Case: Kala Devi Vs. Jagdish Chand

S. Abdul Nazeer, J. 1. The appellant/plaintiff is the widow of deceased Nokhu Ram. She filed a Suit bearing No.112 of 1991 for a declaration that she being the sole legal heir of the Nokhu Ram, is entitled to succeed and inherit his movable and immovable properties to the exclusion of the respondent/defendant and that the Will dated 29.10.1990 is a forged document which does not bind her in any manner. The respondent/defendant filed the written statement opposing the suit. The trial court dismissed the suit by holding that the Will executed by deceased Nokhu Ram bequeathing his property in favour of the plaintiff and the defendant in equal shares is valid. The first appeal filed by the appellant was allowed and the judgment and decree of the trial court was set aside. Feeling aggrieved, the defendant filed RSA No. 174 of 1998 in the High Court of Himachal Pradesh, Shimla. The High Court while setting aside the judgment and decree of the first appellate court, restored the judgment and decree of the trial court. The appellant has challenged the legality and correctness of the said judgment and decree in these appeals. 2. The only contention urged on behalf of the appellant is that the execution of the Will is shrouded by suspicious circumstances. Learned counsel appearing for the respondent has supported the judgment and decree of the High Court. 3. Having heard learned counsel for the parties, we are of the view that the Will executed by Nokhu Ram is not shrouded by suspicious circumstances. In fact, Nokhu Ram had expressed his desire to execute the Will to Ganga Ram, his Purohit in the presence of Sukh Ram, Tota Ram and also the plaintiff Kala Devi. Purohit was examined as DW-4. DW-4 had testified that the plaintiff Kala Devi agreed to the wish of Nokhu Ram. DW-2 Sant Ram was one of the attesting witnesses of the Will and DW-5 Jai Singh was the scribe. DW-2 and DW-5 have corroborated the statement of the defendant. J.P. Sharma, advocate, was an identifier of the testator at the time of execution of the Will. He was examined as PW-3. He has stated in his evidence that at the time of execution of the Will, Nokhu Ram was mentally and physically sound. The plaintiff was not able to establish in suspicious circumstances alleging the execution of the Will. The trial court after considering the entire materials on record has rightly come to the conclusion that the Will has been executed by Nokhu Ram of his own free Will and that he was in a sound state of mind on the date of execution of the Will. 4. We are of the view that the first appellate court was not justified in reversing the well reasoned judgment of the trial court. The High Court was, therefore, right in setting aside the judgment of the first appellate court and restoring that of the trial court. We do not find any reason to interfere with the judgment and decree of the High Court.

Decision:
0[ds]3. Having heard learned counsel for the parties, we are of the view that the Will executed by Nokhu Ram is not shrouded by suspicious circumstances. In fact, Nokhu Ram had expressed his desire to execute the Will to Ganga Ram, his Purohit in the presence of Sukh Ram, Tota Ram and also the plaintiff Kala Devi. Purohit was examined as4 had testified that the plaintiff Kala Devi agreed to the wish of Nokhu Ram.2 Sant Ram was one of the attesting witnesses of the Will and5 Jai Singh was the scribe.2 and5 have corroborated the statement of the defendant. J.P. Sharma, advocate, was an identifier of the testator at the time of execution of the Will. He was examined as. He has stated in his evidence that at the time of execution of the Will, Nokhu Ram was mentally and physically sound. The plaintiff was not able to establish in suspicious circumstances alleging the execution of the Will. The trial court after considering the entire materials on record has rightly come to the conclusion that the Will has been executed by Nokhu Ram of his own free Will and that he was in a sound state of mind on the date of execution of the Will4. We are of the view that the first appellate court was not justified in reversing the well reasoned judgment of the trial court. The High Court was, therefore, right in setting aside the judgment of the first appellate court and restoring that of the trial court. We do not find any reason to interfere with the judgment and decree of the High Court.