IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 252/2000 Reserved on: 29.6.2011 Decided on:8.7. 2011 ___________________________________________________ Prem Chand and others. …Appellants. Versus Lal Singh and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the appellants : Mr. Rajnish K. Lall, Advocate vice Mr. K.D. Sood, Advocate. For the Respondents : Mr. H.K. Bhardwaj, Advocate for respondents except respondent No. 12 (e). Respondent No.12 (C) already ex parte. _____________________________________________________ Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 28.3.2000 rendered by the learned District Judge, Hamirpur in Civil Appeal No.78 of 1991. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the predecessor-in- interest of appellant No.1, and appellants No.2 and 3 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 (hereinafter referred to as ‘plaintiffs’ for convenience sake) instituted a suit for declaration by way of permanent injunction that they were owners in possession of the land detailed in the plaint, total area 77 kanals 10 marlas as per jamabandi for the year 1980-81 and the respondents- defendants (hereinafter referred to as ‘defendants’ for convenience sake) have no right to interfere with the ownership and possession of the plaintiffs in any manner whatsoever and it is also prayed alternatively that in case during the pendency of the suit, defendants succeed in taking possession of any part of the suit land or the possession of the plaintiffs is not found on any part of the suit land, then suit for possession. According to the averments contained in the plaint, the suit land was shown to be in the ownership and possession of Mahanti Devi. Total area of all the Khatas was 77 kanals 10 marlas as per jamabandi for the year 1980-81 and in the remarks column there was entry with red ink regarding mutation No. 1055 about the inheritance of deceased Mahanti. Mahanti Devi was the aunt of plaintiff No.1 and maternal grand-mother of plaintiffs No.2 and 3, namely, Raghbir Singh and Bidhi Singh. She died on 21.5.1985. The plaintiffs were serving Mahanti Devi and the relations were cordial. Even the plaintiffs were cultivating the suit land during her life time. They were in possession of the suit 3 land in the life time of Mahanti. Last rites of Mahanti were performed by the plaintiffs. She executed a will Ex. P-2 on 31.1.1985 in favour of the plaintiffs, which was duly registered by the Sub-Registrar on the same day. This “will” was executed by Mahanti of her free will and she was in disposing mind. According to the plaint, plaintiff No.1 was to succeed qua ½ share and plaintiffs No.2 and 3 were to succeed the remaining ½ share. According to them, there were no legal heirs of Mahanti except the plaintiffs. Defendants tried to prevail upon Mahanti Devi to execute some documents and on this, plaintiffs filed a suit against Mahanti and she stated that she did not intend to execute other documents. The suit was decreed. It is further averred that the succession was open on the death of Mahanti on 21.5.1985. They have become owners of the suit land qua the share of Mahanti by way of “will”. Mahanti Devi had not executed any “will” during her life time except the one mentioned above and if there is any such document that is fraudulently prepared after the death of deceased Mahanti has no bearing on the interest and title of the plaintiffs qua the estate of Mahanti. 3. Suit was contested by the defendants. According to the defendants, they were in possession of the suit land and they were serving and looking after 4 Mahanti Devi. She used to live with them. The “will” dated 31.1.1985 was alleged to be wrong, illegal, forged and no such “will” was ever executed by deceased Mahanti Devi in favour of the plaintiffs. The last “will” Ex.D-1 executed by deceased Mahanti Devi in favour of the defendants was dated 12.5.1985. 4. Replication was filed by the plaintiffs. Trial court framed issues on 17.12.1986. Trial court dismissed the suit on 27.5.1991. Plaintiffs preferred an appeal before the learned District Judge, Hamirpur. He dismissed the same on 28.3.2000. Hence, the present Regular Second Appeal. It was admitted on the following substantial questions of law: 1. Whether the court below has misread and misconstrued the basic document of title, the two wills Ex.P1 and D-1 and that the suspicious circumstances attached to the execution of the will Ex.D-1 dated 12.5.1985 had been explained? 5. Mr. Rajnish K. Lall has strenuously argued that both the courts below have misread and misconstrued the “wills” Ex.P-2 and D-1 dated 31.1.1985 and 12.5.1985, respectively. 6. Mr. H.K. Bhardwaj has supported the judgments and decrees passed by both the courts below. 7. I have heard the learned counsel for the parties and have perused the records carefully. 5 8. PW-1 Giano Devi has testified that she was having power of attorney on behalf of her son Raghubir Singh and general power of attorney is Ex.P-1. Mahanti Devi was her Mousi and she was residing with her. She was being looked after by her. She executed “will” in favour of the plaintiffs at place Mehre, which was written by the Petition Writer and Mahanti Devi put her thumb impression and then the “will” was got registered. She was not aware that before writing the “will” when Mahanti had visited Mehre. She was residing with her since 1984. 9. PW-2 Yashpaul has deposed that “will” Ex.P-2 was scribed by him at the instance of Mahanti Devi. It was read over to her and thereafter she put her thumb impression. The marginal witnesses also signed the “will” dated 31.1.1985. 10. PW-3 Baldev Kumar was the Registration Clerk. He has deposed that on 31.1.1985, “will” Ex. P-2 was registered before the Sub Registrar, Barsar. 11. PW-4 Mahender Singh has deposed that he was Numberdar and he was marginal witness to “will” Ex.P-2. According to him, Mahanti was in a fit state of mind when the “will” was scribed. The contents of the “will” were read over to Mahanti Devi and thereafter she put her thumb impression. The “will” was written at about 12.00 noon in Tehsil and he was present there. He 6 was ignorant that he has appeared as a witness in 150- 200 cases. 12. PW-5 Jagjit Singh was also one of the witnesses of the “will”. According to him, he signed the “will” in the presence of Mahanti. He was called by Mahanti from Mehre when she desired to execute a “will”. This message was conveyed to him by Giano Devi. He was not aware whether Mahanti was suffering from ailment at that time. 13. PW-6 Garib Dass has deposed that he has seen “will” Ex.P-2, which was got registered through him. 14. PW-7 Jagat Ram has deposed that Mahanti was residing with the plaintiffs and he has worked as a Postman for a period of 21 years. He was not aware what relation Mahanti was having with the defendants. 15. PW-8 Uttam Chand has deposed that Mahanti was known to him and she was residing in the house of Jaishi Ram and she was being looked after by the plaintiffs. 16. Defendant No.1 has appeared as DW-1. According to him, Mahanti Devi was his real aunt. She died 4 years back. She was owner of 77 kanals of land and the land was mutated in the names of all the defendants. The land was in their possession. Mahanti Devi made a “will” in favour of the defendants and they were the real 7 legal representatives of Mahanti. Mahanti Devi during night hours was taken by the plaintiffs to Mehre, where son-in-law Brij Lal of Gaino Devi, who is the Driver of XEN, resides. The matter was reported that Mahanti Devi was not traceable. The report was made before the Sub Divisional Magistrate, Hamirpur. The Sub Divisional Magistrate appointed M.L. Verma, Tehsildar alongwith a lady doctor, who went to the house of Giano Devi in order to enquire about the health of Mahanti Devi. Mahanti Devi was found locked in the room. The lock was not opened. 17. DW-2 Bansi Dhar has scribed the “will” Ex.D-1. According to him, Mahanti Devi made a “will” in favour of the defendants. She was real aunt of the defendants. He came to know that Mahanti was ill and then he went to see her. She requested him to scribe a “will”. He testified that he advised Mahanti that the “will” should be written in the Tehsil Office. Duni Chand and Rup Lal witnessed the “will”. The contents of the “will” were read over to Mahanti and she after admitting the same to be correct put her thumb impression on the “will”. The witnesses also signed the “will” in the presence of Mahanti. Mahanti was in a fit state of mind. 18. DW-3 Roop Lal deposed that the “will” was scribed by DW-2 Bansi Dhar. The contents of the same 8 were read over to Mahanti Devi. He signed the “will” in her presence. She was in a fit state of mind. 19. DW-4 Duni Chand has deposed that Mahanti Devi made a “will”. It was scribed by DW-2 Bansi Dhar. The contents of the “will” were read over to Mahanti and then she put her thumb impression. He alongwith Roop Lal also put their signatures in presence of Mahanti Devi. 20. The material witness is DW-5 L.R. Verma. He was working as Tehsildar. He was ordered by the Sub Divisional Magistrate, Hamirpur to visit the spot. He visited the spot on 9.4.1985 in order to know the health condition of Mahanti Devi. He was accompanied by the Numberdar, Duni Chand and Bihari Lal resident of Mehre. When he reached in the house of Brij Lal, he found his house locked. On inquiry, it was found that Asha Devi wife of Raghubir Singh had locked the room. He could not write the statement of Mahanti Devi since the room was locked. He made report Ex.DW-5/A. He also recorded the statements of Asha Devi (Ex.DW-5/B), Bihari Lal (Ex.DW- 5/C), Duni Chand (Ex.DW-5/D) and Brij Lal (Ex.DW-5/E). 21. The “will” Ex. P-2 has been scribed by PW-2 Yash Paul. According to him, the testatrix was not sick at the time of execution of the “will”. According to PW-1 Giano Devi, Mahanti used to be in state of illness right from 1984 and was suffering from paralysis during those 9 days and PW-5 Jagjit Singh has also deposed that he was called to Mehre by Giano Devi by sending message to him on 30.12.1984 and his statement to the effect that Mahanti Devi had come to Mehre appears to be quite false in view of the facts that she was suffering from paralysis during those days. Now, as far as PW-2 is concerned, his licence was already cancelled on the day when he has written the “will” Ex.P-2. PW-4 Mahender Singh had appeared in as many as 150-200 cases as witness. PW-4 Mahender Singh and PW-5 Jagjit Singh are chance witnesses. These witnesses do not belong to the same area. According to the statement of DW-5 L.R. Verma, Mahanti was found locked when he was ordered to visit the spot by the Sub Divisional Magistrate on 9.4.1985. The room was not opened by Asha Devi. He had recorded the statements of Asha Devi, Bihari Lal, Duni Chand and Brij Lal. If the “will” Ex.P-2 was genuine, there was no need for the plaintiffs to lock Mahanti Devi. 22. What emerges from the report Ex.DW-5/A is that Mahanti Devi was unduly influenced by the plaintiffs to execute the “will”. She was sick and old lady. The licnece of PW-2, as noticed above, already stood cancelled. PW-4 Mahender Singh is a stock witness and has been cited witness in 150-200 cases. PW-1 Giano Devi has admitted that Mahanti was ill and was suffering from 10 paralysis. Thus, it can safely be concluded that the “will” Ex.P-2 is surrounded with suspicious circumstances, which have not been removed by the plaintiffs. 23. Now, as far as the “will” Ex.D-1 is concerned, the same has duly been proved by the defendants. The “will” Ex.D-1 has been scribed by DW-2 Bansi Dhar at the instance of Mahanti Devi in the presence of marginal witnesses. According to DW-2, Mahanti was in sound mental health. The contents of the “will” were read over to her and she after admitting the contents of the “will” to be correct put her thumb impression. The will was scribed inside the house of deceased Mahanti. DW-3 Rup Lal has supported the statement of DW-2 Bansi Dhar. According to him, the “will” Ex.D-1 was executed by deceased Mahanti in favour of the defendants in sound mental health and it was read over to her by the Scribe Bansi Dhar and she marked her thumb impression after admitting its contents to be correct. DW-4 Duni chand is also marginal witness of “will” Ex.D-1. According to him, the will was executed by Mahanti in favour of defendants in sound mental health on 12.5.1985. The contents of will were read over to Mahanti Devi by DW-2 and the former had put her thumb impression after admitting it to be correct. According to DW-1 Lal Singh, Mahanti Devi was his real Chachi and they were in possession of the suit 11 land and were legal heirs of the property of deceased Mahanti Devi, who had executed a “will” in their favour in lieu of the services rendered by them to her. This will was executed at the place where Mahanti Devi was residing. The “will” Ex.D-1 was written at Amned, which is the native place of Mahanti Devi. 24. Accordingly, in view of the observations and discussions made hereinabove, it is apparent that both the courts below have correctly appreciated the oral as well as documentary evidence led by the parties. 25. Consequently, there is no merit in the Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs. (Justice Rajiv Sharma), Judge. 8.7. 2011 *awasthi*