IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Regular Second Appeal No. 198 of 1998. Reserved on: 5.11.2008. Decided on: 25.11.2008. __________________________________________________ Lekh Ram and another. … Appellants. Versus Nand Lal and others. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the appellants : Mr. Shrawan Dogra, Advocate. For Respondents : Mr. Janesh Mahajan, Advocate Vice Mr. Rajiv Jiwan, Advocate. ___________________________________________________________ Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree dated 2.2.1998 passed by the learned District Judge, Bilaspur in Civil Appeal No. 77 of 1988. Brief facts necessary for the adjudication of this regular second appeal are that respondents No. 1 & 2 Shri Nand Lal and Shri Sukh Dev filed a civil suit for declaration and permanent injunction and in the alternative for possession, if found to be dispossessed during the pendency of the suit, in the Court of learned Sub Judge Ist Class, Ghumarwin, District Bilaspur. The dispute between the parties was qua the succession of estate of Smt. Gur Dei, the grand paternal mother of the plaintiffs and proforma respondent No.3 Shri Garhak Singh and the mother of 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 other defendants/appellants, hereinafter referred to as the defendants for convenience sake. The plaintiffs have pleaded their ownership and possession over the share of deceased Gur Dei through a Will dated 2.7.1979 executed in favour of the plaintiffs and proforma respondent No.3 Shri Garhak Singh. Smt. Gur Dei had 1/5th share in the land comprised in Khasra Nos. 203, 207/1 and 493, Khewat No. 61, Khatauni No. 84, total measuring 51-15 bighas situated in village Panol, Pargana Tiun, Tehsil Ghumarwin, District Bilaspur, H.P. The defendants had filed the written statement. The case set up by the contesting defendants was that no Will dated 2.7.1979 was executed by Smt. Gur Dei and they have put up a Will dated 4.12.1979 in their favour executed by Smt. Gur Dei. The learned trial Court decreed the suit on 28.4.1988. The contesting defendants feeling dis-satisfied with the judgment dated 28.4.1988 preferred an appeal before the learned District Judge, Bilaspur. The learned District Judge, Bilaspur dismissed the appeal on 2.2.1998. This regular second appeal was admitted on the following substantial question of law: “Whether the Courts below have correctly read and appreciated the evidence on record to come to the conclusion that the Will Ext. DW-2/A dated 4.12.1979 is not a legal and valid Will as it is shrouded in suspicious circumstances? Mr. Shrawan Dogra, Advocate has strenuously argued that judgments and decrees passed by both the Courts below are not sustainable. He has strenuously argued that the Will dated 4.12.1979 was duly executed in favour of the defendants and 3 contrary findings recorded by both the learned Courts below are against the facts and law. Mr. Janesh Mahajan, Advocate appearing vice Mr. Rajiv Jiwan, Advocate has supported the judgments and decrees passed by both the learned Courts below. I have heard the parties and have gone through the record carefully. According to the plaintiffs, Smt. Gur Dei had executed the Will in their favour on 2.7.1979. This will Ext. PW-2/A was scribed by PW-2 Shri Amar Nath. The Will Ext. PW-2/A is a registered Will. Shri Amar Nath, Petition Writer has deposed that on 2.7.1979 the Will Ext. PW-2/A was executed by Smt. Gur Dei, which was written by him and was read over and explained to her, who after admitting the same to be correct appended her thumb impression in presence of witnesses Babu Ram and Piar Singh, who also signed in the presence of each other. PW-3 Shri Piar Singh has deposed that Will Ext. PW-2/A was executed by Smt. Gur Dei and was scribed by Shri Amar Nath, Petition Writer in his presence and in the presence of Shri Babu Ram. PW-1 Shri Sukh Dev has deposed that Smt. Gur Dei is his grand paternal mother, who was living with him and she had executed a Will in his favour and in favour of Shri Nand Lal & respondent No.3 Garhak Singh. PW-3 Shri Piar singh, PW-4 Shri Amar Singh and PW-5 Shri Vijay Singh have also deposed that Smt. Gur Dei was living with the plaintiffs and not with the defendants. According to PW-5 Vijay Singh, the last rites were also performed by the plaintiffs and not by the contesting defendants. The learned Courts below have returned concurrent finding that the Will Ext. PW-2/A dated 2.7.1979 was valid and executed in 4 accordance with law. The findings are based on correct appreciation of evidence. Now, the Court will advert to the Will Ext. DW-2/A dated 4.12.1979 set up by the contesting defendants. This Will has been scribed by DW-3 Shri Roop Singh Thakur, Advocate. In his cross- examination, he has admitted that Shri Lekh Ram defendant accompanied him to the residence of Smt. Gur Dei and the testatrix was identified by defendant Shri Lekh Ram. He has further deposed that neither any President nor Member of the Ward were called to the spot and that there were no other houses surrounding the house of the testatrix. DW-2 Shri Shiv Singh is one of the attesting witnesses. He has deposed that Smt. Gur Dei got her Will executed from Shri Roop Singh Thakur, Advocate in his presence and one Dandu Ram. She appended her thumb impression in his presence after the Will was read over and explained to the testatrix which she admitted to be correct and it was executed at her house. He has admitted that there are 6-7 houses surrounding the houses of the defendants and neither any Nambardar nor any President was present when the Will was executed. DW-1 Shri Lekh Ram has deposed that Smt. Gur Dei got the Will executed and scribed from Shri Roop Singh thakur, Advocate in presence of Shri Shiv Singh and Shri Dandu Ram. He has admitted in his cross-examination that the scribe as well as the witnesses were called by him. It is thus evident that Shri Lekh Ram played an active role to get the Will executed by calling the scriber DW-3 Shri Roop Singh Thakur, Advocate from Ghumarwin to Panol and then brought the attesting witnesses Shri Dandu Ram and Shri Shiv Singh. Shri Roop Singh Thakur has deposed in his cross- 5 examination that there were no houses surrounding the house of the testatrix. However, DW-2 Shri Shiv Singh has admitted that there were 6-7 houses surrounding the house of the testatrix. A bare perusal of Ext. DW-2/A depicts that the testatrix has not been properly identified. The scribe has not given his full address and has also not put date below his signatures. The learned trial Court and the First Appellate Court after correct appreciation of the evidence have come to the right conclusion that the Will Ext.DW-2/A is shrouded with suspicious circumstances and not validly executed. Shri Lekh Ram has played major role at the time of execution of the Will Ext. DW-2/A. It has come in the evidence, as discussed above, that the testatrix was living with the plaintiffs and not with the defendants. Her last rites were performed by the plaintiffs and not by the defendants. The Will Ext. DW-2/A is dated 4.12.1979, however, the same was got registered on 26.12.1984. In view of the discussion made hereinabove, there is no substantial question of law involved in this regular second appeal. Accordingly, the same is dismissed. No costs. (Rajiv Sharma), J. November 25, 2008. (cr)