. Appellant/plaintiff had filed a suit in the court of learned

Judicial Magistrate Sh. Puneet Sehgal submitting that suit property vested

in the ownership of Rampyari @ Dhramvanti and Rampyari had executed

a general power of attorney in favour of defendant no.1 before her death

on 17.09.1995. After her death, the general power of attorney had lapsed

and by operation of the will, plaintiff had become owner of the suit

property. Hence the three sale deeds which were executed by defendant

no.1 became null and void as the sale deeds was based on general power

of attorney and the general power of attorney lapsed with the death of

Rampyari @ Dhramvanti.

15. Now, the suit of the plaintiff was dismissed by the

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Addl. District Judge,
Karnal. 18.1.2024
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CIS No.1151 of 2013

Court of Sh. Puneet Sehgal the then learned Civil Judge (Junior Division),

Karnal vide order dated 12.10.2011, firstly on the ground that death

certificate of Rampyari is not legible and the death of Rampyari is not

proved hence the question of lapse of general power of attorney does not

arise. To remove this suspicion over the death of Rampyari @

Dhramvanti, appellant/plaintiff have placed on record the death certificate

of Rampyari @ Dhramvanti which has been procured from Municipal

confirmation, Gurgaon. So far the issue of death of Rampyari is

concerned, it has now been proved by the death certificate placed on

record that Rampyari died on 17.9.1995 i.e. prior to the three sale deeds in

question. Hence, it would be safe to conclude that the general power of

attorney executed in favour of Manohar Lal stood lapsed with the death of

the executer of the general power of attorney i.e. Rampyari @

Dhramvanti.

16. The next important issue for deciding the appeal is the

genuineness of the will. I am guided by the principles propounded by

Hon’ble Supreme Court in Meena Pradhan & Ors Vs. Kamla

Pradhan & Anr (Civil Appeal No.3351 of 2014) which are as

follows:-

10. Relying on H. Venkatachala Iyengar v. B.N.

Thimmajamma, 1959 Supp (1) SCR 426 (3−Judge Bench), Bhagwan

Kaur v. Kartar Kaur, (1994) 5 SCC 135 (3−Judge Bench), Janki

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Addl. District Judge,
Karnal. 18.1.2024
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Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC

91(2−Judge Bench) Yumnam Ongbi Tampha Ibema Devi v. Yumnam

Joykumar Singh, (2009) 4 SCC 780 (3−Judge Bench) and

Shivakumar v. Sharanabasappa, (2021) 11 SCC 277 (3−Judge

Bench), we can deduce/infer the following principles required for proving

the validity and execution of the Will:

i. The court has to consider two aspects: firstly, that the Will is

executed by the testator, and secondly, that it was the last Will executed by

him;

ii. It is not required to be proved with mathematical accuracy,

but the test of satisfaction of the prudent mind has to be applied.

iii. A Will is required to fulfil all the formalities required under

Section 63 of the Succession Act, that is to say:

(a) The testator shall sign or affix his mark to the Will or it shall

be signed by some other person in his presence and by his direction and

the said signature or affixation shall show that it was intended to give

effect to the writing as a Will;

(b) It is mandatory to get it attested by two or more witnesses,

though no particular form of attestation is necessary;

(c) Each of the attesting witnesses must have seen the testator

sign or affix his mark to the Will or has seen some other person sign the

Will, in the presence and by the direction of the testator, or has received

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Addl. District Judge,
Karnal. 18.1.2024
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from the testator a personal acknowledgment of such signatures;

(d) Each of the attesting witnesses shall sign the Will in the

presence of the testator, however, the presence of all witnesses at the same

time is not required;

iv. For the purpose of proving the execution of the Will, at least

one of the attesting witnesses, who is alive, subject to the process of court,

and capable of giving evidence, shall be examined;

v. The attesting witness should speak not only about the

testator’s signatures but also that each of the witnesses had signed the will

in the presence of the testator;

vi. If one attesting witness can prove the execution of the Will,

the examination of other attesting witnesses can be dispensed with;

vii. Where one attesting witness examined to prove the Will

fails to prove its due execution, then the other available attesting witness

has to be called to supplement his evidence;

viii. Whenever there exists any suspicion as to the execution of

the Will, it is the responsibility of the propounder to remove all legitimate

suspicions before it can be accepted as the testator's last Will. In such

cases, the initial onus on the propounder becomes heavier.

ix. The test of judicial conscience has been evolved for dealing

with those cases where the execution of the Will is surrounded by

suspicious circumstances. It requires to consider factors such as awareness

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Addl. District Judge,
Karnal. 18.1.2024
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of the testator as to the content as well as the consequences, nature and

effect of the dispositions in the Will; sound, certain and disposing state of

mind and memory of the testator at the time of execution; testator

executed the Will while acting on his own free Will;

x. One who alleges fraud, fabrication, undue influence et cetera

has to prove the same. However, even in the absence of such allegations,

if there are circumstances giving rise to doubt, then it becomes the duty of

the propounder to dispel such suspicious circumstances by giving a cogent

and convincing explanation.

xi. Suspicious circumstances must be ‘real, germane and valid’

and not merely ‘the fantasy of the doubting mind’ 1. Whether a particular

feature would qualify as ‘suspicious’ would depend on the facts and

circumstances of each case. Any circumstance raising suspicion legitimate

in nature would qualify as a suspicious circumstance for example, a shaky

signature, a feeble mind, an unfair and unjust disposition of property, the

propounder himself taking a leading part in the making of the Will under

which he receives a substantial benefit, etc.

11. In short, apart from statutory compliance, broadly it has to

be proved that (a) the testator signed the Will out of his own free Will,

(b) at the time of execution he had a sound state of mind, (c) he

was aware of the nature and effect thereof and (d) the Will was not

executed under any suspicious circumstances.

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Addl. District Judge,
Karnal. 18.1.2024
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17. The appellant/plaintiff got examined Satnam Dass PW2 who

was the deed writer and he had scribed the will no.130 dated 13.10.1994.

He deposed that after scribing the will, the same was read over to

Rampyari who appended her signatures after thoroughly understanding

the contents of the will.

18. Narinder lambardar PW3 proved the signatures of his father

over the will as his father Hari Chand had died.

19. PW4 Dharam Pal lambardar corroborated and deposed that the

will was executed by Rampyari in the favour of her nephew.

All the above testimonies are helpful in proving the necessary ingredients

essential in proving the genuineness of a will.

20. The will in the instant case has been shown to be scribed by

Satnam daas, the deed writer on 13.10.1994. After the same was read over

to Rampyari who after having understood the contents of the will

appended her thumb impressions and then the witnesses signed the will.

The signatures of Hari Chand on the will have been proved by Narinder

lambardar who was the son of Hari Chand as Hari Chand had died.

Dharam Pal lambardar also deposed on similar lines corroborating the

execution of will by Rampyari.

21. Hence, the statutory compliances under Section 63 of the

Succession Act have been complied with. Additionally the court also

needs to examine if there are any suspicions circumstances surrounding

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Addl. District Judge,
Karnal. 18.1.2024
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CIS No.1151 of 2013

the will which make the will invalid.

22. In the instant case, there are few unexplained circumstances

which put a question mark on the validity of will in favour of Nitin, the

plaintiff of present suit.

These are as follows:-

1. First and foremost is the exclusion of the legal heirs of

Rampyari and there is no explanation regarding the same in the will.

Moreover the mentioned legal heirs are arrayed as defendants no.3 to 8

but they have not come on record and have been proceeded ex-parte. It

is a peculiar case where the defendants by staying absent and not

raising any objections against the will, have indirectly supported the

case of the plaintiffs. And the remaining parties in the case i.e. the

Appellant/Plaintiff and the Respondents/defendants are son and father

interse.

2. Secondly there is no explanation regarding the fact that

Rampyari on one hand executed a will in favour of Nitin by excluding

her legal heirs and simultaneously issued a general power of attorney

(GPA) in favour of Dr. Manohar Lal basis which the impugned sale

deeds no.1125 dated 20.12.1996, sale deed no.1439/1 dated 10.1.1997

and sale deed no.1220 dated 9.11.1998 were effected. Hence, both the

above documents were issued in favour of one family only.

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Addl. District Judge,
Karnal. 18.1.2024
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CIS No.1151 of 2013

3. Thirdly Rampyari executed two contradictory documents on

same day and the intriguing/mysterious fact is that in both the

documents, the legal heirs have not been given any share or interest

and the GPA and the will have been issued in favour of Father

(Dr.Manohar lal) and Son (Nitin) respectively.

4. Fourthly it is surprising that the sale deeds were executed on

the basis of general power of attorney (GPA) and the power attorney

holders have feigned ignorance regarding the death of Rampyari. They

did not come to know regarding the death of Rampyari although

Rampyari on the strength of her relation with Dr. Manohar Lal chose to

issue a power of attorney in his favour and a right to deal with her

properties. Moreover the sale deeds were effected in December 1996

i.e. after the death of Rampyari and the respondent/defendant Dr.

Manohar Lal without verifying the status of Rampyari has sold the land

in question on the basis of GPA by suffering a statement that Rampyari

is alive and the GPA is valid.

5. Lastly the Hon’ble Punjab and Haryana High Court

remanded the case back with directions to decide the appeal afresh

after deciding the application for submitting additional evidence under

Order 41 Rule 27 of Civil Procedure Code. Whereas the respondents in

the appeal did not raise any objection on application for additional

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Addl. District Judge,
Karnal. 18.1.2024
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evidence and the appellant tendered few documents including the death

certificate of Rampyari on 13.12.2023. This leads to drawing of

inference that the appellants removed the anomaly i.e. non proving of

the death of Rampyari which was one reason that suit of

appellant/plaintiff failed in the learned lower court.

23. Hence there are suspicious circumstances regarding the

execution of the will where the legal heirs have been excluded in the

willl without any cogent reason/explanation and the legal heirs have

not joined the proceedings in both the trial court and the appellate

court. Moreover the GPA and the Will have been executed in favour of

father and son respectively who have contest the suit/appeal on friendly

terms indicating collusion. Thus, it is held that all the necessary

ingredients required to prove the execution of the will have not been

proved by the Appellant/Plaintiff. Also, the learned lower court has not

erred by dismissing the suit of appellant/plaintiff and therefore the

findings of the lower court are hereby upheld. As a sequel to the above

discussion, the present appeal against the judgment and decree dated

12.10.2011 passed by the Court of Shri Puneet Sehgal, the then,

learned Civil Judge, (Junior Division), Karnal is hereby dismissed and

the judgment and decree passed by the learned lower court is upheld.

Decree sheet be prepared accordingly. Lower court record along with

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Addl. District Judge,
Karnal. 18.1.2024
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the copy of judgment be sent back to concerned court. File be

consigned to records after due compliance.

Pronounced in open Court. Rajneesh Kumar

18.1.2024. Additional District Judge,
Karnal (UID No.HR-0683).

All pages signed.

Rajneesh Kumar
Addl. District Judge,
Karnal, 18.1.2024
Typed by:
Vijay
Stenographer-II

Rajneesh Kumar
Addl. District Judge,
Karnal. 18.1.2024
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CIS No.1151 of 2013

CNR No.HRKR01-000832-2011 CA (CIS) No.1151 of 2013

Present : Shri Arun Kumar Dhamija, counsel for the appellant.

Respondents no.1 and 2 are proceeded ex-parte v.o.d.19.05.2023.
Respondents no.3 to 13 are proceeded ex-parte
v.o.d.4.12.2023.

Remaining arguments heard. Judgment pronounced.

Vide separate judgment of even date, the present appeal

against the judgment and decree dated 12.10.2011 passed by the Court

of Shri Puneet Sehgal, the then, learned Civil Judge, (Junior Division),

Karnal is hereby dismissed and the judgment and decree passed by the

learned lower court is upheld. Decree sheet be prepared accordingly.

Lower court record along with the copy of judgment be sent back to

concerned court. File be consigned to records after due compliance.

Announced in open Court. (Rajneesh Kumar)

Dated : 18.1.2024 Additional District Judge,
Karnal (UID No.HR/0683)
Typed by:
Vijay
Stenographer Gr.II

Rajneesh Kumar
Addl. District Judge,
Karnal. 18.1.2024