IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. F.A.O.(S. Act) No.: 84 of 2004. Reserved on: 04.12.2008. Decided on: 06.01.2009. Nand Lal … … Appellant. Versus Vidya Devi & Others. … … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Appellant: Mr. Bhupender Gupta, Senior Advocate with Mr. Ajeet Jaswal, Advocate. For Respondents No.1 (a) to 1(g): Mr. K.D. Sood, Advocate. Rajiv Sharma, Judge: The present appeal is directed against the order passed by learned District Judge, Bilaspur dated 1st March, 2004 in Succession Petition No.1/2003/2002. Brief facts necessary for the adjudication of this appeal are that the predecessor-in-interest of respondents, Shri Sita Ram filed a petition under Section 276 of the Indian Succession Act, 1925 for grant of probate. It was stated that Smt. Santi daughter of Shri Hiru had been owner in possession of land described in Khata/Khatauni Nos. 38/38 and 37/37, Khasra Nos. 182/139, 17 and 96 as per jamabandi for the year Whether reporters of local papers may be allowed to see the judgment? No. - 2 - 1996-97 situated in revenue estates Manan and Kanjuyota, Pargana and Tehsil Sadar, District Bilaspur. Earlier the property in dispute was owned and possessed by Shri Santu. He was brother of Smt. Santi. He died on 26.3.1983. After the death of Shri Santu, the land in dispute had devolved on Smt. Santi by succession. She executed the last and final Will Ex.P-XX of her estate in favour of Shri Sita Ram on 8.5.1984. After the death of Smt. Santi, Shri Sita Ram had become owner in possession of the land in dispute. The present appellant resisted the petition on the ground that Shri Sita Ram was not legal heir of Smt. Santi and she had not executed any Will in his favour on 8.5.1984. The learned District Judge, Bilaspur granted probate of the estate of Smt. Santi on the strength of registered Will Ex.P-XX in favour of Shri Sita Ram. The present F.A.O. is directed against order dated 1.3.2004. Mr. Bhupender Gupta, learned Senior Advocate has strenuously argued that order dated 1.3.2004 is not sustainable. He then contended that original Will dated 8.5.1984 was not annexed with the petition. He also contended that the petition was not maintainable under Section 222 of the Indian Succession Act, 1925. He lastly contended that the learned District Judge has ignored the earlier Will executed in favour of Shri Chandu Ram by Shri Santu, Ex.D-X, dated 11.8.1980. Mr. Kapil Dev Sood has supported the order passed by learned District Judge. I have heard the learned counsel for the parties and perused the record carefully. Shri Santu had died on 26.3.1983. His estate had devolved on his sister Smt. Santi by inheritance. She has executed Will in favour of Shri Sita Ram on 8.5.1984. PW-1, Shri Sita Ram has deposed that the land in dispute was owned and possessed by Shri Santu. His sister, Smt. Santi inherited the land after the death of Shri Santu. Smt. Santi was unmarried. She executed Will Ex.P-XX in his favour. This Will was - 3 - registered with the Sub-Registrar. He had earlier filed petition for probate which was permitted to be withdrawn on 7.12.1999. PW-2, Smt. Uma Gupta is Registration Clerk of the office of Sub-Registrar. She has produced the original registration book. The Sub-Registrar had attested and registered the Will Ex.P-XX as per registration book (Ex.PW-1/A). Shri Amar Nath is the Deed-Writer. He has deposed that he was well conversant with the handwriting of Shri Harbans Singh, Deed Writer. The Will was scribed by Shri Harbans Singh, Deed Writer. He has died long back. PW-4, Shri Piar Singh is son of Shri Sukh Ram. Shri Sukh Ram has attested the Will. He has died in the year 1997. Shri Piar Singh has identified the signatures of his father. PW-6, Shri Roop Lal has deposed that his father Shri Balak Ram has died in the year 1995- 96. Shri Balak Ram had attested the Will. Shri Roop Lal has identified the signatures of his father Shri Balak Ram on the Will. PW-5, Shri K.L. Bekta, Tehsildar/Sub-Registrar had attested and registered the Will. He has deposed that Smt. Santi was identified by Shri Anant Ram, Superintendent before him. He personally knew Shri Anant Ram, Superintendent of the office of District Education office. Shri Nand Lal has appeared as RW-1. He had deposed that the land in dispute was owned and possessed by Shri Santu. He executed a Will on 11.8.1980 in favour of Shri Chandu (Ex.D-X). RW-2, Shri Varinder Kumar had attested the Will Ex.RW-2/A of Shri Balak Ram on 10.7.1989. RW-3, Shri Dev Raj is son of Shri Balak Ram. He had deposed that his father executed his last and final Will on 10.7.1989. Shri Chet Ram, RW-4 has deposed that he knew Shri Balak Ram son of Shri Sadhu. According to him Shri Balak Ram was stated to be illiterate. He was not in a position to sign any document. What emerges from the oral evidence led by the parties, is that the Will was executed by Smt. Santi in favour of Shri Sita Ram on - 4 - 8.5.1984. It was registered with the Sub-Registrar. The Will was scribed by Shri Harbans Singh. It was attested by Shri Sukh Ram and Shri Balak Ram. Signatures of Shri Sukh Ram and Shri Balak Ram have been identified by Shri Piar Singh, PW-4 and Shri Roop Lal, PW-6. PW-5 had deposed that he had read over and explained the contents of Will Ex.P-XX (PW-1/A) to Smt. Santi, testatrix. She had admitted the Will to be correct and has put her thumb mark on the same in the presence of Sub-Registrar. She was identified by Shri Anant Ram. There are no suspicious circumstances surrounding the execution of Will in the present case. The same has been executed by Smt. Santi in favour of Shri Sita Ram on 8.5.1984. It is a registered Will. Mr. Gupta has placed strong reliance upon Ex.D-X. It is the Will dated 11.8.1980 executed by Shri Santu in favour of Shri Chandu, who is father of RW-1, Shri Nand Lal. This Will was rejected by the trial Court and the first appellate Court. The regular second appeal No.402 of 1989, titled Chandu versus Santi was also dismissed by this Court on 12.9.1994. Smt. Santi was treated as legal heir of Shri Santu and owner in possession of the land in dispute. Consequently, the appellant Shri Nand Lal cannot be permitted to claim ownership and possession of land in dispute on the strength of Will Ex.D-X. The statements of RW-2, RW- 3 and DW-4 inspire no confidence. Shri Balak Ram was an Ex-Army personnel. His signatures have been identified by his son Shri Roop Lal (PW-6). He has deposed that his father had been signing the documents. The plea of Mr. Gupta that the second petition was not maintainable, merits rejection. The earlier petition was permitted to be withdrawn by the learned District Judge vide order 7.12.1999 with liberty to file fresh petition on the same cause of action. There is no merit in the submission of Mr. Gupta that since the original Will has not been - 5 - annexed with the plaint, probate could not be granted in favour of Shri Sita Ram. It is evident from the record that certified/attested copy of the Will was produced and proved before the learned District Judge. It is not necessary to annex the original copy with the plaint. In the present case photo copy of the Will was filed, however, during the trial, certified copy has been placed and proved. PW-1 Shri Sita Ram has produced the copy of Will Ex.PW-1/A. Smt. Uma Gupta has deposed that Ex.PW-1/A is the copy of original registration book. According to her, the Sub- Registrar had attested the Will Ex.P-XX as per registration book (copy Ex.PW-1/A). The Tehsildar/Sub-Registrar, Shri K.L. Bekta had deposed that he had attested and registered the Will. He had read over the contents of the Will to the testatrix, Smt. Santi. She had understood the contents of the same and thereafter put her thumb impression on it. In Smt. Rajrani Sehgal v. Dr. Parshottam Lal and others, A.I.R. 1992, Delhi 134 the learned Single Judge has held that the petition filed under Section 276 does not suffer from infirmity if the certified copy of the Will is annexed with the petition. The learned Single Judge has held as under (pp 144-145, paras 50 and 51):- “Before concluding, I would like to deal with a technical objection raised by learned counsel for the appellant as to the original will having not been filed with the petition under Sections 276/278 of the Act. It is in evidence that the original will was not in possession of the petitioner nor he had any access to it and even no knowledge of the fact as to in whose possession it was. He did his next best, and applied for a certified copy to the Sub-Registrar’s office and after obtaining the same applied for probate, annexing the said copy with the petition. The objection raised by Mr. Lonial seems to be misconceived, based on a misreading of provisions of law because all that Section 276 of the Act requires is that the application - 6 - for probate or letters of administration shall be made with the will annexed. This will could be the original will or the certified copy from the Sub-Registrar’s office, which has to be treated on an equal footing with the original because of the provisions of Section 62 of the Indian Evidence Act. It is a matter for judicial notice that the copy, which is filed before the Sub-Registrar is the one prepared at the same time as the original, and bears signatures of the testator, and the attesting witnesses, and when a certified copy is given of such a document, it is to be treated as good as original. As noted by Sarkar in Law of Evidence, 13th edition, Volume I, page 631 that in cases where copies of original documents are made under public authority, these rank as primary evidence. He has given illustration of the probate of a will. Certified copy of the will is also prepared under official authority, and prepared from the will filed in original containing signatures of the testator and the attesting witnesses, and can certainly be treated as primary evidence. Moreover, the irregularity, if any, had been cured at the initial stage of the proceedings because the learned District Judge got the certified copy produced from the office of the Sub-Registrar and have it placed on record after the clerk from that office stated that he had brought the record maintained in the office of the Sub-Registrar, Kashmere Gate and that register contained a copy of the will signed by the testator and the attesting witnesses and that it was equivalent to the original. From the very wordings of Section 276 of the Act, it cannot be said that the failure to annex the original will would be fatal. The defect, if any, had been cured and condoned by the District Judge when he received the certified copy from the Sub-Registrar’s office, after satisfying that a duly signed and attested copy of the will existed in the records of the Sub- - 7 - Registrar and was as good as primary evidence of the original. Even the law contemplates grant of probate in certain cases as contained in Sections 237 to 239 of the Act, in the absence of original will. The failure, therefore, to annex the will in original with the probate petition would not vitiate the proceedings, nor invalidate grant of letters of administration.” In the present case the predecessor-in-interest of the respondents, Shri Sita Ram though had annexed the photo copy initially with the plaint, however, the Will Ex.P-XX was duly proved during the trial vide Ex.PW-1/A. Mr. Gupta has also faintly argued that the petition is not maintainable in view of the provision of Section 222 of Indian Succession Act, 1925. It is not necessary that the name of executor has to be mentioned in the Will specifically. It can be gathered by implication. I have gone through the Will and I am of the firm opinion that Shri Sita Ram was competent to file the petition under Section 276 of the Indian Succession Act, 1925. Consequently, there is no merit in this appeal and the same is dismissed. There shall, however, be no order as to costs. January 06, 2009. (Rajiv Sharma), (sck) Judge.