IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.: 534 of 2005. Reserved on: 24.10.2011. Decided on: 04.11.2011. ______________________________________________ Sukh Lal. … Appellant. Versus Gian Chand and others. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Appellant : Mr. Shrawan Dogra, Advocate. For the Respondents : Mr. N.S. Chandel, Advocate for respondent No.1. None for respondents No.2(a), 2(b), 4(a) and 4(b). Rajiv Sharma, Judge: This regular second appeal is directed against the judgment and decree dated 8.6.2005 passed by the learned Additional District Judge, Ghumarwin, district Bilaspur in Civil Appeal No. 100/13 of 2004/2001. 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - 2. Material facts necessary for adjudication of this regular second appeal are that the respondent/plaintiff (hereinafter referred to as “the plaintiff” for convenience sake) has instituted a suit for declaration/permanent injunction in the Court of Sub Judge 1st Class, Ghumarwin, District Bilaspur. According to the plaintiff, one Shri Lachhia was owner in possession of: (a) land measuring 37-18 bighas comprised in Khasra Nos. 333, 1276, 1292, 1293, 1294, 1297, 1404, 1408, 1425, (b) ½ share in land measuring 6-6 bighas comprised in Khasra Nos. 1352, 2159/1464, 1485, 1487, (c) 1/3rd share of land comprised in khewat No.290, Khasra No.1349, measuring 3-2 bighas, (d) 1/9th share of land comprised in khewat No.291, Khasra Nos.1364, 1365, 1484, measuring 8 biswas, and (e) 1/6th share of land comprised in khewat No.293, Khasra Nos. 1954/1366, 1447, measuring 6 biswas, situate in village Marhana, Pargana Ajmerpur, Tehsil Ghumarwin, District Bilaspur H.P. Lachhia died intestate on 15.3.1986. The property of Lachhia was inherited by his seven Class-I legal heirs including Smt. Ramku Devi. Smt. Ramku Devi executed a valid Will in favour of the plaintiff on 24.3.1987. On the death of Smt. Ramku Devi, he became joint owner in possession to the extent of 1/7th share of the suit land. The plaintiff has challenged the Will dated 7.3.1986 made in favour of defendants, being fictitious. It is in these circumstances, the plaintiff has filed the suit for declaration that - 3 - he is owner in possession of 1/7th share of suit land and for permanent injunction for restraining the appellant/defendants from interfering with his joint possession over the suit land. 3. The suit was contested by defendants No.1 to 6. According to them, defendants No.1 to 3 being sons and widow of Lachhia were the only legal heirs. He had also executed a valid Will dated 7.3.1986 in favour of defendants No.1 to 3. On the basis of Will dated 7.3.1986, defendants No.1 to 3 have inherited the suit land on the death of Lachhia. The Will was registered in the office of Sub-Registrar and Smt. Ramku Devi had not raised any objection at the time of registration of the Will. 4. Plaintiff filed replication. The learned trial Court framed the issues. The learned Sub Judge 1st Class, Ghumarwin decreed the suit on 9.10.2001. One of the defendants, Shri Sukh Lal filed an appeal before the learned Additional District Judge, Ghumarwin, district Bilaspur. The learned Additional District Judge, Ghumarwin dismissed the appeal on 8.6.2005. Hence, this regular second appeal against the judgment and decree dated 8.6.2005 passed by the learned Additional District Judge, Ghumarwin. 5. This regular second appeal was admitted on the following substantial questions of law, on 3.11.2005:- - 4 - “i) Whether the learned trial court and first Appellate court erred in law in holding that the Will in question was surrounded by suspicious circumstances? ii) Whether the findings of the learned trial court and the first Appellate Court are result of misreading of oral as well as documentary evidence on record?” 6. Mr. Shrawan Dogra, learned counsel for the appellant has vehemently argued that the Will, Ex.P-A, dated 24.3.1987 is shrouded with suspicion. According to him, the plaintiff has failed to prove the execution of Will, Ex.P-A in his favour made by Smt. Ramku Devi on 24.3.1987. He then argued that both the courts below have misconstrued, misread and misappreciated the oral as well as documentary evidence. He has further argued that the contesting defendants have proved the execution of Will, Ex.DW- 4/A, dated 7.3.1986 made in their favour by Lachhia, in accordance with law. 7. Mr. N.S. Chandel, learned counsel appearing on behalf of the plaintiff has supported the judgments and decrees passed by both the courts below. 8. I have heard learned counsel for the parties and gone through the pleadings carefully. 9. Since both the substantial questions of law are interconnected and interlinked, they were taken up together for consideration and determination to avoid repetition of discussion of evidence. - 5 - 10. The Will executed in favour of the plaintiff is dated 24.3.1987 and the Will executed in favour of defendants is dated 7.3.1986. 11. Plaintiff has appeared as PW-1. According to him, Smt. Ramku Devi was his grand-mother. She has executed Will, Ex.P-A in his favour. Will Ex.P-A has been scribed by PW-2, Baldev Dass. He has testified that the Will Ex.P-A was scribed by him on the basis of instructions imparted to him by Smt. Ramku Devi. She had put her thumb impression on the Will after admitting the same to be correct in presence of two witnesses, namely, Prithvi Singh and Kashmir Singh. 12. Prithvi Singh, PW-3 is one of the marginal witnesses of Will, Ex.P-A. According to him, Will Ex.P-A was written by document writer, PW-2, Baldev Dass on the instructions of Smt. Ramku Devi. Smt. Ramku Devi had thumb marked the Will in his presence and the presence of Kashmir Singh. PW-4, Chandu Ram has deposed that he went to village Marhana on 24.3.1987 where the Will was presented before him by Smt. Ramku Devi for registration. The contents of the Will were read over to her. She admitted the same to be correct. Thereafter she put her signatures on the Will Ex.P-A. 13. It is thus, evident that Will Ex.P-A was duly scribed by Baldev Dass, PW-2 at the instance of Smt. Ramku Devi, the contents whereof were read over to her. PW-3, Prithvi Singh is - 6 - the marginal witness of the same. The Will was presented before PW-4, Chandu Ram. He also read over and explained the contents of the Will Ex.P-A to Smt. Ramku Devi and she has admitted the same to be correct. 14. Now the court will advert to the manner in which the Will, Ex.DW-4/A, dated 7.3.1986 has been executed. 15. Appellant, Sukh Lal has appeared as DW-1. According to him, his father Lachhia had executed a Will in favour of defendants. The same was registered in the office of Sub- Registrar, Ghumarwin. Attesting witnesses, Bansi Ram and Kahnu Ram have died. Shri Bishan Dass son of marginal witness Shri Bansi Ram has appeared as DW-2 to prove the signatures of Bansi Ram on the Will. DW-3 Smt. Vidya Devi daughter of another marginal witness Shri Kahnu Ram was also examined. They have identified the signatures of Bansi Ram and Kahnu Ram on the Will Ex.DW-4/A. Ex.DW-4/A was scribed by Shri I.D. Sharma, Advocate. He has stated that the Will Ex.DW-4/A was scribed on the instructions of Shri Lachhia in presence of Bansi Ram and Kahnu Ram. According to him, the witnesses had also signed in presence of Lachhia. According to DW-6, Ramesh Chand, the Will Ex.DW-4/A was registered and he had written the statement of Kahnu Ram before the Registering Authority vide Ex.DW-6/A. - 7 - 16. It is evident from Ex.DW-4/A, dated 7.3.1986 that the Will has been scribed on two judicial papers bearing Nos. 916601 of the year 1982 and the second paper contains Sr. No.181365. No year is mentioned in the second judicial paper. The Will, as per defendants, was scribed on 7.3.1986. According to I.D. Sharma, DW-4, he had brought the judicial papers. According to the statement of Kahnu Ram before the Sub Registrar, the judicial papers were provided by Shri Lachhia to Shri I.D. Sharma, Advocate. There is inherent contradiction in the statement of Shri I.D. Sharma as to who had brought the judicial papers. Shri I.D. Sharma, DW-4 has not explained why two judicial papers carrying two different series of Sr. Nos. were used for scribing the Will. It is also clear from Ex.DW-4/A that there is considerable vacant space between the last lines and the thumb impression of Lachhia. Generally the executant puts his thumb impression or signatures immediately below the last line. However, in this case, considerable space has been left on page No.2 and why there is more space between the last line and where the executant has put his signature, has not been explained satisfactorily. Moreover, there is more space between lines on the second page, which has also not been explained by the defendants. Thus, it can safely be presumed that signatures of Lachhia were obtained on a blank paper and the same have been utilized for executing the Will. - 8 - 17. Thus, in view of the observations and discussions made hereinabove, it is evident that Ex.DW-4/A is shrouded with suspicion and the same has not been removed by the defendant(s). Ex.P-A, dated 24.3.1987 has been validly executed. The courts below have correctly appreciated the oral as well as documentary evidence. 18. Accordingly, for the foregoing reasons, it is held that the Will Ex. P-A, dated 24.3.1987 executed by Smt. Ramku Devi in favour of plaintiff is valid and the Will Ex.DW-4/A, dated 7.3.1986 executed by Shri Lachhia in favour of defendants is shrouded with suspicion, which has not been removed by the defendants. Consequently, there is no merit in this regular second appeal and the same is dismissed. The pending application(s), if any, also stands disposed of. No costs. (Rajiv Sharma), Judge. November 04, 2011. (sck).