IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.133 of 2000. Judgment reserved on 18.8.2011. Date of Decision: 12th October, 2011. _______________________________________________________ Smt. Khinni Devi ..Appellant. Versus Shri Atma Ram and others ..Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant: Mr. Bhupender Gupta, Senior Advocate with Mr. Ajit Jaswal, Advocate. For the respondents: Mr. Rajnish Maniktala, Advocate. ____________________________________________________ SURINDER SINGH, J. The defendant is in appeal against the concurrent findings of the Courts below upholding the Will dated 17.6.1990 (Ext.PX) of Smt. Dakho Devi, alleging to be wrong, illegal, erroneous and perverse. The present Regular Second Appeal was admitted on the following questions of law: “1) Whether the courts below have wrongly, erroneously and in a perverse manner rejected the testimony of DW-6 Shri Dhani Ram, the scribe of the Will who categorically deposed that Ext.PX was not the document scribed by him? Have not the courts below wrongly assumed the jurisdiction to admit such document in evidence without proper proof of the document being authenticated and genuine? Whether reporters of the Local papers are allowed to see the judgment? - 2 - 2) Whether the secondary evidence for proving the alleged Will, such as, Exhibit PX was admissible in the manner as has been adduced by the plaintiff-respondents? Was not it incumbent for the plaintiff-respondents to have proved the loss of the original, when the Will, alleged document in original, was returned to the Plaintiff- Respondents after withdrawal of the proceedings under Section 41 and 42 filed by the Sub-Registrar beyond the prescribed period of limitation? 3) Whether both the courts below have exceeded their jurisdiction in not rendering any findings of due execution and attestation of the Will executed by the deceased in favour of the Defendant-appellant on 2.4.1976?” 2. The following pedigree table will help to know the relationship and better understanding of the facts:- Dharmouru Dakho (second wife of Dharmouru) [dead] Shri Dhar (Plaintiff- Respondent No.1) Lal Chand from first wife named Bhagwati [dead] Atma Ram (Plaintiff- Respondent No.2) Rajmal (Proforma Defendant No.2) Ajudhia D/o Dakho, she predeceased Dakho Smt. Khinni Devi (Defendant No.1) - 3 - 3. Precisely, the facts giving rise to the present appeal can be stated thus. Smt. Dakho Devi second wife of Dharmouru had one daughter Smt. Ajudhia Devi taken birth out from the loins of Dharmouru. The appellant Khinni Devi is daughter of Smt. Ajudhia, whereas Lal Chand was the son of Dharmouru from his first wife Bhagwati, who pre-deceased Dharmouru. The estate of Dharmouru after his death was inherited by Lal Chand and Dakho Devi in equal shares. Now the dispute in this appeal is about the share of Dakho Devi. 4. The case of respondents No.1 and 2, hereinafter to be referred as ‘the plaintiffs’, has been that during her life time, Smt. Dakho Devi was mostly cared and maintained by them and her daughter Smt. Khinni, after her marriage had settled down in village Henja, from where she used to visit Smt. Dakho Devi occasionally to look-after her. Quite sometime after, the plaintiffs came to know that the defendant/appellant had illegally and by exercising undue influence and under pressure obtained signatures of Smt. Dakho Devi purporting to be on some Will, which was not genuine and a validly executed document. However, Smt. Dakho died on 24.11.1990. It is alleged that thereafter defendant- - 4 - appellant got the mutation entered in her name on the basis of false and fabricated Will alleged to have been executed on 2.4.1976. It is also averred that Smt. Khinni Devi defendant never looked-after Smt. Dakho Devi for the last about 4-5 years of her death. Thus sought declaration that their Will dated 24.11.1990 in their favour and also the defendant-appellant, one of the beneficiaries being the last Will executed by Smt. Dakho, is a valid and binding document, with a consequential relief of injunction restraining defendant/appellant from causing any interference in joint possession of the parties and alternatively for possession. 5. Defendant Smt. Khinni Devi offered strong resistance to the suit and took up preliminary objections with respect to the cause of action, estoppel, valuation and also questioned the maintainability of the suit and locus-standi of the plaintiffs to file the suit. It is her case that even after her marriage she was residing in the house of Smt. Dakho as her husband was kept as “Gharjamai”. She had been looking after Smt. Dakho very well, therefore, she executed a Will dated 2.4.1976 which is a legal and genuine document and the Will dated 17.6.1990 propounded by the plaintiffs is alleged to be - 5 - false and a fabricated document, thus prayed for dismissal of suit. However, the proforma defendant did not contest the suit. 6. In replication, the plaintiffs denied the preliminary objections and reaffirmed even paras of the plaint on merit. 7. On the pleadings of the parties, the learned trial Court framed the following issues: 1) Whether deceased Dakho, executed a valid Will in favour of the plaintiffs and the defendants on 17.6.1990 as alleged? OPP. 2) Whether the Will alleged to be executed by deceased Dakho Devi in favour of defendant No.1 is illegal and under pressure and fraud as alleged? OPP. 3) Whether the plaintiffs are in possession of the suit property and are entitled to the relief of injunction as prayed for? OPP. 4) Whether the deceased had executed valid Will dated 2.4.1976 in favour of defendant No.1, as alleged? OPD. 5) Whether the plaintiffs have no locus standi and cause of action to file the suit? OPD. 6) Whether the acts and conduct of the plaintiffs is a bar to the present suit? OPD. 7) Whether the suit Is not maintainable in the present form? OPD. 8) Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD. 9) Whether defendant No.1, and her husband had been staying with deceased Dakho Devi as - 6 - Khana Damad and he served and looked after the deceased as alleged? OPD. 10) Relief. 8. After framing of the issues, the suit was adjourned for the evidence of the plaintiffs, but before examining their witnesses, an application under Section 65 of the Indian Evidence Act was moved by the plaintiffs on 17.4.1995 for allowing to produce secondary evidence in respect of their Will dated 17.6.1990, on the ground that the said Will was presented for its registration before the Sub-Registrar from where it was taken back. Thereafter, they filed the present suit, but in the meantime, original Will got lost and could not be traced. This application was resisted by the contesting defendant on the ground that the application lacks satisfactory explanation regarding loss of the Will, which was in fact required to be proved initially. On this application, vide order dated 22.6.1995, learned trial Court framed the following issues:- “1. Whether there are sufficient causes to allow the applicant/ plaintiff to lead secondary evidence, as alleged? …OPA. 2. Relief.” Thereafter the matter was listed for the evidence of the plaintiffs on the above issues, whether to allow secondary evidence or not. - 7 - 9. But, a perusal of the record shows that the plaintiff examined PW1 plaintiff Siridhar, PW2 Kartar Chand, PW3 Ram Krishan, with respect to the main issues in the suit, ignoring the above issues framed in the application under Section 65 of the Evidence Act and closed the evidence in affirmative. Thereafter, the contesting defendant also examined her four witnesses whereas PW4/A Prabhdayal Raina scribe of the Will Ext.PW4/A in favour of the defendant was got examined being an aged person by issuing the Commission. In rebuttal, plaintiff examined PW4 Khyali Ram on 6.5.1997. 10. Thus both the parties completed their evidence on the main issues and the matter was adjourned for final arguments. 11. Thereafter the case was taken up for final arguments on 4.7.1997, pertinently on that day, the trial Court noticed that the application under Section 65 of the Evidence Act was pending, thus after hearing both the parties on the said application vide order dated 24.7.1997 said application was dismissed, precisely on the ground that there was no allegation that the plaintiff had lost the original Will and even he (PW1) did not explain as to how and when the Will - 8 - was lost. Thereafter the case was fixed for final arguments on merits. 12. Feeling aggrieved and dissatisfied by the order of dismissal of their application under Section 65 of the Evidence Act, plaintiffs filed Civil Revision Petition No.299 of 1997 in the High Court. 13. The High Court vide its judgment dated 20th November, 1997 allowed the Revision Petition, impugned order was quashed and set aside. Its concluding para reads as under:- “4. After having heard the learned counsel for the parties and after going through the impugned order, I find that it was a fit case where the plaintiff should be permitted to adduce secondary evidence under Section 65 of the Indian Evidence Act. The plaintiff and his witnesses have deposed in respect of the execution of the ‘Will’. In case no such ‘Will’ was executed, the plaintiff will not get any thing. In my view, the plaintiff should not be condemned unless he is permitted to bring on record such evidence as is desired to be placed to prove the ‘Will’. The trial Court has laid lot of stress that the scribe has not been produced, who could reveal that the ‘Will’ infact was executed. In case the plaintiff is granted permission, it will be - 9 - for him to produce the scribe for that purposes. Consequently, the impugned order is quashed. The application filed by the plaintiff for leading secondary evidence is allowed. As the case is at the stage of final arguments, the plaintiff shall be granted only two opportunities to lead whatever evidence is desired to be placed on record to prove the ‘Will’ in question. If the evidence is not closed on two dates, the evidence of the plaintiff shall be deemed to be closed by an order of the Court. This shall, however, be subject to `2,000/- as costs. The case is ordered to be expedited and decided within three months from today. The revision petition is allowed in the aforesaid terms. The parties through their learned counsel are directed to appear before the trial Court on December 2, 1997 whereafter the trial Court shall proceed to dispose of the suit in the light of the observations made above. A copy of the order is directed to be sent to the trial Court forthwith and copy be also supplied to the learned counsel for the parties DASTI on usual terms.” [Emphasis mine] 14. The learned trial Court took up the matter for effective hearing on 23.12.1997, plaintiffs were - 10 - directed to deposit the cost and to file PF, list of witnesses in order to prove their Will in terms of the above judgment and the case was adjourned for 6.1.1998, on which date, Registration Clerk Trilok Chand was present, but he was not examined and the case was adjourned for 16.1.1998 for the evidence of the plaintiffs on filing PF and DM. On 16.1.1998, plaintiffs paid the cost and learned counsel for the plaintiffs stated that the evidence already on record to prove the Will be read and no fresh evidence was intended to be adduced. There was no objection on behalf of the defendant. Thereafter the case was adjourned for 4.3.1998 for the evidence of the defendant. 15. On 4.3.1998, defendant examined DW6 Dhani Ram alleged Scribe of Will Ext.PX relied upon by the plaintiffs and stated that he did not scribe of the said Will Ext.PX. He further stated that after the death of Dakho, plaintiffs had brought a piece of paper in the month of November, 1990 and had copied the contents from a written paper which was returned and no one was present there. After tendering in evidence, photocopy of the Mutation Mark-X defendant closed her evidence. 16. On considering the evidence of parties, learned trial Court decreed the suit upholding the Will - 11 - Ext.PX by looking into and appreciating the evidence of the plaintiffs already recorded earlier to the judgment of the High Court passed in Civil Revision petition. The photocopy of the Will Ext.PX was placed on record from the record of Sub-Registrar where original was presented for its registration. The plaintiffs had examined the marginal witness Kartar Chand. Plaintiff Shridhar also examined himself. He was stated to be present. He and the marginal witness have supported the execution of Will Ext.PX by Smt. Dakho which was earlier marked as Ext.P1, but got exhibited (Ext.PX) in the statement of its scribe DW6 Dhani Ram. They, i.e., the plaintiff and marginal witness testified the presence of another marginal witness Shri Jondhu Ram and also of PW3 Ram Krishan. They also stated that after the Will was executed at the instance of Dakho, it was read over and explained to her, after admitting its correctness she had appended her thumb impression in the presence of marginal witnesses which was attested by both the witnesses in her presence. The learned trial Court also put reliance on the testimony of Ram Krishan (PW3)who happened to be present and he stated that the Will Ext.PX was scribed by DW6 Dhani Ram at the instance of Smt. Dakho. All the witnesses deposed that at that time - 12 - Smt. Dakho was in a free disposing state of mind. Plaintiff Shridhar stated that they alongwith Dakho and also the defendant are residing in that house in their village and were jointly cultivating the suit land. The children of the defendant were also residing there. 17. Khinni Devi supported the Will dated 2.4.1976 Ext. PW4/A by scribed by Shri Prabhu Dayal Deed Writer, which was also registered. DW4 Onkar and DW5 Vinod Kumar identified the signatures of their respective father on the Will aforesaid as marginal witness, whereas DW6 Dhani Ram, is the scribe of Will Ext.PX. He admitted the execution of affidavit Ext.DW2/A dated 31.3.1992 obtained by the defendant prior to the filing of present suit, whereby he stated that he had copied from a written document brought by Shridhar plaintiff and he never scribed the Will of Dakho. Pertinently, he admitted that the Will Ext.PX was in his hand but denied having been written at the instance of Dakho. 18. The learned trial Court on appreciating the evidence led by the parties upheld the validity of the Will Ext.PX dated 19.6.1990 and decreed the suit of the plaintiffs. - 13 - 19. Defendant Smt. Khinni Devi challenged the aforesaid judgment and decree passed by the learned trial Court before the First Appellate Court on the grounds that the alleged Will purported to have been executed by Smt. Dakho on 17.6.1990 is per se inadmissible which was not duly proved and the learned trial Court totally discarded the observations of the High Court made vide order dated 20.11.1997, the relevant portion whereof is extracted above and that the Scribe (DW6) of the said Will in uncertain terms unequivocally denied its execution by Dakho. 20. On reappraisal of evidence, the learned First Appellate Court vide its judgment dated 21.2.2000 passed in Civil Appeal No.25-P/98 held that the testimony of DW6 Dhani Ram cannot be taken as a gospel truth as it stands negatived by the Will Ext.PX, which bears his signatures and the thumb impression of the Testatrix and the copy of the Will has come from the proper custody. It was observed that since DW6 aforesaid had hand in gloves with the contesting defendant, his testimony was rightly rejected by the learned trial Court. Further the contention that the plaintiffs had played a prominent role in the execution of the said Will was held to be an insufficient ground - 14 - to hold against its genuineness, thus, the appeal filed by the defendant was dismissed. 21. Shri Bhupender Gupta, learned Senior Advocate duly assisted by Shri Ajit Jaswal, Advocate, vehemently argued that the Courts below have acted with illegality and irregularity in taking into consideration the Will Ext.PX dated 17.6.1990 alleged to have been executed by the deceased as genuine in absence of original, whereas the earlier Will dated 2.4.1976 was the last Will solely in the name of defendant No.1, but the Will propounded by the plaintiffs is a forged and fabricated document, which stood not proved. Further that merely by granting permission to lead secondary evidence by itself would not exonerate the plaintiffs from their prime responsibility to prove the due execution and attestation of the Will Ext.PX and that the learned trial Court wrongly rejected the testimony of DW6 Dhani Ram, the alleged scribe of the said Will, which disproves the fact of execution of the said Will. It is also ventilated that the loss of the original Will has not been proved thus no secondary evidence could have been allowed. The statement of PW2 Kartar Chand cannot be taken into consideration being secondary in nature when no such permission was - 15 - accorded. Thus, the judgment and decree passed by the Courts below deserve to be set aside, also for the reason that the plaintiffs failed to bring on record such evidence as was desired to be placed to prove the “Will” and that the Courts below have misinterpreted and mis-appreciated the evidence on record. 22. Contra, Shri Rajnish Maniktala supported the judgment and decree passed by the Courts below and further ventilated that the application for secondary evidence stood allowed by the High Court and the plaintiffs’ counsel made a statement that the evidence already recorded be taken into consideration, this request was not opposed and the evidence on record was rightly and duly appreciated by the Courts below. Therefore, appeal merits dismissal. 23. I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the record. 24. Admittedly, the Will Ext.DW4/A dated 2.4.1976 of Smt. Dakho in favour of defendant- appellant is a duly registered document, whereas, subsequent Will Ex.PX dated 17.6.1990, which is claimed by the plaintiffs in favour of the parties including defendant-appellant to the extent of equal - 16 - share is an unregistered document. In Ext.PX aforesaid, there is reference of the earlier Will Ext.DW4/A in favour of the defendant and she is also a beneficiary as aforesaid. Thus, the Courts below had to examine the validity of alleged last Will Ext.PX dated 17.6.1990 propounded by the plaintiffs also in the light of the observations/ directions made by the High Court while allowing an application for secondary evidence. 25. The law relating to the manner and onus of proof and also the duty cast upon Court while dealing with a case based upon a Will has been examined in considerable detail, in several decisions of the Apex Court viz. Sovachand Baid v. The Commissioner of Income Tax: AIR 1959 SC 59, Rani Purnima Debi and another v. Kumar Khagendra Narayan Deb and another: AIR 1962 SC 567 and Shashi Kumar Banerjee and others v. Subodh Kumar Banerjee since deceased and after him his legal representatives and others: AIR 1964 SC 529. 26. By now it is well established that the onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of Will, proof of testamentary capacity and proof of the signatures of the testator, as required by - 17 - law, is sufficient to discharge the onus as held by the Apex Court in Meenakshiam Mal (dead) through LRs. and others v. Chandrasekaran and another: (2005) 1 SCC 280, where however, there are suspicious circumstances, the onus is on the propounder to explain all legitimate suspicions to the satisfaction of the Court before it accepts the Will as genuine. If propounder takes a prominent part in its execution which confers a substantial benefit on him, he is required to remove the doubt by clear and satisfactory evidence. Mere presence of motive and opportunity are not enough. 27. In the instant case, it is not a case where the Will Ext.PX confers a substantial benefit only upon the plaintiffs, rather the plaintiffs and the defendant are given equal shares. Plaintiff Shridhar examined himself and also produced and examined the marginal witness to prove the Will as per Section 68 of the Evidence Act. The mental state, testamentary capacity of Smt. Dakho has been stated to be perfect by the said witnesses. The mere fact that she was ill, bed-ridden, would not throw any doubt in its genuineness. The non-examination of the scribe is not fatal. The Apex Court in Rama Bai Padmakar (Dead) through LRs. and others v. Rukmini Bai Vishnu - 18 - Vekhande and others (2003) 8 SCC 537 observed that if one of the attesting witnesses is examined and no infirmity is found in his testimony, non-examination of the Scribe cannot be a ground to discard the Will, but in the case in hand besides examining the marginal witness even Scribe DW6 Dhani Ram produced by the defendant admitted his signatures and the Will also bore thumb mark of Smt. Dakho. The explanation given by him having prepared after the death of Dakho is highly inconvincible that too when the case was pending as stated by him. The Courts below in my opinion rightly held the genuineness of the Will Ext.PX propounded by the plaintiffs, the copy whereof had come from the proper custody. 28. To appreciate the contention raised by the learned Counsel for the defendant/appellant, I would like to say that the stage of proving the loss of original Will after the judgment/ order of the High Court supra was not required as the application for leading secondary evidence was allowed. The plaintiffs were only required to lead such evidence as was desired to prove the Will. Though they did not opt to examine the scribe, but stated before the learned trial Court to read the evidence already on record and there was - 19 - no objection on behalf of the defendant, rather defendant opted to lead her evidence. 29. Thus, in my opinion, the plaintiffs have been able to prove the due execution and attestation of the Will Ext.PX. The statement of DW6 Dhani Ram is of no effect. Though the Will Ext.PX refers to the Will Ext.PW4/A dated 2.4.1976 in favour of the defendant having been executed by Smt. Dakho but, the Will Ext.PX is proved to be a last and genuine Will executed by Smt. Dakho in favour of the plaintiffs and the defendant as well, thus the findings of the learned Courts below are correct and are accordingly upheld. The substantial questions of law are accordingly answered. 30. No other point urged or pressed. 31. For the reasons aforesaid the appeal sans merit and is accordingly dismissed. 32. Parties to bear their own costs. October 12, 2011. (Surinder Singh), (rc) Judge.