IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 234 of 2000 with RSA No. 246 of 2000 Reserved on: 17.5.2010 Date of decision: 24.06.2010 RSA Nos. 234 and 246 of 2000: Smt. Sodhan ... Appellant Versus Kaushalya Devi and others … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. Ajay Sharma, Advocate, in both the appeals. For the respondents: Mr. Ramesh Sharma vice Mr. N.K. Thakur, Advocate for respondent No. 1, in RSA No. 234 of 2000. Mr. K.D. Sood, Advocate, for respondents No. 2 and 3, in both the appeals. V.K. Ahuja, J. : This judgment shall dispose of both the appeals filed by appellant Smt. Sodhan. 2. Briefly stated, the facts of the case are that a suit for declaration was filed by respondent Smt. Kaushalya Devi, hereinafter referred to as ‘the plaintiff’ as against Smt. Sodhan, appellant, hereinafter referred to as defendant No. 1 and as against Smt. Biasan Devi and Santosh Kumari, respondent, hereinafter referred to as defendants No. 2 and 3. The plaintiff filed the suit that she is owner in 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 possession of the land measuring 4 Kanals 17 Marlas as alleged in the plaint and as well as owner in possession of Aehata abadi marked ABCD including Khola marked BDEF and courtyard marked AFGH, situated in village Raipur Tappa Thara, Tehsil Bangana, Distt. Una. The plaintiff had also alleged that the mutation in regard to the estate of Nathu, now deceased infavour of defendant No. 1 is also wrong. The land in dispute was jointly owned and possessed by Nathu son of Hem Raj and Jagdish Lal son of Nathu. Nathu deceased was the brother of plaintiff’s husband Hari Lal, who died in the village about twenty years back and was succeeded by the plaintiff, his widow. Jagdish son of Nathu died during the life time of his father and as such, Nathu succeeded to the estate of his predeceased son being his sole heir. The wife of Nathu also died during his life time. It was further alleged that Nathu who was the plaintiff’s husband’s brother used to be served and looked after by the plaintiff since he was ill and had died at the age of 82 years. Nathu died on 18.5.1987 in the village at his house. The defendants were not related to Nathu deceased in any manner. The plaintiff alleged that after the death of Nathu, she has succeed to his estate being the sole heir of the deceased. 3. It was further alleged that defendant No. 1 in connivance with others got entered mutation regarding the estate of Nathu deceased on the basis of forged and false will alleged to have been executed by Nathu deceased. The Will was never executed by the deceased who was not competent to do so being old and not of sound and disposing mind. The defendant was threatening to take possession on the basis of the said mutation and 3 on the basis of the Will. Hence, the suit for declaration filed by the plaintiff that the said Will was not binding upon the plaintiff being illegal and relief of permanent injunction was also claimed. 4. In written statement filed by defendant No. 1 took up the plea that defendant was rendering services and looking after the said Nathu till his death who executed a valid Will in favour of the defendant who is in possession of the entire estate of the deceased on the basis of the said Will. It was also pleaded that the plaintiff has no locus standi to file the suit. Defendants No. 2 and 3 also pleaded that they succeeded to the estate of Jagdish deceased being his sole heir as widow and daughter and mutation was also sanctioned in their favour. 5. On the pleadings of the parties, the following issues were settled by the learned trial Court:- 1. Whether the plaintiff is owner in possession of the suit land as mentioned in paragraphs A and B of the plaint, as alleged? OPP 2. Whether the suit is not maintainable, as alleged? OPD-1 3. Whether the plaintiff has no locus standi to file the suit? OPD 4. Whether the suit is not valued properly? OPD-1. 5. Whether deceased Nathu executed a valid will dated 16.4.1987 in favour of defendant No. 1, as alleged? OPD-1. 6. If issue No. 5 is proved in affirmative whether defendant No. 1, is owner in possession of the suit land, as alleged? OPD-1. 7. Whether defendants No. 2 and 3 succeeded to the estate of Jagdish Lal being his sole heirs as alleged? (OPD-2 and 3). 8. Relief. 4 6. The parties led their evidence and learned trial Court vide impugned judgment held that the plaintiff was not in possession of the suit lad. The suit was not maintainable. The learned trial Court decided Issues No. 2, 3, 5 and 6 in favour of the plaintiff and as against the defendants and consequently dismissed the suit of the plaintiff in full. 7. On appeal filed by Smt. Kaushalya Devi, plaintiff and Smt. Biasan Devi and Santosh Kumari, defendants, the learned Additional District Judge vide his judgment dated 12.5.2000 disposed of both the appeals holding that the appeal filed by Smt. Kaushalya Devi was liable to be dismissed. However, findings under Issue No. 5 were reversed and the appeal filed by Biasan Devi etc. was allowed. 8. Two appeals have been preferred against the judgment and decree passed by the learned Additional District Judge by the appellant and these are being disposed of by a common judgment since judgment of the learned trial Court was a common judgment in case No. 13 of 1987, decided on 2.12.1994. 9. The appeal filed by Smt. Sodhan, defendant No. 1/appellant was admitted on the following substantial questions of law framed by the Court:- 1. Whether the present appeal at the instance of appellant – defendant No. 1 assailing the findings on certain issues is maintainable when the suit of the plaintiff – respondent No. 1 has been dismissed by the two courts below? 5 2. If question No. 1 is answered in the affirmative, whether the learned trial court has erred in permitting secondary evidence? 3. Whether the two courts below have misread and mis- appreciated the evidence, oral as well ass documentary coming on the record in arriving at their respective conclusions? 10. The second appeal filed by Smt. Sodhan, defendant No. 1 is in which it was prayed that the findings of learned Additional District Judge may be quashed and set aside holding that the Will in question to be genuine and by restoring the judgment of the learned trial Court. 11. The appeal in the second case was also admitted on the same substantial questions of law as formulated in the above appeal No. 234 of 2000. 12. I have heard the learned counsel for the parties and have gone through the record of the case. 13. The submissions made by the learned counsel for the appellant Smt. Sodhan Devi, defendant No. 1 before the trial Court were that Will in quest ion was genuine one and the same stood proved from the statement of one of the marginal witnesses as well as from the statement of scribe and, therefore, the findings recorded by learned Appellate Court holding the Will to be not genuine are liable to be reversed. The findings of learned Appellate Court on Issue No. 5 in this regard were, therefore, challenged by the appellant. 14. A perusal of the substantial question of law on which the appeal was admitted clearly shows that question No. 3 was only in regard to the fact that the two Courts below have misread and 6 mis-appreciated the evidence, oral as well as documentary in arriving at their respective conclusions. There was nothing specific in this question that the findings recorded under Issue No. 5 were found by the Courts below being not correct and accordingly, there was need for reappraisal of the evidence in regard to the findings under Issue No. 5. It has not been specifically observed under point No. 3 that the findings under Issue No. 5 were incorrect and, therefore, once there were findings of two Courts below which were not shown to be incorrect for any reason i.e. non-consideration of the oral or documentary evidence and as such, there was need of reappraisal of the evidence by this Court sitting in appeal. The findings of both the Courts below in second appeal could be challenged and there could be reappraisal of the evidence in case oral or documentary evidence was not considered by the Courts below in coming to its conclusion. The Point No. 3 was in case Courts below have misread and mis- appreciated the evidence to prove and during arguments nothing was pointed out, it could be interpreted as misreading or mis-appreciating of evidence by the Courts below. The learned trial Court had given its detailed findings under Issue No. 5. The learned first Appellate Court had given reasons for dis-agreeing with the findings of the learned trial Court holding that the Will was genuine. It has been clearly observed that due execution of the Will was not proved since one of the attesting witness who had been examined, namely, Pratap Singh, Pradhan, DW-5, says that the Will was scribed and it bears his signatures, but he cannot say that the said Will was ever read over to the testator and he never stated that the testator signed the Will in his presence. He admitted that he is resident of Chuari village and other witness 7 admittedly was Madan Lal who was no more and he was the domestic servant of the propounder of the Will. The Will in question has to be signed by the testator in presence of two witnesses and two attesting witnesses must sign the Will in presence of the executant, but the statement of DW Pratap Singh, Pradhan, one of the attesting witness was sufficient to demolish the case of defendant No. 1 and, therefore, the findings recorded by the learned Appellate Court holding that the Will in question was not proved to be genuine, are liable to be affirmed. It was also observed that the recitals made in the Will that the executant died issueless since names of defendants No. 2 and 3 were not mentioned and no reasons had been recorded in the Will for their disinheritance, when the evidence led clearly shows that defendants No. 2 and 3 were the L.Rs. Defendant No. 2 being the widow of Jagdish, pre-deceased son of testator and defendant No. 3 being the grand-daughter and, therefore, it was only observed that the executant died issueless. Accordingly, the findings on Issue No. 5 in this regard are liable to be affirmed, which are affirmed accordingly. Insofar as the question of succession of estate of Nathu is concerned, it has already come on record that defendant No. 2 is widow and defendant No. 3 is daughter of pre-deceased son of the testator and both the Courts below came to the same conclusion under Issue No. 7, which findings do not call for reappraisal on any ground. Defendant No. 1 has not filed any Cross Objections in that regard and those findings are liable to be affirmed. Insofar as the plaintiff was concerned, it was rightly observed by the learned trial Court that he had no locus-standi to file the suit and those findings are liable to be affirmed. However, since it has been proved on record 8 that defendants No. 2 and 3 being the L.Rs of deceased Nathu are entitled to succeed to his estate and as such, the findings on all the issues as recorded by the learned first Appellate Court are liable to be affirmed and there is no merit in the appeals filed by the appellant. 15. During the course of arguments, a plea was also raised that the learned trial Court had allowed the application filed by applicant/defendant Biasan Devi in regard to two affidavits of Jagdish Chand and Biasan Devi, which were presented before the Executive magistrate on 29.12.1981. It was alleged that the original affidavits were with the applicant in trunk and same were found missing, which fact came to be known when the applicant/appellant searched for them about a year back. This application was duly supported by an affidavit. Reply was filed by the plaintiff/respondent. 16. On the pleadings of the parties, on the basis of the application for secondary evidence, the following issues were framed on 22.3.1994:- 1. Whether defendants No. 2 and 3 are entitled to lead secondary evidence with regard to affidavit dated 29.12.1981 of Jagdish Chand and Besa Devi? OPD 2. Relief. 17. In support of these issues, a statement was made by the learned counsel for the appellant that the evidence adduced in the main suit be read as evidence of this application. The said application was allowed for secondary evidence as per the order dated 27.6.1994. The Court had made a reference to the testimony of DW-5 Biasan Devi about the loss of the original affidavit executed by her and one Jagdish Ram. It was held that there is no reason to 9 disbelieve her statement. Thus, the existence and loss of affidavits was prima facie established from the testimony and as such, the application was allowed. The only two ingredients required to be was the existence of the documents in question and the loss of the same which was proved by the applicant. Thus, it cannot be said that the application was allowed wrongly or the order passed is liable to be set aside. There is no merit in the ground taken by the appellant and as such, the contention putforth is repelled being devoid of any force. 18. In view of the above discussion, I accordingly hold that there is no merit in both the appeals filed by the appellant, which are dismissed. A certified copy of this judgment be placed on the record of RSA No. 246 of 2000. ( V.K. Ahuja ), June 24, 2010 Judge (BSS)