IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.519/1998 Reserved on:20.11.2008 Decided on:6.1.2009 Hari Ram and others. …Appellants. Versus Harinder Datt. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the appellants : Mr. G.C. Gupta, Senior Advocate with Mr. Deepak Gupta, Advocate. For the Respondents : Mr. Vinod Gupta, Advocate for respondents No.1 to 4. Rajiv Sharma, J. This Regular Second Appeal has been directed against the judgment and decree dated 1.9.1998 passed by the learned Additional District Judge, Sirmour in civil appeal No. 3-N/13 of 1998. Brief facts necessary for the adjudication of this Regular Second Appeal are that the appellants-plaintiffs (hereinafter referred to as ‘the plaintiffs’ for convenience sake) filed a suit for declaration to the effect that they had succeeded to the estate of Sh. Sarda Ram son of Sh. Gulab Singh on the basis of will dated 3.2.1991 which according to them was the 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 last will executed by said Sh. Sarda Ram as owner thereof and the mutation No. 213 attested by the Assistant Collector-IInd Grade, Pachhad in favour of the respondents-defendants (hereinafter referred to as ‘the defendants’ for convenience sake) on 16.8.1991 was illegal, null and void with a consequential relief of injunction restraining the defendants not to interfere in any manner in the suit land succeeded by the plaintiffs on the basis of the said will or till the land in question is partitioned situated in Mauza Chakli Munder, Tehsil Pachhad, District Sirmaur or in the alternative for possession. The suit was contested by the defendants. The trial court dismissed the suit on 30.9.1997. The plaintiffs have examined four witnesses to prove the will dated 3.2.1991. The defendants have examined five witnesses. The earlier will is dated 8.10.1990 on the basis of which mutation was attested on 16.8.1991. The plaintiffs preferred an appeal before the learned Additional District Judge, Sirmaur District at Nahan. The same was dismissed by the learned Additional District Judge. This Regular Second Appeal has been directed against the judgment and decree dated 1.9.1998. This Regular Second Appeal was admitted on the following substantial questions of law: 1. “Whether the impugned decree and judgment deserve to be interfered with on the ground that the courts below have not adverted themselves to the alternative case of the appellants-plaintiffs that they have been in possession of the land in dispute as co-owners and they cannot be dispossessed except in accordance with law i.e. till the land is partitioned between them and other co-owners? 2. Whether the appellants-plaintiffs have proved the will Ex.PB to be the last and final will of deceased Shrada Ram and the will alleged to have been deceased in favour of the respondents-defendants stood cancelled by virtue of Ex.PB?” 3 Mr. G.C. Gupta, Senior Advocate has strenuously argued that the judgments and decrees are not sustainable. His precise contention was that the will dated 3.2.1991 has been executed by Sh. Sarda Ram in accordance with law and the findings recorded by both the courts to the contrary are liable to be set aside by this Court. His further contention was that till the suit land is not partitioned his clients could not be evicted. Mr. Vinod Gupta, Advocate has supported the judgments and decrees passed by both the courts below. I have heard the learned counsel for the parties and perused the record carefully. Since both the substantial questions of law are inter-linked and inter connected, therefore, the same are being taken up together for determination to avoid repetition of discussion of the evidence. Few facts are not in dispute. The earlier will executed by Sh. Sarda Ram in favour of the defendant is dated 8.10.1990. The mutation was attested on 16.8.1991 by the Assistant Collector IInd Grade, Pachhad. The alleged will executed in favour of the plaintiffs by Sh. Sarda Ram is dated 3.2.1991. The testator died on 19.3.1991. The case of the plaintiff was that deceased Sarda Ram was being looked after and served by them. He used to remain unwell. He also gifted 23 bighas of land in the year 1973 to them through registered gift deed dated 31.1.1973. According to them the will executed in their favour by Sh. Sarda Ram on 3.2.1991 is valid and the will executed in favour of the defendants by Sarda Ram on 8.10.1990 was illegal. The will dated 3.2.1991 is Ex.PA. The will executed on 8.10.1990 is a registered will. The age of the testator in this will is mentioned as 72 years. However, in the will Ex.PA, the age of the testator is 62 years. The will dated 3.2.1991 has been scribed by Sh. Jagat Ram, who is one of the plaintiffs and beneficiary of 4 the will. PW-1 Kishan Lal is the father of the plaintiffs. PW-4 Jeet Singh who is a marginal witness has admitted that he is in litigation with one of the defendants in Panchayat. His house is situated at a distance of about five kilometers. The plaintiffs have not produced another independent witness Ram Swaroop. PW-1 Kishan Lal has testified that Ram Swaroop, marginal witness of the will dated 3.2.1991 was not invited by the parties but he had come of his own to the testator. According to him Jeet Singh witness was called by Ram Swaroop. However, PW-3 Jagat Ram has deposed that Ram Swarup was called by the testator himself. He has admitted his close relation with Ram Swarup. He has further admitted that the last rites of Sh. Sarda Ram were performed by the defendants. He has admitted that he and his father are the bonafide residents of Haryana. He has deposed that he and his other family members have gone to take food immediately after the body of Sarda Ram was consigned to flames. It is strange that the plaintiffs and other members of the family would leave the cremation ground to take the food. This behaviour of the plaintiffs is unusual. If they had been taking care of Sarda Ram, they ought to remain at the cremation ground and were not supposed to leave the cremation ground for taking their meals. It is difficult to comprehend that the person who was seriously ill makes such recital as has been incorporated in the will. One of the witnesses has admitted that deceased came to him about 5-6 months prior to writing of the will and claimed that he remained with defendants for a period18-20 days. The will has been written on 8.10.1990 and in case his statement is believed that at the time of writing of the will, the deceased was not residing with the defendants but with the plaintiffs, there was no occasion for the defendants to offer liquor and sedative by the defendants to Sarda Ram. It is also evident from the bare reading of the will dated 3.2.1991 that the words ‘the will was read over and 5 explained” have been squeezed into before the words witness. The gap between the last two lines is narrow as compared to the rest of the document. The plaintiffs have failed to prove the execution of the will dated 3.2.1991. There are suspicious circumstances surrounding the execution of the will, as noticed above. The important suspicious circumstance while executing the will dated 3.2.1991 is that the interests shown by one of the plaintiffs at the time of execution of the will. The will has been scribed by one of the plaintiffs. There are material contradictions in the statements of the PWs in the manner in which Sh. Ram Swaroop was called at the time of the execution of the will. The age of the testator in the earlier will dated 8.10.1990 as mentioned is 72 years, however, in the will dated 3.2.1991 the age of the testator as mentioned is 62 years. There is ample evidence on record to suggest that the plaintiffs were not looking after Sh. Sarda Ram. The last rites of deceased Sarda Ram were performed by the defendants. In fact, the plaintiffs had left the cremation ground according to their own decision for taking meals. One of the witnesses has admitted his enmity with the defendants. The plaintiffs have failed to establish that the earlier will dated 8.10.1990 was executed under the influence of liquor. The learned courts below have come to a just conclusion that the will in question dated 3.2.1991 has not been proved in accordance with law. Consequently, in view of the aforesaid reasoning, there is no merit in this Regular Second Appeal and the same is dismissed. There will, however, be no order as to costs. 6.1.2009 (Rajiv Sharma ), J. *awasthi*