IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 387 of 1995. Judgement reserved on: 3.1.2008. Decided on: January 4, 2008. Rajinder Singh and another …..Appellants. VERSUS Master Sanju …..Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellants: Mr. O.P.Sharma, Sr. Advocate with Mr. K.R. Kashyap, Advocate. For the Respondent: Mr. K.R.Thakur, Advocate. Kuldip Singh, Judge. The defendants are in appeal against the judgement, dated 11.7.1995, passed by the learned District Judge, Shimla, in Civil Appeal No. 105-S/13 of 1994, whereby learned District Judge has upheld the judgement and decree, dated 21.9.1994 passed by Sub Judge Ist Class, Court No. 4, Shimla, in case No. 9-1 of 1991. 2. The facts in brief are that one Radha d/o Liaq Ram filed a suit against Rajinder Singh and Bir Singh for declaration assailing the will of Liaq Ram in favour of Rajinder and registered in the office of Sub Registrar, Suni at Serial No. 75/90 dated 22.10.1990. According 1 Whether the reporters of the local papers may be allowed to see the Judgment? …2… to the case of the plaintiff she was the only surviving legal heir of deceased Liaq Ram and was entitled to inherit his property mentioned in the plaint and therefore she prayed permanent prohibitory injunction restraining the appellants herein from interfering in her possession on the suit land. The original plaintiff Radha died on 21.7.1993. The learned Sub Judge on 15.10.1993 held that right to sue survives only to Master Sanju after the death of Radha and he was brought on record. 3. In the suit, the will dated 22.10.1990, of Liaq Ram was assailed on the ground that no such will was executed by Liaq Ram. It was pleaded that will, dated 22.10.1990, is wrong, illegal and deserves to be declared as such. Rajinder Singh cannot derive any benefit under the will and the mutation No. 289, attested on 7.12.1990 on the basis of will is also wrong and illegal. 4. The suit was contested by the defendants by filing written statement. They have submitted that Liaq Ram executed the will, dated 22.10.1990, which is genuine and legal. Liaq Ram was in fit state of mind at the time of execution of the will. The defendants are owners in possession of the property left by Liaq Ram on the basis of will dated 22.10.1990. Radha was married and she never looked after the land. The trial court framed the following issues:- 1. Whether the will dated 22.10.1990 is executed in accordance with law? OPD. 2. If issue No.1 is proved in affirmative whether the plaintiff is entitled for declaration that she is the owner in possession of the suit land as prayed? OPP. …3… 3. If issue No. 2 is proved in affirmative whether the plaintiff is entitled for the relief of permanent prohibitory injunction as prayed? OPP. 4. Relief. 5. The trial court held that Liaq Ram did not execute any will dated 22.10.1990 in favour of Rajinder Singh and decreed the suit on 21.9.1994. The defendants filed appeal, which was dismissed by the learned District Judge on 11.7.1995, hence defendants are in second appeal, which has been admitted on following substantial questions of law:- 1. Whether the courts below have misinterpreted the duly registered will Ex. PW 4/A? 2. Whether the courts below have wrongly rejected the application under Order 41, Rule 27 CPC to produce the Tehsildar as a witness? 3. Whether a man can be said to be ill when no receipt of his illness has been produced and allegations are vague and wild? 4. Whether a will can be registered at the house of testator? 6. I have heard Mr. O.P.Sharma, learned Senior Advocate appearing on behalf of the appellants and Mr. K.R.Thakur, learned counsel for the respondent and gone through the record. It has been …4… submitted by the learned Senior Counsel for the appellants that will Ex. PW 4/A, executed by Liaq Ram in favour of Rajinder Singh has been proved on record. The two courts below have erred in returning the finding that execution of the will has not been proved. The lower appellate court erred in rejecting additional evidence application of the appellants. The learned counsel for the respondent has supported the impugned judgement, decree. Substantial questions of law No. 1 to 4: 7. The substantial questions of law No. 1 to 4 are basically regarding the will of Liaq Ram in favour of Rajinder Singh, therefore, they are being disposed of collectively. The execution of the will is required to be proved in accordance with Section 63 of the Indian Succession Act. PW 4 Jit Ram is the scribe of the will. He has stated that will Ex. PW 4/A was scribed by him, which was written at Suni and was not written at Shawli. A few days earlier Liaq Ram had asked him to scribe the will. On the date of scribing the will, Liaq Ram was not at Suni. In cross examination, he has stated that he went to Shawli and obtained the signatures of Liaq Ram on will. The signatures of attesting witness Gian Singh were obtained at Shawli. This witness has not stated that Hari Ram attesting witness was also present at Shawli when Liaq Ram signed the will. 8. DW 1 Rajinder has stated that Liaq Ram had executed the will, dated 22.10.1990. In cross examination he has stated that will was written at his instance and Liaq Ram was not at Suni. He has …5… reiterated that petition writer had written the will on his dictation. Liaq Ram had not asked the petition writer to scribe the will. 9. DW 2 Gian Singh has stated that Liaq Ram had only one daughter Radha. Liaq Ram had executed will Ex. PW 4/A, which was already written, but it was signed in his presence. He has put his signatures encircled “X” on Ex. PW 4/A. Hari Ram also signed the will. It is significant to note that Ex. PW 4/A is not the original will, in fact it is a copy of the will. On Ex. PW 4/A, there are no signatures of Gian Singh or Hari Ram or Liaq Ram. Ex. PW 4/A being a copy and not the original and therefore, signatures of Liaq Ram testator and other attesting witnesses are not on Ex. PW 4/A. The original of Ex. PW 4/A was not shown to Gian Singh attesting witness when he appeared in the court, therefore, will Ex. PW 4/A has not been proved from primary evidence. DW 2 Gian Singh in his examination-in-chief has not stated that Liaq Ram, Hari Ram and he himself signed the will at Shawli and not at Suni. The perusal of Ex. PW 4/A would show that this document is written on 22.10.1990 at Suni and not at Shawli. PW 4 Jit Ram has contradicted the contents of will Ex. PW 4/A regarding the place of signing of the will by Liaq Ram and other witnesses. The second attesting witness has not been examined. 10. DW 1 Rajinder has admitted that the will was written at his instance and Liaq Ram did not ask the petition writer to scribe the will. The will is shrouded by suspicious circumstances, the execution of the will has not been proved in accordance with law. It has been submitted on behalf of the appellants that application of the appellants …6… in the court below, under Order 41 Rule 27 CPC was wrongly rejected. They wanted to produce the Tehsildar, as a witness. The execution of the will has not been proved and in absence of proof of execution, no improvement can be made by the Tehsildar for proving the will. The registration of the will in itself is not the proof of due execution of the will. The courts below have concurrently held against the execution of the will, which is a finding of fact. 11. The appellants have failed to make out any case for interference. Accordingly, the substantial questions of law No. 1 to 4, are decided against the appellants. No other point was urged. The result of the above discussion, the appeal fails and is accordingly dismissed with costs. January 4, 2008. ( Kuldip Singh ) (Hem) Judge