1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 427 of 2011 and CMP (M) No. 1399 of 2011 Date of Decision: 12th October, 2011 Anoop Sohan Lal Appellant Versus Vinita Sohan Lal and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellant: Mr.Imran Khan, Advocate. For the respondent: Nemo. Sanjay Karol, J. (Oral) This is the defendant No.1’s Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908. Plaintiff’s suit for declaration and permanent prohibitory injunction stands decreed by the trial Court in terms of judgment and decree dated 30.12.2006 passed by Civil Judge (Senior Division), Chamba, in Civil Suit No. 182/02. The same stands affirmed by the District Judge, Chamba Division, Chamba, H.P. in Civil Appeal No. 38 of 2007, in terms of judgment and decree dated 28.2.2009. Hence defendant No.1 has assailed the concurrent findings of facts recorded by the Courts below. Whether the reporters of Local Papers are allowed to see the Judgment? 2 2. Plaintiff Smt. Vinita Sohan Lal is daughter of Shri Samuel Sohan Lal. It is not in dispute. According to defendant No.1 Shri Snoop Sohan Lal (appellant herein), late Shri Samuel Sohan Lal executed a registered Will (Ext.DW-2/A) in his favour on 1.5.2001/8.5.2001. Shri Samuel Sohan Lal died on 25.4.2002 and by virtue of the said Will he inherited the share of Shri Samuel Sohan Lal in the suit property. On the other hand plaintiff has set up a subsequent Will (Ext.P-1) dated 4.2.2002 in terms of which, she being the daughter of Shri Samuel Sohan Lal, inherited his entire share in the suit property. Since Anoop Sohan Lal interfered with the rights, title and entitlement of the plaintiff, suit was filed. 3. Based on the pleadings of the parties, trial Court framed the following issues:- 1. Whether deceased Samuel Sohan Lal had executed a valid Will dated 4.2.2002 in favour of the plaintiff, as alleged? OPP 2. If Issue No.1 is proved in affirmative whether the plaintiff is sole legal heir entitled to succeed the estate of deceased Samuel Sohan Lal as alleged? OPP 3. If Issues No.1 and 2 are proved in affirmative, whether the plaintiff is entitled for relief of permanent prohibitory injunction? OPP 4. Whether the suit of the plaintiff is not maintainable in the present form as alleged? OPD. 3 5. Whether the plaintiff is estopped from filing the present suit by her act and conduct? OPD. 6. Whether the plaintiff has no locus standi to file the present suit? OPD. 7. Whether the plaintiff has no cause of action to file the present suit? OPD. 8. Whether deceased Samuel Sohan Lal had executed a valid registered Will in favour of defendant No.1 dated 8.5.2001 as alleged, if so, its effect? OPD. 4. Trial Court decreed the suit as under:- “As sequel to my findings on issue No.1 to 8, suit of the plaintiff succeeds and the same is hereby decreed, in favour of the plaintiff and against the defendants. It is hereby declared that plaintiff alone is entitled to the estate left by late Samuel Sohan Lal being one of the natural heir on the basis of Will dated 4.2.2002 being the last Will of deceased Samuel Sohan Lal and that defendants are restrained from interfering in the land comprising Khasra Nos. 2047, 2300, 2301, 2302, 2303, 2304, 2305, 2306, Khata Khatauni No. 779/873-874, situated at Mohalla Kashmiri Chamba Town, H.P. In the peculiar circumstances of the case, the parties are left to bear their own costs. Decree sheet be drawn and the file, after its needful be consigned to the records.” 5. Learned first appellate Court has affirmed the findings of fact recorded by the Court below and dismissed the appeal filed by Shri Anoop Sohan Lal. 4 6. It is not in dispute that Will (Ext.DW-2/A) dated 1.5.2001 was registered on 8.5.2001 with the Sub Registrar and Will (Ext.P-1) dated 4.2.2002 is unregistered. It is also not in dispute that plaintiff is the daughter of deceased Samuel Sohan Lal. It also cannot be disputed that relation between the daughter and the father were cordial and in fact daughter used to look after the father. Shri Anoop Sohan Lal is not son of Samuel Sohan Lal. The Courts below have rightly come to the conclusion that Will does not explain the reason for exclusion of the daughter from inheritance. It is not the proven case of Shri Anoop Sohan Lal that he was looking after the deceased. 7. Plaintiff has been able to prove that Will (Ext.P-1) was validly executed by Samuel Sohan Lal in a sound state of mind. There is clear, cogent and convincing evidence to the said effect. The same having been executed at a subsequent point in time obviously superseded the earlier Will (Ext.PW-2/A). 8. That apart, Courts below have themselves found the earlier Will (Ext.PW-2/A) to be shrouded by several suspicious circumstances. Benefit can be taken of the several circumstances enumerated by the first appellate Court which are reproduced hereinbelow:- “(i) The depositions of DWs 2 and 3 are entirely inconsistent and contradictory with 5 regard to the date of execution of the Will Ex.DW-2/A. As per statements of DWs 2 and 3, the Will Ex.DW-2/A was executed as well as registered on the same day, whereas it is specifically written in the last para of the Will Ex.DW-2/A that the will was executed by the testator on 1.5.2001, whereas Advocate Sham Sunder Singh signed the will on 8.5.2001 and the will was also presented for registration on 8.5.2001. So, the statements of DWs 2 and 3 that the will was executed by the testator on 8.5.2001 are not true as the will as per recitals was executed on 1.5.2001. hence the statements of DWs 2 and 3 are entirely inconsistent and contradictory with the recitals in the will Ex.DW-2/A. (ii) As per statement of DW-2, Samuel Sohan Lal was not personally known to him. As per his statement, Samuel Sohan Lal visited only once for getting Photostat copy at his shop. As per statement of DW-2, Samuel Sohan Lal visited his shop, who was alone and thereafter DW-2 introduced him to Sham Sunder Singh, Advocate. DW-2 has also stated that the will was prepared on the same day, but he signed the same after eight days. Thus, it is apparent from the statement of DW2 that his signatures on the Will were obtained after eight days and thus the Will was not drafted and executed in his presence. So the statement of DW-2 is entirely inconsistent and contradictory to the facts written in the Will Ext.DW-2/A. Hence the execution of the will in presence of DW-2 is rendered to be highly doubtful and suspicious. 6 (iii) As per statement of DW-2, the Will Ex. DW-2/A was prepared in the office of Sham Sunder Singh Advocate situated at Nehru Palace, New Delhi, whereas as per statement of DW-3 Sham Sunder Singh, Advocate, the will was drafted by him on the instructions of the testator in his office situated at INA Delhi. So, the statements of DWs 2 and 3 are entirely inconsistent from each other about the place of execution of the will by Samuel Sohan Lal. Hence, the contradictory statements of DWs2 and 3 about the place of execution of the will also render the execution of the will to be highly doubtful and suspicious. (iv) It is admitted fact of the parties that the plaintiff is the daughter was defendant No.2 is the son of deceased Samuel Sohan Lal. Defendant No.1 is the nephew of the testator. The perusal of Ex.DW-2/A shows that even the names of legal heirs of deceased Samuel Sohan Lal are not mentioned in the will Ex.DW-2/A. No reason has been assigned in the will as to why the legal heirs of the testator have been disinherited from the property. So, this is again a suspicious circumstance which has not been removed by the propounder Anoop Sohan Lal. 9. Nothing has been placed on record to show that such findings are based on erroneous or improper, misreading, misappreciation of material placed on record by the parties or misapplication and misinterpretation of provisions of law. Also it is the case of the plaintiff that the deceased had only 7 wanted to execute a general power of attorney in favour of the appellant but, however, he get the Will executed by exercising fraud. In the instant case, no question of law, much less substantial question of law arises for consideration. 10. Application for condonation of delay (CMP (M) No. 1399 of 2011) in filing the appeal also needs to be rejected. The appeal is barred by two years one month and 16 days. No plausible explanation is forthcoming in support of plea of mental illness taken by the appellant. Medical certificate is that of a Homeopath who is a private practitioner. No record of government hospital has been placed on record to establish mental illness of the appellant. Further, it is not the case of the appellant that none else in the family was aware of the litigation, who could have otherwise pursued the matter before this Court. Undisputedly parties had been litigating since the year 2002 and the other members of the family of the appellant surely would be aware of the pending litigation. 11. For the aforesaid reasons, the appeal and the application for condonation of delay are dismissed. However, there shall be no order as to costs. 12th October, 2011 (Sanjay Karol), (C) Judge.