IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: RSA.No.27/1998 Date of Decision.1st August,2008 Charan Dass and others. …Appellants . Versus: Smt.Banti Devi and others. …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for Reporting?1 Yes. For the appellants: Mr.Sanjiv Kuthiala, Advocate. For Respondents . Mr.Bhupinder Gupta, Sr.Advocate with Ms.Charu Gupta, Advocate. Sanjay Karol, J. The present appeal arises out of the concurrent findings of fact recorded by the courts below. Plaintiff-Bhagat Ram filed Civil Suit No.190/1 of 1993 against Sh.Charan Dass-defendant No.1; Sh. Hamki- defendant No.2; Sh.Atmi-Defendant No.3; Sh.Ram Asri- defendant No.4; Sh.Sarwan-defendant No.5; Sh.Chura- defendant No.6; Sh.Ram Lok-defendant No.7; Sh. Baldev Chand-defendant No.8 and Sh.Sita Ram-defendant No.9 seeking a declaration that he be declared owner in possession of the suit land and the entries in the revenue record showing the defendants as owner in possession be held to be wrong 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 and illegal. The said suit was decreed in terms of its judgment and decree dated 30th May, 1996 passed by Sub Judge, Ist Class, Nalagarh, District Solan, H.P. Defendants No.1 to 6 assailed the same by way of Civil Appeal No. 49-NL/13 of 1996 which was dismissed by the District Judge, Solan Camp at Nalagarh vide judgment and decree dated 13th November, 1997 and the first appellate Court upheld the finding of fact recorded by the court below. Against the same, defendants No. 1 to 6 filed the present appeal which was admitted on the following substantial questions of law: 1. Whether on proper construction of the Will Ext. PW-1/A it was established on record that Puran Chand executor had executed the same on his own free will and the execution thereof was established?. 2.Whether in view of the fact that the executor had executed the Will in favour of a distinct collateral in preference to his only legal heir and daughter, it was shrouded with suspicious circumstances and was executed without legal necessity and could be legally valid?. 3. Whether on the proper scrutiny of the evidence, record and the pleadings, the onus was on the plaintiff to establish that the Will was validly executed and the same stood properly discharged?. 4. Whether the oral and documentary evidence has been properly appreciated in its proper perspective especially the statements of PW-2 3 Durga and PW-3 Kishan and the document Ext. PW-1/A, Will dated 12.1.1975? 5. Whether the mode and proof of the valid execution of the Will was properly established and the exclusion of the statement of the scribe was fatal to the Will?. During the pendency of the appeal, original plaintiff-respondent No.1 herein died and his legal heirs were brought on record. However, for the purpose of adjudication of the appeal and for the purpose of convenience, the original respondent No.1 herein is referred to as the ‘plaintiff’ and the present appellants are referred to as ‘defendants No. 1 to 6. Plaintiff claimed ownership and possession of land owned by his brother Sh. Puran son of Sh. Lakhu resident of village Nahar Singh Wala, Tehsil Nalagarh (H.P.) in villages Malkoo, Majra, Narsingh Wala and Kheri on the strength of Will dated 12th January, 1975 executed by his brother Sh. Puran in his favour. As per the Will the entire land owned by the testator devolved upon him. At the time of his death Sh. Puran was survived only by his daughter Smt. Bachni but since she was aware that the testator was being looked after by the plaintiff in every respect she did not challenge the same during her life time and all properties belonging to Sh. Puran on the strength of the Will in villages Narsinghwala and Kheri were mutated in favour of the plaintiff. But, however, the Revenue Officer by mistake entered the mutation in respect of the land comprising 1/4th share in Khata Khatauni 4 No. 30/30 Kitas 21 measuring 37-4 bighas, and 3/8 in khata khatauni No. 146/172 measuring 7-13 bighas and 9 share in khata khatauni No.31/31 measuring 10-16 bighas situate in village Malkoo Majra (referred to as the ‘suit land’) in the name of Smt. Bachni and after her death in the year 1979, on the basis of this wrong mutation was recorded in favour of her legal heirs. Even though the plaintiff was in possession of the suit land but, however, the defendants have now raised dispute with regard to the ownership and possession of the same. The defendants contested the suit and denied the plaintiff’s right. Based on the pleadings of the parties, the trial Court framed the following issue: 1.Whether the deceased Puran executed a legal and valid will in sound state of mind on 12.1.1975 in favour of plaintiff?. ..OPP. 2.If issue No.1 proved in affirmative whether the plaintiff is owner in possession of the suit land?. ..OPP. 3.Whether the suit is not maintainable?. ..OPD. 4. Whether the suit is barred by limitation? ..OPD. 5.Whether the plaintiff is estopped to file the present suit by his act, conduct and acquisance ? ..OPD. 6.Whether the defendant has become owner of the suit land by way of adverse possession?. ..OPD. 5 7. Relief. Appreciating the material on record, the trial court came to the conclusion that the propounder had been able to prove that the deceased Sh. Puran had executed the Will in question in a sound disposing state of mind. The plaintiff was found to be in possession of the suit land and, therefore the defendants also could not be said to have perfected their title as owner by way of adverse possession. The first appellate Court, after appreciating the material on record upheld the finding of fact returned by the court below and dismissed the appeal. The court found that the marginal witnesses were respectable members of the society holding official position and their version was absolutely trustworthy and reliable. I have heard learned counsel for the parties and also perused the record. In case of disinheritance of a natural heir, duty is cast on the Court to scrutinize the evidence in support of the execution of the will with a greater degree of care and caution (Smt. Sushila Devi Vs. Pandir Krishna Kumar Missir and others, 1971 (3) SCC 146. 6 No doubt, the onus of proving the Will, particularly where a natural legal heir has been excluded, is heavy on the propounder but, however, the fact that the legal heir has been excluded that by itself would not render the Will to be illegal or void, if there is material on record justifying the same. Original Will dated 12th January, 1975 is Ext.PW- 1/A. Two of the seven attesting witnesses, namely, Sh. Durga Singh (PW-2) and Sh. Krishnu (PW-3) have proved the execution of the Will. The scribe Sh. Surinder Singh Chandel had expired and, therefore, could not be examined. PW-2 has deposed that the testator was in good health and sound disposing state of mind and had informed about him the intention to execute the Will in favour of the plaintiff and as such had called him for the purposes of attestation. The Will scribed by Sh. Surinder Singh was read over and contents explained to the executant who having admitted the contents thereof put his thumb impression on the same in the presence of all the witnesses. Thereafter all the witnesses including PW-2 and PW-3 attested the same. Sh. Durga Singh (PW-2) was the Pradhan at the relevant point in time. Sh. Krishnu (PW-3), an acquaintance of the executant has corroborated the version of PW-2. On the asking of the executant he had put his thumb impression and 7 all the witnesses and the executant had put their signatures/thumb marks in the presence of each other. Undoubtedly, the beneficiary is the real brother of the executant who was widower and had only one daughter Smt. Bachni alive at that time. It is undisputed fact that the said daughter was married and happily settled. PW-2 and PW- 3 have proved the fact that Sh. Puran was being looked after by the plaintiff. It has also been proved that the last rites of Sh. Puran were performed by the plaintiff. The plaintiff has proved that except for the suit land during the life time of Smt.Bachni, on the strength of the Will all the properties of deceased Sh. Puran were got mutated by the plaintiff in his name. The submission made by the learned counsel for the appellant that there are contradictions in the statements of PW-2 and PW-3, in my view is not correct. The contradiction, if any, as pointed out by the learned counsel is minor and has been considered by the first appellate court which reads as under: “Sh.Sharma in order to show that the will is shrouded by suspicious circumstances, which are not removed by the propounder of the will and drew my attention to the narration of attesting witnesses of the will Ext. PW-1/A. Sh. Durga Singh (PW-2) attesting witness of the will was unable to say whether the will was got scribed on judicial papers or on ordinary papers. However, he was definite that it was written on two papers. 8 Then I was referred to PW-3 Shri Krishnu who has stated that on two “Pucca Kagaz” (probable he meant judicial papers), the will was written. Also it was admitted by him that the will at the time of mutation was produced before Tehsildar who returned the same after initialing it. There are no such initials of the Tehsildar on the will nor it was written on Pucca papers. But these are not the suspicious circumstances surrounding the Will. The suggestion as put to Shri Krishnu (PW-3) was admitted that Tehsildar at the time of mutation initialed the will. The will being not on judicial papers would not make it suspicious, because defendant failed to get it explained from PW-3 Sh. Krishnu, as to what he meant by “Pucca Kagaz”. The plaintiff’s evidence (oral and documentary), in my view, is absolutely trustworthy, reliable and truthful. In Smt. Indu Bala Bose and others Vs. Manindra Chandra Bose and another (1982) 1 SCC 20, it has been held that any and every circumstance is not a “suspicious” circumstance. A circumstance would be “suspicious” when it is not normal or is not normally expected in a normal situation or is not expected of a normal person. Learned counsel for the appellant has vehemently argued that non-examination of the scribe of the will is a circumstance raising a suspicious about the execution of the Will. The submission needs to be rejected for the reason that the scribe was not alive and, therefore, could not be examined. Two of the attesting witnesses were examined. 9 In the present case, the propounder had not suppressed the Will and produced the same at the earliest before the relevant authorities and staked its claim on the properties of the deceased. On the basis of the said will the mutations (Ext.P-4 and P-5) dated 17th August, 1977 and 17th December, 1977 respectively were carried out by the revenue authorities with respect to land in villages Kheri and Narsinghwala. When the defendants started interfering in the plaintiff’s possession, the plaintiff immediately challenged their right of ownership. It has been noticed by the first appellate Court that the inheritance of Smt. Bachni in favour of defendants was not sanctioned. Disinheritance of a happily married and well settled daughter in the present case does not amount to be a suspicious circumstance, particularly when the beneficiary is the real brother who had been taking care of the executant during his life time. From the recital of the Will, it is clear that the sole legal heir daughter was happily settled and married. The courts below have appreciated the material (oral and documentary) in its correct perspective and rightly came to the conclusion that Sh. Puran had voluntarily executed the Will in favour of his real brother. The execution of the Will Ext.PW-1/A duly stands proved and is not shrouded with any suspicious circumstance. The onus, heavy on the propounder in the present case stands duly discharged. 10 The questions of law are answered accordingly. No fault can be found with the view taken by the Courts below. The present appeal is accordingly dismissed. No costs. (Sanjay karol), Judge. August 1, 2008(R)