IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 129 of 1998 Date of decision : 23.7.2010 Ganpatu ….. Appellant. Vs. Smt. Hima and others …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. Ashwani K. Sharma, Advocate. For the Respondents : Mr. Shrawan Dogra, Advocate. Kuldip Singh, J( Oral) The appellant was plaintiff in Civil Suit No.65/90 which was dismissed by learned Sub Judge Ist Class, Court No.III, Mandi on 30.9.1992. The learned District Judge, Mandi in Civil Appeal No.114/1992 on 22.1.1998 has affirmed judgment, decree dated 30.9.1992. 2. The facts in brief are that appellant had filed a suit for declaration to the effect that Will dated 9.8.1980 executed by Kishan in favour of Naiku predecessor-in-interest of respondents No.1 and 2 is void having no legal effect on her rights. The further case of the appellant is that Will dated 9.8.1980 is the result of fraud, undue influence and mis-representation, Kishan Singh was an old man Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… about 89 years of age at the time of his death. Kishan Singh was an illiterate village rustic person. On account of his old age and illiteracy; he was not in a position to understand what is good and bad for him. Naiku used to reside with Kishan Singh and he was under her influence. Kishan Singh died leaving behind land more specifically described in the plaint. Kishan Singh was the father of appellant and father-in-law of Naiku. The appellant has claimed relief of joint possession alongwith Naiku in the suit land. 3. The suit was contested by Naiku and Hima daughter of Naiku by filing written statement, in which preliminary objections of limitation, maintainability and appellant is out of possession were taken. On merits, it was pleaded that Kishan Singh had died in the year 1985 and he validly executed Will dated 9.8.1980 in favour of Naiku, Kishan Singh was quite hale and hearty at the time of the execution of Will. It has been denied that Kishan Singh had executed the Will on account of fraud and mis-representation as alleged. On the pleadings of the parties, the following issues were framed:- 1. Whether the late Kishan had executed a Will regarding the suit land in favour of Defendant No.1? OPD 2. If issue No.1 is proved in affirmative, whether the Will in question is the result of fraud, undue influence and mis-representation? OPP 3. Whether the suit is within time? OPP 4. Whether the suit is not maintainable? 5. Relief The issues No.1 and 4 were answered in affirmative, issues No.2 and 3 in negative and the suit was dismissed on …3… 30.9.1992. In appeal on 22.1.1998, judgment, decree of the trial Court were upheld, hence second appeal which has been admitted on the following substantial questions of law:- 1. Whether a registered ‘Will’ implies its due execution? 2. Whether the execution of ‘Will’ by the Testator should precede attestation by the marginal witnesses, if not so what is its effect ? 4. I have heard Mr. Ashwani K. Sharma, Advocate learned counsel for the appellant and Mr. Shrawan Dogra, Advocate learned counsel for respondents No.1 and 2 and I have also gone through the record. The learned counsel for the appellant has submitted that Will Ex.DW-4/A has not been proved to be executed in accordance with Section 63 of the Indian Succession Act read with Section 3 of the Transfer of Property Act, 1882. He has submitted that Will Ex.DW-4/A is alleged to have been attested by two witnesses namely Sher Singh and Ram Singh. Sher Singh had already died. Ram Singh appeared as DW-4 but statement of Ram Singh would show that he has not proved the Will in accordance with law. It has been submitted that on this ground alone the impugned judgment, decree are liable to be set aside. Mr. Shrawan Dogra, learned counsel for respondents No.1 and 2 has submitted that Will Ex.DW-4/A has been proved. The two Courts below have accepted the execution of the Will which is a finding of fact, no ground has been made out by the appellant regarding the non-execution of the Will. He has supported the impugned judgment, decree. …4… 5. The substantial questions of law No.1 and 2 referred to above are interconnected; therefore, both of them are being disposed of collectively. On behalf of the appellant Section 3 of the Transfer of Property Act which defines attestation has been relied. 6. The learned counsel for the appellant has submitted that according to Section 3 of Transfer of Property Act attestation means executant signing the instrument first and the person who attested the instrument signing the same after the executant. It has been submitted that in the present case reverse is the position as admitted by DW-4 Ram Singh and therefore, it cannot be said that Ex.DW-4/A has been duly attested. He has submitted that in these circumstances it cannot be said that Section 63 of the Indian Succession Act has been complied with for execution of the Will Ex.DW-4/A. 7. DW-5 Dina Nath is the scribe of Will Ex.DW-4/A. He has stated that he had scribed the Will at the instance of Kishan Chand. DW-4 Ram Singh has stated that the Will was executed in his presence as well as in presence of Sher Singh and Kishan Singh and it was scribed by Petition Writer. He and Sher Singh were the witnesses of the Will. The Will was scribed by Petition Writer on the instructions of Kishan Singh who read over the same. Thereafter Kishan Singh and Sher Singh had put their thumb marks on the Will and then he signed the same. Kishan Singh and Sher Singh had put their thumb marks in his presence on the Will Ex.DW-4/A. In cross- examination he has stated that on the papers which were prepared by Petition Writer first of all he put his signature thereafter Sher Singh …5… and Kishan Singh had put their thumb marks. On the basis of later part of the statement of DW-4 Ram Singh, the learned counsel for the appellant has submitted that the Will has not been proved in accordance with Section 63 of the Indian Succession Act read with Section 3 of the Transfer of Property Act. He has relied Kashibai and another vs. Parwatibai and others 1996(1) S.L.J. 315 in support of his contention. 8. It is admitted fact that Sher Singh marginal witness had died. DW-5 Dina Nath scribe has only stated regarding the fact that Will was scribed by him at the instance of Kishan Singh. Only DW-4 Ram Singh was left to prove the Will. DW-4 Ram Singh has specifically stated that he and Sher Singh were the witnesses of the Will. The petition writer had scribed the Will at the instance of Kishan Singh, it was read over. Thereafter Kishan Singh and Sher Singh put their thumb marks and he signed the Will. Kishan Singh and Sher Singh put their thumb marks on Ex.DW-4/A in his presence. In cross-examination, no doubt he has stated that on the papers prepared by the scribe first of all he signed and thereafter those were thumb marked by Sher Singh and Kishan Singh. 9. In examination-in-chief DW-4 has specifically referred Will of Kishan Singh which was thumb marked by Kishan Singh and Sher Singh and signed by him. In cross-examination the attention of the witness was not drawn to Will Ex.DW-4/A when he referred that some papers were thumb marked by Sher Singh and Kishan Singh and thereafter he signed the same. The statement made by DW-4 in examination-in-chief regarding execution of the Will is more specific …6… whereas in cross-examination his statement is general in nature. The appellant cannot take benefit of ’Kashibai and another’ ( supra) in the facts and circumstances of the present case. The two Courts below recorded a finding of fact that execution of Will Ex.DW-4/A has been duly proved. In second appeal the evidence cannot be re- appreciated unless it is established that view taken by the two Courts below is perverse and is not at all possible from the evidence on record. In view of statement of DW-4 Ram Singh, it cannot be said that Will was not duly executed. There is no merit in the appeal. The substantial questions of law No.1 and 2 are decided against the appellant. 10. No other point was urged. 11. The result of above discussion, the appeal fails and is accordingly dismissed. No costs. July 23, 2010 ( Kuldip Singh ) (sks) Judge.