IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.149/1997 Reserved on.: 30.5.2008 Decided on.20.6.2008 Fandi Ram. …Appellant. Versus Badru Devi and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the appellant : Mr. Ashwani Kumar Sharma. Advocate. For the respondents Mr. B.K. Malhotra, Advocate. Rajiv Sharma, J. A challenge has been laid by way of this Regular Second Appeal to the judgment and decree dated 5.3.1997 passed by the learned Additional District Judge, Mandi in civil appeal No. 118 of 1988. The brief facts necessary for the adjudication of this Regular Second Appeal are that the appellant-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake) filed a suit for declaration and possession of the land owned by Sh. Manglu (deceased) on the ground that the plaintiff, defendant and proforma defendants were the sons, daughters and widow of late Sh. Manglu son of Gurdhian son of Dassu and that Sh. Manglu died in the month of August, 1986 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 and he bequeathed his entire property in favour of his son Krishan Chand through will dated 6.4.1973. The predecessor-in-interest of respondents-defendants (hereinafter referred to as ‘the defendant’ for convenience sake) resisted and contested the suit filed by the plaintiff. The trial court had framed the issues on 3.1.1987. The trial court dismissed the suit on 25.4.1988. The plaintiff filed an appeal against the judgment and decree dated 25.4.1988 before the learned Additional District Judge Mandi. The learned Additional District Judge, Mandi allowed the application under order 6 Rule 17 of the Code of Civil procedure preferred by the plaintiff and the impugned judgment and decree were set aside and the matter was remanded to the trial court. The defendant Sh. Krishan Chand approached this Court by way of FAO (Ord) No. 188 of 1994 to assail order dated 3.3.1994. This Court vide judgment dated 17th August, 1995 accepted the appeal and modified the order in the following terms: “Civil Suit No. 58 of 1986 is remanded to the trial court for deciding issue No.3 afresh by giving opportunity to the appellant-defendant and proforma respondents-defendants to file written statement and admit/deny the documents filed in support of the amended plaint. Thereafter, the trial court, if necessary, will give opportunity to the parties to adduce additional evidence on issue No.3 and record its findings thereon and return the case file to the Additional District Judge, Mandi, for deciding Civil Appeal No. 118 of 1988 on merits.” 3 In sequel to the judgment dated 17th August, 1995, the parties appeared before the trial court and the trial court gave its findings on the following issues: “Whether the impugned will by late Shri Manglu is in respect of ancestral property, if so, its effect? The trial court conclusively held in its order dated 14.6.1996 that the plaintiff has miserably failed to prove the mode of transmission of the property in case of plaintiff and his predecessor- in-interest. Thus, the issue was decided against the plaintiff. The plaintiff assailed the judgment and decree of the trial court dated 25.4.1988 and the order of the trial court dated 14.6.1996 on issue No.3 before the learned Additional District Judge, Mandi. The learned Additional District Judge, Mandi framed the following points for determination: “1. Whether the judgment and decree of the trial Court dated 25.4.88 are liable to be set aside? 2. Whether the findings of the trial Court dated 14.6.96 on issue No.3 are liable to be set aside? 3. Final order.” The learned Additional District Judge recorded the following findings: “Point No.1. No. Point No.2. No. Point No.3 Appeal dismissed as per operative part of the judgment.” 4 The learned Additional District Judge dismissed the appeal preferred by the plaintiff on 5.3.1997. This Regular Second Appeal has been preferred against the judgment and decree passed by the learned Additional District Judge dated 5.3.1997. The Regular Second Appeal was admitted on the following substantial questions of law: 1. Whether the exclusion of son from the ‘Will’ by the testator who divorced his wife and bequeathed the property in favour of another son in connivance that his 2nd wife and her daughter constitutes suspicious circumstance attending the ‘Will”, if so, its effect? 2. What is the effect of documentary evidence viz. Copies of Jamabandi for the year 1927-28 Ex.P/7 and Ex.P/8, copies of Missal Haqiat Bandobast Jadid Ex.PW-1/A to PW-1/C and copy of mutation Ex. P/6 to prove the ancestral character of the property in the present case? The respondent Sh. Krishan Chand died during the pendency of this Regular Second Appeal and his legal heirs were brought on record by this Court vide order dated 15.7.1998. Mr. Ashwani Sharma, Advocate had strenuously argued that Sh. Manglu could not bequeath the property in favour of predecessor-in-interest of defendants 1-A to 1-E i.e. Krishan Chand. He also argued that Sh. Manglu could not bequeath the property by way of will since it was ancestral property. Mr. B.K. Malhotra, Advocate had supported the judgment and decree dated 5.3.1997. 5 I have heard the learned counsel for the parties and perused the record carefully. Mr. Ashwani Sharma, Advocate had strenuously argued that the will in question is shrouded with suspicious circumstances and the same has not been executed by Sh. Manglu in accordance with law. Plaintiff Fandi Ram has appeared as PW-1. He has only stated in his statement that the will has been obtained by the predecessor- in-interest of the defendants No.1-A to 1-E in a fraudulent manner. PW-2 Chuni Lal, PW-3 Padamu, PW-4 Shankar and PW-5 Dahlu have not stated anything about the manner in which the will in question has been executed. Defendant Sh. Krishan Chand had appeared as DW-1. He has deposed that the will has been executed by his father in accordance with law and the same was registered. He has stated that the contents of the will were read over to his father by the document writer and his father had understood the contents of the same and thereafter put his thumb impression. He has further stated that his father was keeping good health and was mentally alert. DW-2 Badri Dass has scribed the will. He has stated that the will was scribed at the instance of Sh. Manglu. He has further deposed that he has read over the contents of the will to Sh. Manglu and thereafter he put his thumb impression. DW-3 Chander Mani was the witness to the will and he has identified his signatures on the will. He has supported the version of DW-1 and DW-2, the manner in which the will was executed by Sh. Manglu in favour of Sh. Krishan Chand. DW-4 Duni Chand has also signed the will as a witness. He has stated that the Sub Registrar has read 6 over the will to Sh. Manglu and only thereafter Sh. Manglu put his thumb impression. In view of this overwhelming evidence produced by the defendant, the veracity of will in question cannot be doubted. The will has been executed in accordance with law. The defendant had produced the scribe and witnesses to prove the genuineness of the will. It cannot be presumed that exclusion of the son from the will by the testator, who divorced his wife and bequeathed the property in favour of another son, will constitute suspicious circumstance. The plaintiff has failed to prove that the document i.e. will is a forged document. Now, the Court has to address the second question of law. PW-1 Fandi Ram has stated that the property in the hand of Manglu was ancestral property. PW-3 Padamu has also stated that the property in question was ancestral property in nature. PW-4 Shankar has also stated that the property in question was ancestral property. PW-5 Dahlu has also supported the version of PW-1, PW-3 and PW-4. However, these witnesses have not stated from whom Sh. Manglu had inherited the said property. The plaintiff has failed to prove that Khata Khatauni and Khasra numbers as mentioned in Missal Haquiat Bandibast Jadid Ex.PW-1/A to Ex.PW-1/C and Jamabandis for the year 1981-82 Ex.PW-1/E to Ex.PW-1/F are the same which were depicted in the jamabandi for the year 1928-29 i.e. Ex.P-7 and P-8 as well as the mutation Ex.P-6. The plaintiff has not produced any Revenue Officer to connect these exhibits. Though Chattar Singh has been examined by the plaintiff, but he is not a Revenue Officer. The plaintiff has failed to prove that 7 the land in dispute was owned by any ancestor of plaintiff and Manglu and further that Manglu had got it by inheritance. Consequently, it is held that the plaintiff has failed to prove that the land in will Ex.PW-1/A is ancestral property. The trial court and the first appellate court have correctly appreciated the oral as well as documentary evidence to come to a just conclusion that the property in question is not an ancestral property. In view of the above discussion, there is no merit in the appeal and the same is dismissed. There shall be no order as to costs. (Rajiv Sharma), Judge June 20, 2008 *Awasthi*