IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 1 of 1998 Judgment reserved on : 25.2.2011 Date of decision: 26.2.2011 Kahan Singh and others …Appellants. Versus Mast Ram and others ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the appellants : Mr. Tarlok Chauhan, Advocate. For the respondents : Mr. Dushyant Dadwal, Advocate for respondents No.1 and 2(a) Kuldip Singh , Judge This appeal has been directed against judgment, decree dated 20.10.1997 passed by the learned Additional District Judge, Mandi in Civil Appeal No. 108 of 1986/89/97/86 decreeing the suit after reversing judgment, decree dated 31.3.1986 passed by learned Sub Judge 1st Class, Court No.1, Mandi in Civil Suit No. 319/74, 8 of 1981. 2. The facts, in brief, are that Beli Ram had filed suit against Smt. Dhalu alias Lila and Smt. Bantu for declaration that the alleged will dated 31.8.1974 of Birbal in favour of Smt. Dhalu and Smt. Bantu registered on 14.10.1974 is a forged document and not binding on him. He had inherited the properties of Birbal after his death on 8.9.1974 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 being his legal heir and younger brother. A prayer for permanent prohibitory injunction was also made. 3. It was alleged that plaintiff and Birbal being real brothers used to live together. The plaintiff generally used to remain outside for preparing sweets while Birbal used to live at home. Birbal was old and infirm and for attending him Smt. Dhalu and Smt. Bantu were engaged as maid servants by the plaintiff who used to look after and serve Birbal during the absence of the plaintiff, Birbal died on 8.9.1974 in Civil Hospital, Kullu. Smt. Dhalu and Smt. Bantu produced a document purporting to be a Will dated 31.8. 1974 of Birbal which was registered on 14.10.1974 despite the objections of the plaintiff. Birbal was not in a sound disposing mind at the time of alleged execution of the Will which is a forged document. The scribe of the alleged Will is the brother of Smt. Dhalu. The alleged attesting witnesses of the Will are inimical to the plaintiff. In these circumstances the suit was filed. 4. Smt. Dhalu and Smt. Bantu contested the suit by filing joint written statement in which they took preliminary objections of locus-standi of the plaintiff to file the suit. It has been alleged that the plaintiff is not legal heir of Birbal. The maintainability of the suit was questioned. The objection of proper valuation of the suit for purposes of court fee and jurisdiction was also taken. On merits, it has been denied that plaintiff is the real brother of Birbal. Smt. Dhalu and Smt. Bantu denied that they were engaged as maid servants. They have pleaded that Birbal had executed a Will in their favour on 31.8.1974 which was registered on 14.10.1974. The death of Birbal on 8.9.1974 in Civil Hospital, Kullu has been admitted. It has been stated that Birbal was ill but he was in fit state 3 of mind and he voluntarily executed the Will in favour of Smt. Dhalu and Smt. Bantu. The prayer was made for dismissal of the suit. The plaintiff filed replication and contested the defence put forward by Smt. Dhalu and Smt. Bantu while reiterating his case. 5. Smt. Vidya Devi and Smt. Leela alias Gangi filed an application under Order 1 Rule 10 CPC for impleading them as parties in the suit claiming to be the daughters of deceased Birbal. This application was allowed on 3.6.1981 by the learned trial Court. 6. On the pleadings of the parties the following issues were framed :- 1. Whether the plaintiff has got no locus standi to file the present suit? OPD 1 and 2. 2. Whether late Sh.Beli Ram and Birbal constituted a joint Hindu family? OPP 3. Whether the property under Will is a joint Hindu family property of late Sh. Birbal and Beli Ram? OPP 4. Whether the Will dated 31.8.1984 is a valid document? OPD 1 & 2. 5. Whether any of the defendants is entitled to succeed to the estate of late Sh. Birbal? OPD 6. Relief. The issues No.1 and 4 were answered in affirmative, issues No. 2 and 3 in negative, under issue No.5, it was held that defendants No.1 and 2 are entitled to succeed to the estate of late Birbal under the Will in their favour. The suit was dismissed on 31.3.1986. In appeal on 20.10.1997 judgment, decree dated 31.3.1986 were set-aside and the suit was 4 decreed as per operative part of impugned judgment, decree. Hence this appeal which has been admitted on the following substantial questions of law:- 1. Whether the learned lower Appellate Court has mis- construed and mis-interpreted the evidence on record regarding Will Ex.DW-2/A? 2. Whether Chet Ram had no locus-standi to continue with the suit? 3. Whether the learned lower Appellate Court could not grant the reliefs in the manner the reliefs have been granted? 7. I have heard Mr. Tarlok Chauhan, Advocate, learned counsel for the appellants and Mr. Dushyant Dadwal, Advocate, learned counsel for respondents No.1 and 2(a) and have also gone through the record. On behalf of the appellants, it has been submitted that the learned lower Appellate Court has mis-construed and mis-interpreted the evidence regarding Will dated 31.8.1974 Ex. DW-2/A and has wrongly held that Birbal had not executed said Will. Chet Ram had no locus-standi to file the suit. The learned lower Appellate Court has erred in decreeing the suit as per operative part of the impugned judgment, decree. On behalf of appellants, learned counsel has relied Madhukar and others vs. Sangram and others (2001) 4 SCC 756, H.K.N. Swami vs. Irshad Basith (dead) by LRs (2005) 10 SCC 243, Krishna Kumar Birla vs. Rajendra Singh Lodha and others (2008) 4 SCC 300 and Rur Singh (dead) through LRs and others vs. Bachan Kaur (2009) 11 SCC 1. Mr. Dushyant Dadwal, Advocate has supported the impugned judgment, decree. 5 8. The other relevant facts are that Beli Ram died during the pendency of the suit, Chet Ram claimed himself to be the legal representative of Beli Ram on the basis of Will Ex.PW-1/A dated 7.12.1979 and accordingly he was brought on record as plaintiff. Chet Ram died during the pendency of the first appeal and his legal representatives were brought on record. The second appeal was filed by Smt. Dhalu alias Lila and Smt. Bantu. Both died and their legal representatives were brought on record in second appeal. The name of Chanki Devi widow of Chet Ram was deleted so also name of proforma respondent No.4 Smt. Vidya. The substantial question of law No.1 was lateron modified as reproduced above. 9. The substantial question of law No.1 is taken up first for determination. A Hindu Will is required to be executed in accordance with Section 63 of the Indian Succession Act, 1925 (for short ‘Act’). DW-1 Smt. Dhalu has stated that she married with Birbal 15 years prior to his death. The second wife of Birbal was Bantu. Birbal had executed a Will in her favour and Bantu prior to his death. The Will was scribed by Alam Chand and the attesting witnesses were Roop Chand, Shobha Ram. Birbal died in Kullu Hospital. The Will was got registered at Mandi after the death of Birbal. In cross-examination, she has admitted that Birbal and Beli Ram were real brothers. Birbal was suffering from Tuber culosis for the last 2-3 years and died in Kullu Hospital in the year 1974. She was earlier married to Moti and no divorce took place between her and Moti. The marriage of Bantu was not performed in her presence. She has shown her ignorance that Birbal had another wife Dhalu, who had died. Beli Ram had no children. She has shown her ignorance that Beli Ram 6 had executed a Will in favour of Chet Ram. Birbal was seriously ill 2-3 years prior to his death and he was even passing stools on the bed. Birbal died one – two months after the execution of the Will. 10. DW-2 Alam Chand has stated that he has scribed Will dated 31.8.1974 Ex.DW-2/A. Shobha and Roop Chand were the attesting witnesses of the Will, Shobha Ram had died. At the time of writing the Will, Birbal was in the bed, the Will was written in the house of Birbal. Dhalu is her sister in relation. DW-7 Roop Chand has stated that Birbal had not executed any Will in his presence. The plaintiff was allowed to cross-examine this witness. He has admitted his signatures Ex.DW-7/A on Ex.DW-2/A. 11. DW-2 Alam Chand has stated that Shobha Ram and Roop Chand were the attesting witnesses of the Will and Shobha has died. DW-7 Roop Chand has stated that Birbal had not executed any Will in his presence, he was cross-examined but nothing could be extracted in cross-examination favouring the appellants. DW-7 admitted his signatures Ex.DW-7/A on Will Ex.DW-2/A. He took the stand that his signatures were taken on blank papers. The simple proof of signatures Ex.DW-7/A on Ex.DW-2/A does not prove the attestation of the Will. The statement of DW-7 if taken into consideration in its entirety does not fulfill the requirement of Section 63 of the Act for proving the execution of the Will. There is no worth-believing evidence on record to prove the execution of the Will. 12. There are other suspicious circumstances regarding the execution of the Will. The Will Ex.DW-2/A was allegedly executed on 31.8.1974, Birbal died on 8.9.1974 about eight days after alleged 7 execution of the Will. DW-1 Smt. Dhalu has stated that Birbal had died one – two months after the execution of the Will. In other words, from the statement of DW-1 it does not emerge that the Will was executed by Birbal on 31.8.1974. It has come in evidence that Birbal was seriously ill 2-3 years prior to his death. He was even passing stool on the bed, he died in the hospital. There is no worth-believing evidence on record whether in this condition Birbal was in sound disposing mind on 31.8.1974. There is no medical evidence that on 31.8.1974 Birbal was in fit state of mind for executing the Will. These suspicion circumstances have not been explained by the propounder. In Krishan Kumar Birla (supra) submission that bequeath in favour of an outsider is unnatural was not accepted by the Apex Court. In the present case execution of Will Ex.DW-2/A has not been proved. Therefore, Krishan Kumar Birla is of no help to appellants. In Rur Singh, it has been held that only because one of the beneficiaries has attested the Will, the same would not mean that he had taken active part in it. In that case Will was attested by ten witnesses; nine of them being independent witnesses. PW-7 Roop Chand alleged attesting witness of the Will Ex. DW-2/A has denied execution of Will Ex.DW-2/A. The execution of Will Ex.DW-2/A has not all been proved, therefore, appellants cannot take assistance from Rur Singh (supra). Thus, taken from any angle, the execution of the Will Ex.DW-2/A has not been proved. The learned Additional District Judge, has rightly appreciated the material on record in returning the finding that execution of Will Ex.DW-2/A has not been proved. The substantial question of law No.1 is decided against the appellants. 8 13. The substantial questions of law No.2 and 3 for convenience sake are taken up collectively for determination. PW-1 Chet Ram has stated that Beli Ram had executed a Will Ex.PW-1/A in his favour. PW-6 Badri Dass, peition writer has stated that Will Ex.PW-1/A was scribed by him at the instance of Beli Ram in favour of Chet Ram. Beli Ram put his thumb mark in presence of Ishwar Dass and Kanshi Ram witnesses on Will Ex.PW-1/A and witnesses in presence of each other and Beli Ram put their signatures on Will Ex.PW-1/A. Beli Ram was in sound disposing mind at that time. PW-6 has stated that Will Ex.PW-1/A bears his signatures. PW-7 Kanshi Ram has stated that Will Ex.PW-1/A was executed by Beli Ram in favour of Chet Ram which was written by petition writer. Beli Ram was in sound disposing mind and he and Ishwar Dass were the attesting witnesses of the Will. 14. PW-6 Badri Dass has stated that Ex.DZ on Ex.PW-1/A is written by him. He has also stated that on Ex.PW-1/A Ishwar Dass has signed as identifier and not as an attesting witness. He has stated that on Ex.PW-1/A attesting witness is only Kanshi Ram. This statement of PW-6 Badri Dass is not in accordance with material which has otherwise come on record. In the examination-in-chief PW-6 has clearly stated that Ishwar Dass and Kanshi Ram were the attesting witnesses of Will Ex.PW-1/A. PW-7 Kanshi Ram has also stated that he and Ishwar Dass were the attesting witnesses of the Will Ex.PW-1/A. The scribe PW-6, no doubt, in circle DZ on Ex.PW-1/A has written the word ‘Pahchan Karta’ (Identifier) Ishwar Dass, Advocate but there is positive evidence that Ishwar Dass, Advocate has signed the Will as attesting witness and not simply as identifier. The identification was not required before the petition 9 writer at the time of scribing the Will. Ishwar Dass, Advocate has separately identified the testator at the time of registration of the Will Ex.PW-1/A. In these circumstances, the signature of Isnwar Dass, Advocate below circle DZ on Will Ex.PW-1/A is that of attesting witness and not of identifier. This being the position, Will Ex.PW-1/A stands proved. DW-1 Smt. Dhalu has shown her ignorance that Beli Ram had executed a Will in favour of Chet Ram. She did not specifically denied the execution of the Will by Beli Ram in favour of Chet Ram. The appellants being strangers have no locus standi to challenge Will Ex. PW-1/A. In these circumstances, keeping in view the entire material on record, it has been established that Beli Ram had executed the Will Ex.PW-1/A in favour of Chet Ram. 15. The learned counsel for the appellants has submitted that Chet Ram has no locus-standi to continue the suit on the basis of Will Ex.PW-1/A He has submitted that the original plaintiff Beli Ram was dependent on the success of the case and was in the nature of spes- successionis. In these circumstances, according to the learned counsel for the appellants, vide Will Ex.PW-1/A Beli Ram could not validly bequeath away his rights in the property in favour of Chet Ram. There is no force in this contention. Beli Ram had filed the suit on the ground that he is entitled to the property after the death of his brother Birbal and the Will Ex.DW-2/A dated 31.8.1974 is a forged document and it was never executed by Birbal. Beli Ram during his life time executed a valid Will Ex.PW-1/A in favour of Chet Ram. Clause (a) of Section 6 of the Transfer of Property Act provides that the chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on 10 the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred. Clause (e) of Section 6 provides that a mere right to sue cannot be transferred. 16. In support of his submission regarding locus-standi of Chet Ram to continue the suit, it has been submitted by learned counsel for the appellants that learned Additional District Judge has not considered this aspect and first appellate court was duty bound to consider all facts and law, he has relied Madhukar and H.K.N. Swami (supra). The appellants have not taken this stand that this Court is not competent to decide this point when entire material is before this Court. The competency of Chet Ram and his legal representatives to continue the litigation can be considered by this Court when the question has been raised by the learned counsel for the appellants that the learned Additional District Judge without considering the competency of Chet Ram to continue the proceedings, has wrongly erred in decreeing the suit. On the death of Beli Ram, Chet Ram substituted Beli Ram as plaintiff on the basis of Will Ex.PW-1/A executed by Beli Ram in favour of Chet Ram. Chet Ram had not come in the picture during the life time of Beli Ram, therefore, his case cannot be termed merely a chance of an heir-apparent succeeding to an estate or chance of a relation obtaining a legacy on the death of kinsman. On the death of Beli Ram, Chet Ram had come on record. Beli Ram had not transferred mere right to sue to Chet Ram, rather by virtue of Will Ex.PW-1/A Beli Ram has bequeathed his property in favour of Chet Ram. Therefore, Chet Ram had every right to come on record and to pursue the suit. Chet Ram also died during the pendency of the litigation and now his legal representative have come on 11 record, who have stepped into the shoes of Chet Ram and have right to continue the litigation. In these circumstances, contention of learned counsel for the appellants that Chet Ram had no locus-standi to continue the suit is rejected and substantial question of law No.2 is decided against the appellants. 17. It appears the learned Additional District Judge by way of abundant caution referred Beli Ram and Chet Ram in the operative part of the impugned judgment. In substance, the suit of the appellants before the learned Additional District Judge has been decreed as owners in possession of the estate of Birbal and, therefore, no fault can be found with the decree passed by the learned Additional District Judge in the lower appellate Court. The learned Additional District Judge has rightly appreciated the material on record in reversing the judgment of the trial court and decreeing the suit. The substantial question of law No.3 is decided against the appellants. There is no merit in the appeal. 18. No other point was urged. 19. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ), Judge. February 26, 2011 (GR)