By Dr. K. Shivaram Senior Advocate Ajay R. Singh Advocate
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Dhameshwar vs. Gish Pati & Ors. AIR 2015 HP 77
The Appellant plaintiff had filed a suit against the Respondent-defendant, namely, Gish Pati and Proforma Respondents-defendants for declaration and for permanent prohibitory injunction as a consequential relief. According to the plaintiff, Smt. Drumati Devi had not executed the Will, dated 15.06.1985, Ex. DW2/A in favour of defendant, Sh. Gish Pati. Drumati Devi was 78 years of age in the year 1985 and the defendant No. 1 in collusion with the subordinate revenue staff and behind the back of the plaintiff and proforma defendants, got the mutation attested in his favour with regard to the share of late Smt. Drumati Devi. He came to know about this in the month of January, 1994. The Will is unregistered. Smt. Drumati Devi was an old, illiterate and simple lady. She had never expressed her will or desire to disentitle the plaintiff and other proforma defendants from her share in the suit property. The execution of the Will was result of undue influence, misrepresentation and coercion. The Will, dated 15.06.1985, was null and void. He also sought the decree of permanent prohibitory injunction against the defendant No. 1.
The suit was contested by the defendant No. 1. According to him, Smt. Drumati Devi was fully capable and sensible lady. She in lieu of the services rendered by him, executed a Will in his favour. Thereafter, on the basis of the Will, dated 15.06.1985, the mutation was also attested. The revenue entries were in accordance with the law.
What emerges after analysis of the statements of the witnesses, is that the Will is dated 15.06.1985. It was scribed by Dile Ram. The contents of the Will were read over and explained to Drumati Devi. She had put her thumb impression on the same. Thereafter, the marginal witnesses, Himan and Het Ram signed the same. The defendant No. 1 used to look after his mother. The plaintiff was out of village. The last rites were performed by defendant No. 1. Drumati was in her senses at the time of execution of the Will.
The counsel for the plaintiff contended that the marginal witnesses have used different ink. The Court held that merely the fact that the marginal witnesses have used different ink, will not make the Will suspicious.
The non registration of the Will will not make it suspicious. The Will has been executed strictly as per the provisions of the Indian Evidence Act and the Indian Succession Act.
