IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.589 of 2000 with RSA No. 80 of 2001. Judgment reserved on 19th October, 2010. Date of Decision: 24th November, 2010. _______________________________________________________ 1. RSA No. 589 of 2000. Shri Dhani Ram and another. ….. Appellants. Versus Shri Amar Singh and others …. Respondents. For the appellants : Ms. Seema Guleria, Advocate. For respondents 1, 5 & 7: Mr. K.D. Sood, Advocate. None for other respondents. 2. RSA No.80 of 2001. Shri Amar Singh and others … Appellants. Versus Shri Dhani Ram and another ..Respondents. For the appellants : Mr. K.D. Sood, Advocate. For respondents : Ms. Seema Guleria, Advocate. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes ____________________________________________________ SURINDER SINGH, J. Both these appeals have arisen from a common judgment passed in Civil Appeal No.68 of 1992 and Cross-Objections No.5 of 1993 decided on 25.9.2000, hence taken up together for decision. Whether reporters of the Local papers are allowed to see the judgment? - 2 - 2. RSA 589 of 2000 directed by the plaintiffs having failed in both the Courts below, was admitted on 6.12.2000 on the following questions of law: 1. Whether a party can file a fresh written statement on different grounds when the written statement by its predecessor is already on record and issue on the basis of which has already been struck? 2. Whether a party after remand of the case can set up a new case and lead fresh evidence contrary to earlier pleadings? 3. Whether the opinion of expert obtained by the Court, without setting aside the same, can again obtain fresh opinion, when the earlier opinion has been believed by the Court? 4. When requirement of Section 63 of Indian Succession Act has been fulfilled by a party in proof of Will, whether the Will can only be disbelieved/rejected on the basis of expert opinion? 3. RSA No.80 of 2001 filed by the defendants was admitted on the following questions of law: 1. Whether the Will Ex.PW-2/A executed by Dhian Singh on 28.10.1976 is shrouded with suspicious circumstances and the due execution thereof was not proved? 2. Whether in view of the fact that the plaintiff has forged the Will dated 5.11.1974 by Narainoo, and Dhian Singh was stated to have executed the Will at the age of 30 years when he was alleged to be enjoying perfect health have been missing for a long time, the suspicious circumstances attached to the said Will were explained and the testimonies of PW-2 P.R. Sharma and PW-3 Rattan Lal have been misread and misconstrued which has vitiated the findings? 3. Whether in view of the fact the appellants were admittedly co-sharers in possession of the property, the - 3 - plaintiff was entitled to a decree for injunction against the appellants? 4. As already stated above, in RSA No.589 of 2000, appellants were the plaintiffs and respondent Shankari Devi was the defendant, who died during the proceedings of the case before the learned trial Court and her legal heirs were brought on record. In RSA No.80 of 2001, appellants were the defendants and respondents were the plaintiffs. Now parties shall be addressed as such as they were before the learned trial Court. 4. The Will Ext.DW-4/A was allegedly executed by Narainu, the father of the plaintiffs and defendant Shankari (deceased) in favour of the plaintiffs and the other Will Ext.PW-2/A executed in favour of plaintiffs by their brother Dhian Singh. Both these Wills are in question. The facts would become more clear by the following pedigree table: Narainu (Deceased) Dhani Ram (Plaintiff No.1) Shanker (Plaintiff No.2) Dhian Singh (Dead) Shankri Devi [Deceased- defendant. Respondents in appeal RSA No.589/2000 are her LRs} - 4 - 5. The plaintiffs filed a suit seeking declaration to the effect that they are owners in possession of the suit land with a consequential relief of injunction against Shankri (deceased), defendant pleading that Narainu, their father died on 15.11.1974 leaving behind plaintiffs and Dhian Singh (now deceased) and their sister defendant Shankri. They averred that said Narainu had executed a valid Will in favour of his sons aforesaid in presence of Munshi Ram and Dandu, attesting witnesses, but the defendant got attested Mutation No.62 dated 31.3.1975 in her favour and in favour of all brothers in their absence. They assailed it in appeal before the Collector, Sub Division, Ghumarwin and asserted Will of Narainu. Appeal was allowed and the case was remanded back for fresh decision. The mutation remained undecided. On 22.12.1977, the plaintiffs applied for the registration of the Will before the Sub Registrar, Ghumarwin, the same was rejected on 17.9.1981 on the ground that it was not scribed by a document-writer. When the matter was pending before the Sub Registrar, their third brother Dhian Singh had also executed a Will Ext.PW-2/A in favour of the plaintiffs on 28.10.1976 in the presence of Rattan Lal and Bhagat Ram, attesting witnesses. He died at Jawalaji and after - 5 - his death they also applied for the registration of the said Will, which also remained pending. It was asserted by the plaintiffs that both the Wills were legally and factually correct. Thus they sought the declaration to the effect that they are owners in possession of the suit land with consequential relief of injunction against the defendant. 6. Smt. Shankri Devi died during the pendency of the suit before the learned trial Court and her legal representatives alongwith one Shri Ram Singh son of Fina were brought on record. The suit was originally resisted and contested by the sole defendant Shankri questioning the maintainability of the suit, mis-joinder of causes of actions, valuation and also limitation by way of preliminary objections. On merits, both the Wills in questions were assailed on the grounds of being collusive, false and fictitious documents. Said Shri Narainu is stated to have died intestate, thus claimed her share in the property. 7. On the pleadings of the parties, following issues were framed: 1. Whether Shri Narainu executed a valid Will in favour of his sons depriving his daughter (Shankri) of his property? .. OPP. 2. If issue No.1 is proved in favour of the plaintiffs whether Dhyan Singh executed any Will in favour of the plaintiffs as alleged? .. OPP. 3. Whether the plaintiffs are in possession of the suit land as surviving heirs of Narainu and Dhayan Singh? ..OPP. - 6 - 4. Whether the disputed property of Narainu has wrongly been mutated in the name of defendant? ..OPP. 5. Whether the suit is bad for mis-joinder of causes of action? ..OPD. 6. Whether the property has not been properly arranged for the purchase of court fee and jurisdiction? ..OPD. 7. Whether the suit is time-barred? ..OPD. 8. Whether the Will dated 5.11.1974 executed by Narainu is forged, fictitious as alleged? ..OPD. 9. Whether Dhyan Singh is still alive and missing if so whether the Will dated 28.10.1976 is in operative as alleged? .. OPD. 10. Whether the Will dated 5.11.1974 executed by Shri Narainu is fraudulent and fictitious as alleged? ..OPD. 11. Relief. 8. After the complete trial, vide judgment dated 25.8.1987 the learned trial Court held both the Wills aforesaid as valid documents, as such decreed the suit of the plaintiffs in toto. 9. Feeling aggrieved by the impugned judgment and decree Civil Appeal No.84 of 1987 was filed by Amar Singh son of Smt. Shankari against the plaintiffs impleading the other legal representatives as proforma respondents. Vide judgment dated 9.12.1991 the appeal was accepted and the impugned judgment and decree were set aside on the ground that legal representatives of deceased Shankri, namely Parkash Chand, Prem Lal and Champa Devi were minors and they were not properly represented and the case was remanded back to the learned trial Court for their - 7 - proper representation and thereafter conduct the further proceedings. Since the aforesaid minors had attained the age of majority, therefore, vide order dated 14.2.1992 they were allowed to contest the suit in their independent capacity. They filed independent written statement and issue was struck with respect to the Will dated 5.11.1974 executed by Narainu. The defendants led their evidence and an application was also moved for the comparison of thumb impression of deceased Narainu which was allowed vide detailed order dated 31.3.1992. Accordingly, reference was made to the Finger Print Bureau for report after comparing with the admitted thumb impression of Narainu on the ‘Karwai’ register and also on the Will in question. 10. After the receipt of the report the matter was heard. The Will dated 5.11.1974 executed by Narainu was held to be invalid and the Will dated 28.10.1976 executed by Dhian Singh was upheld as a genuine document, as such the suit of the plaintiffs was partly decreed. 11. The plaintiffs filed an appeal against the dismissal of their suit partly on the basis of Will executed by Narainu in their favour and defendants also filed Cross-Objections before the first appellate Court against the acceptance of the Will of Dhian Singh in favour of - 8 - the plaintiffs. Vide judgment dated 25.9.2000 the appeal as well as the Cross-Objections were dismissed on the ground that the Will dated 5.11.1974 alleged to have been executed by Narainu in favour of the plaintiffs and their brother Dhian Singh is shrouded by suspicious circumstances. Also holding that Dhian Singh had died and he had executed a valid Will on 28.10.1976 in favour of the plaintiffs during his life time. Consequently, the appeal filed by the plaintiffs and the Cross-Objections were dismissed. As such, both the parties felt aggrieved by the impugned judgment and decree, thus filed the separate appeals which have been taken up together for its decision which were admitted on the above substantial questions of law. 12. I have heard learned Counsel for the parties and have carefully examined the record. 13. It is a settled law that in order to hold a document to be a Will, it has to be proved that the same is in conformity with the provisions as regards the execution and attestation as provided under the law. 14. Section 63 of the India Succession Act lays down the formalities to be observed in execution and attestation of a Will, whereas Section 68 of the Indian Evidence Act, 1872, forbids the using of a document which is required by law to be attested as evidence until - 9 - at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting alive. Unlike other documents the Will speaks from the death of the testator, the marker of the Will is never available for deposing as to the circumstances in which the Will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last Will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the Will. Cases in which the execution of the Will is surrounded by suspicious circumstances stand on a different footing. It is equally settled that the suspicion cannot be removed by mere assertion of the propounder that the Will bears the signature of the testator or that the testator was in sound and disposing state of mind and memory at the time when the Will was made, or that those like wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reason for excluding them. The presence of the suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the Will excite the - 10 - suspicion, the propounder must remove all legitimate suspicion before the document can be accepted as the last Will of the testator. It is in connection with Wills the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved that test emphasizes that in determining the question as to whether an instrument produced before the Court is the last Will of the testator, the Court is called upon to decide a solemn question and by reason of suspicious circumstances the Will has been validly executed by the testator. Further, if a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the Will, may raise a doubt as to whether the testator was acting of his own free will, then it is part of the initial onus of the propounder to remove all reasonable doubts in the matter. 15. The test laid down by the Apex Court in V. Venkatachala Iyenagar v. B.N. Thimmajamma, AIR 1959 SC 443, is being constantly followed till date. (Also see Rani Purnima Devi v. Kumar Khagendra Narayan Deb, AIR 1962 SC 567, Shahsi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529, Chandra Rambux v. Champabai AIR 1965 SC 354, Surendra Pal v. (Dr.) (Mrs.) Saraswati Arora, AIR 1974 SC 1999, (Smt.) Jaswant Kaur v. (Smt.) Amrit Kaur, AIR 1977 SC 74, Rabindera Nath - 11 - Mukherjee and another v. Panchanan Banerjee (dead) through his LRs., AIR 1995 SC 1684 etc). 16. Against the aforesaid backdrop and settled principle of law, both the Wills are required to be tested on the facts brought on record in evidence. 17. The Will of Narainu which is alleged to have been executed on 5.11.1974 in favour of his sons is sought to be proved by the plaintiffs by examining PW4 Ram Singh, Scribe of the Will and PW5 Munshi Ram, attesting witness. Another witness is Dandu who is alleged to have put his thumb impression was not examined. 18. During the trial of the case the defendants had disputed the thumb impression of Narainu on the Will aforesaid. The learned trial Court on the application of the defendants had sent the Will to the Director, Finger Print Bureau, Phillaur for its comparison with admitted documents Exts.DW5/B, DW5/D, DW5/E and DW5/F proved by DW5 Karam Singh. These documents consist of the resolutions passed in his presence during the consolidation proceedings in his capacity as Tehsildar-cum-Consolidation Officer during the period 21.8.1957 to June, 1960. At that time deceased Narainu was Member of the ‘Musavati Committee’. He is proved to have affixed his thumb impressions on Exts.DW5/B, - 12 - DW5/D and DW5/F in his presence on the resolutions aforesaid. This fact was also admitted by PW4 Ram Singh that Narainu was a Member of the ‘Musavati Committee’ during the consolidation proceedings. DW1 Puran Chand, President of the Musavati Committee and DW3 Har Bhaj also corroborates this version and they proved the thumb impression of the deceased on Karwai register Ext.DW5/A. Thus there remains no dispute about the existence of thumb impression of Narainu on the aforesaid documents. After the comparison of the thumb impression of deceased Narainu on the Will Ext.DW-4/A with the aforesaid documents the Finger Print Expert gave its report dated 28.4.1987, that the Will Ext.DW-4/A did not bear his thumb impression as the same were different as contained in the Will and also in the documents as aforesaid. 19. Another circumstance which goes against the propounder of the Will is that the scribe Ram Singh (PW4) and attesting witness of the Will Munshi Ram (PW5) stated that at the time of execution of the Will said Narainu was in fit state of mind/health, but admittedly, Narainu died 11 days after the alleged execution of the Will. The witnesses were procured by propounders who were also present at the time of execution of the Will. As stated by PW5 Munshi Ram, the Will was also not - 13 - produced before the revenue officer till the appeal- stage and this also raises a doubt on its genuineness. 20. Therefore, from the above it is held that even if the requirement of Section 63 of the Indian Succession Act is applied and also that the Will was proved by one of its marginal witnesses, but existence of suspicious circumstance about the non-existence of the thumb impression of Narainu on the Will and its late production renders the Will doubtful and is to be rejected. The cumulative effect of the aforesaid circumstances makes it a dubious document and the opinion of the Finger Print Bureau has to be relied upon. If this report is taken for consideration, the evidence on record also raises suspicious circumstances to which the propounder of the Will, i.e., the plaintiffs have failed to dispel. 21. The next question is whether after the remand of the case the defendants could set up a new case and lead fresh evidence contrary to the earlier pleadings, is a new point taken in the second appeal for the first time. This point was never agitated earlier before the first appellate Court. Only the challenge has been made in this appeal. In my opinion, no such plea could be taken by a party for the first time in second appeal. But otherwise also, the first appellate Court had - 14 - remanded the case back for proper representation of the minors. On attaining their age of majority they filed the separate written statement independent to their character, for which they were not bound under the law to follow the same type of defence as taken by other defendants. The learned Counsel for the plaintiffs also could not show the law to dislodge my opinion. Therefore, for the aforesaid reasons the substantial questions of law No.1 to 4 in RSA No.589 of 2000 are accordingly answered. 22. In so far as the substantial questions of law No.1 to 3 in RSA No.80 of 2001 are concerned, the defendants have assailed the Will dated 28.10.1976 alleged to have been executed by Dhian Singh in favour of the plaintiffs. 23. PW2 P.R. Sharma, Advocate, is the scribe of the Will and PW3 Rattan Lal is its attesting witness. The body of the Will is Ext.PW-2/A. PW2 P.R. Sharma stated that he had scribed the Will at the instance of Dhian Singh in the presence of Rattan Lal and Basant Ram, marginal witnesses. He had further stated that he explained the contents of the Will to the executant who after admitting its correctness put his thumb impression thereupon. This fact has been corroborated by PW3 Rattan Lal. The aforesaid Will confirms the essential - 15 - requirements of law contained in Section 63 of the Indian Succession Act and has been proved as per Section 68 of the Indian Evidence Act. 24. The case of the defendants is that Dhian Singh was found missing and he had not died. There is absolutely no iota of evidence on record that after 1976 he was seen alive anywhere. PW1 Dhani Ram testified that although Dhian Singh used to complain pain in his stomach, but he had gone to Jawalaji. Later, he was informed by the police that he had died and he was called for identification. He went there and identified him from his cloths and authenticated the death of his brother. After his death his rituals were also performed. In cross-examination he also stated that he identified the dead body by seeing his photograph but denied that he was insane and was taken to Amritsar for his treatment. But this is a suggestion put and denied and no attempt was made to prove or probablise it. PW3 Rattan Lal, marginal witness also corroborates this fact and categorically stated that Dhian Singh has died. 25. In view of above facts, the Courts below rightly concluded that the defence put by the defendants stood not proved and otherwise also he was not seen alive after the alleged execution of the Will. There are no suspicious circumstances pointed out by - 16 - the opposite party to the Will aforesaid. Therefore, the findings arrived at by both the Courts below that the Will Ext.PW-2/A executed by Dhian Singh on 28.10.1976 is genuine document. The concurrent findings of the Courts below are legal and valid. There is no misreading or misinterpretation of evidence, same are upheld and the substantial questions framed above stand accordingly answered. 26. For the reasons aforesaid, both the appeals are dismissed and parties are left to bear their own costs. November 24, 2010. (Surinder Singh), J. (rc)