IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA. No. 530 of 2000. Judgment reserved on 10.11.2010. Date of Decision:November 19,2010. _______________________________________________ Pradeep Kumar ….Appellant. Versus. Smt.Shanti Devi and others. ….Respondents. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? No. For the appellant : Mr.Bhupinder Gupta, Sr Advocate With Mr.Jai Inder, Advocate For Respondent-1. : Mr.K.D.Sood, Advocate. Dev Darshan Sud, J.(Oral). This is the plaintiff’s appeal against the concurrent findings of two courts below dismissing suit instituted for possession of ¼ th share of land and shop comprised over land bearing khata No. 64, khatauni No. 121,122, khasra No. 1968, 1969, 1970, 2304 and 2313, 5 plots measuring 182.16 sq.Mtrs. situated in Tika Bhaean, Tehsil and District Kangra. The plaintiff pleaded that Butalia Mal was co-owner in possession of the suit property which also consisted of a house and shop. He died in 1978. The plaintiff and the three defendants are her daughters who were to inherit the estate. It was pleaded that defendant No.1 respondent Santi Devi set Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 up a ‘Will’ Ext.DW1/A purported to have been executed by the deceased Butalia Mal in the year 1976 which was registered after his death after a long interval in the year 1980. Pursuant to the registration etc. of this will, order of mutation was passed which was challenged before the Commissioner. The plaintiff pleads that there is no will in existence and the will set up is fictitious and in the alternative if it is proved, it is the outcome of fraud and undue influence. It is also pleaded that no such will could have been executed by the deceased as he was not in a sound disposing state of mind and that the parties are governed by the custom of ‘Khatries’ of Hoshiarpur under which there can be no testamentary disposition. The case of the plaintiff is that in 1978 when Butalia Mal died, she was living with the children in his house and they were forcibly turned out by respondent-defendant No.1. 2. The suit was resisted by the defendants on a number of grounds. Nine issues were settled by the learned trial Court. On the crucial issues especially the issue relating to the execution of the will, the Court found against the plaintiff on the question of custom as pleaded. The court negatived the contentions reused and dismissed the suit of the plaintiff. The plaintiff appealed. The learned District Judge affirmed the findings of the courts below. The plaintiff has challenged the findings of both the courts below. This appeal was admitted by this Court on 10.11.2000 on two questions of law: 3 1.Whether there has been misreading and mis-appreciation of evidence by the two courts below with regard to execution of the Will?. 2. Whether mere registration of Will after the death of executant is a good ground to uphold the validity of the Will? 3. Both these questions are being taken up for discussion together. Although at the out set, I may observe that the first question really involves re-appreciating the entire evidence over again which exercise may not be permissible in second appeal. True, that wrong perverse findings can always be gone into in second appeal and if the court comes to the conclusion that the findings are perverse, this Court can grant appropriate relief to the appellant. 4. Learned counsel appearing for the petitioner urges that the recitals in the will Ext.DW1/A are contrary to the evidence which has been brought on record of the case. The testator was not in a sound disposing state of mind and therefore, even if the document be accepted as having been executed by the deceased, it would not govern testamentary succession to the estate of the deceased. He submits that on the day of the purported execution of the will, the testator was aged about 90 years and that by itself was a sufficient ground to presume that he was not in a sound disposing state of mind. 5. Considering issue No.5, on the question of the execution and the validity of the will, the learned trial Court holds that there is nothing un-natural about the will excluding the plaintiff. The court holds that the deceased Butalia Mal 4 died on 7.3.1978 and the parties to this litigation were his only heirs. All four of them are married by the deceased at different times. The plaintiff had tried to prove on record that the deceased was not in a sound disposing state of mind as 5/6 years prior to his death, his mental faculties were not intact and he was not in a position to take intelligent and infomed decisions. The evidence of the plaintiff was recorded on commission. She states that her father was being looked after by her and her family members before his death and she along with her family members was residing with the deceased. She submits that this was necessitated by the fact that he had lost his mental balance and in these circumstances she used to manage his business. She then states that she is the eldest daughter and Shiv Saran husband of defendant No.1 is residing at Kangra and that the parties to this suit are governed by “Jamidara” custom as applicable to ‘Khatries’ in Hoshiarpur. The Court holds that there is no evidence on the record worth the name, to show that the deceased was being rendered any help or medical aid by the plaintiff or any circumstance established to prove that the testator had lost his mental faculties. 6. The second statement is that of PW2 Prem Chand who says that the plaintiff was residing with Butila Mal and the other daughters never care for him. Assessing his evidence, the learned court finds that no reliance can be placed on his evidence as his testimony is full of contradictions. 5 7. PW3 Dhani Ram was also produced to establish this fact but he does not know how many daughters the deceased had. 8. The propounder of the will defendant No.1- respondent, examined Bal krishan who was the attesting witness and Vice President of Municipal Committee, Kangra at the time when the will was executed. He stated that he knew Butalia Mal personally and the will was scribed by Sukh Dayal which was read over to the testator, who after comprehending the nature of the disposition affixed his signatures. He also says that the other attesting witness Numberdar Bhag Singh and he thereafter singed on this will Ext.DW1/A as attesting witnesses. He appeared before the Tehsildar where it was registered and affirmed that he was one of the attesting witnesses. He and Bhag Singh DW2 had affixed signatures Ext.DW1/B before the Registering Authority. On the other aspects, both these witnesses supported the case of defendant No.1. At the time of his death, the testator was 75 years old. The court does not find any evidence with respect to forgery, undue influence or the mental incapacity of the testator to have executed a valid will. The evidence of DW2 Bhag Singh corroborates DW1 BalKishan on all material particulars. 9. On the other issue as to whether on the question of custom, the court holds not only on the insufficient proof but there was nothing on the record to show that the 6 deceased was, in fact, agriculturist. The suit was accordingly dismissed. 10. In appeal, the learned District Judge has affirmed these findings. From the reading of the statement of these witnesses, I do not find anything on the record which would show or remotely indicate that the will was the outcome of any fraud etc. Not only are the pleadings woefully inadequate but even the evidence does not establish the allegations of the appellants as fraud etc. or the mental state of the testator. On the question as to whether old age by itself is per se sufficient to hold that the testator is not possessed of a sound disposing of mind, cannot be accepted. The evidence on the record clearly indicates that the testator had participated in the execution of the will, understood its contents and then affixed his signatures. There is no evidence on the record to show that he was feeble in body or mind. 11. In these circumstances, I hold that there has been no mis-appreciation of evidence and the fact that the will was registered after the death of the testator. It is not usual to find that the normal line of succession is changed by the testator when he/she executes the will. The mere fact of the plaintiff has been excluded from the inheritance, will not by itself render it as a suspicious document. 12. In Durga Vs. Anil Kumar, (2005) 11 SCC 189, the Supreme Court holds that the testimony of the attesting witnesses cannot be brushed aside on mere conjectures. The scribe of the will is admittedly dead. There is nothing in the 7 evidence of the two attesting witnesses one of whom is the Vice President of the Municipal Committee and the second Numberdar to suggest that there was any deliberate manipulation to exclude the plaintiff. The findings of fact arrived at by both the courts below are in concord with the evidence on record. Both questions are answered against the appellant. There is, thus no merit in this appeal which is accordingly dismissed. (Dev Darshan Sud), Judge. November 19 ,2010.(R)