IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.172/1998 Reserved on: 12.8.2008 Decided on.5.9.2008 Rattan Singh and others. …Appellant. Versus Kanta Devi. …Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the appellants : Ms. Shivani Kanwar, Advocate vice Mr. Bimal Gupta, Advocate. For the respondent : Ms. Aruna Sharma, Advocate vice Ms. Jyotsna Rewal Dua, Advocate. Rajiv Sharma, J. This Regular Second Appeal has been filed against the judgment and decree dated 2.3.1998 passed by the learned Additional District Judge, Sirmaur District at Nahan in civil appeal No. 2-N/13 of 1996. The brief facts necessary for the adjudication of this appeal are that the respondent-plaintiff (hereinafter referred to as the plaintiff for convenience sake) filed a suit for declaration and permanent injunction in the court of Senior Sub Judge, Sirmaur District at Nahan. She sought a decree of declaration that the un-registered will dated 20.4.1992 Ex. DA allegedly executed by late Sh. Rangi Ram in favour of Nand Lal’s sons, Rattan Singh and Dhanbir Singh, defendant No.1 and 2, respectively is the result of fraud and forgery and the sons had no right, title and interest in the property. She also sought declaration that mutation No. 133 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 effected on the basis of the will dated 25.11.1992 was wrong and illegal and she was entitled to half share in the suit property and joint possession thereof alongwith her brother Nand Lal. The suit was contested by the appellants-defendants (hereinafter referred to as ‘the defendants’ for convenience sake). The trial court dismissed the suit on 26.12.1995. The plaintiff preferred an appeal before the Additional District Judge, Sirmaur at Nahan. The learned Additional District Judge accepted the appeal on 2.3.1998. This Regular Second Appeal has been preferred by the defendants against the judgment and decree dated 2.3.1998 passed by the learned Additional District Judge, Sirmaur at Nahan. The Regular Second appeal was admitted on the following substantial questions of law: 1. Whether the learned Additional District Judge, Nahan has misconstrued, mis-interpreted the execution of will dated April 20, 1992 (Ex.DA) and has erred in returning the finding that the will is shrouded by suspicious circumstances? 2. Whether learned Additional District Judge has erred in not considering the statement of PW-1, Smt. Kanta Devi, when she has specifically said that according to her the will dated April 20, 1992 is not genuine because it is not registered, otherwise she has no other reason to put forth why will is not genuine? Ms Shivani Kanwar, Advocate appearing vice counsel for the appellants had strenuously argued that the judgment and decree dated 2.3.1998 are not sustainable in the eyes of law. She also contended that the judgment and decree of the learned trial court dated 26.12.1995 be restored. Ms. Aruna Sharma, Advocate appearing vice counsel for the respondent had supported the judgment and decree dated 2.3.1998 passed by the learned Additional District Judge, Sirmaur at Nahan. 3 I have heard the learned counsel for the parties and perused the record carefully. Since both the questions of law are inter-connected, therefore, the same can be conveniently discussed together to avoid repetition of discussion of evidence. The plaintiff has appeared as PW-1. She has deposed that her father had been living separately from the defendants. He was maintaining separate mess and residence. According to her he was not in good terms with them. The courtyards of their houses were also separate. She further stated that her father had great affection for her. She was instrumental in getting her father admitted in Government Hospital, Nahan. He was treated by Dr. Oberoi. The defendant, Rattan Singh has appeared as DW-1. DW-2 is the scribe of the will dated 20.4.1992. He has deposed that he has scribed the will at the instance of defendant Rattan Singh’s grand-father Rangi Ram. He further deposed that witnesses, namely, Gian Chand (DW-3) a Lamberdar and Sewa Ram Tomar were also present on the spot. He had read over the contents of the will and explained the same to the testator who admitted them correct and thereafter put his signatures on the documents. Thereafter the scribe DW-2 Ram Chander and the witnesses put their signatures on the will. DW-3 Gian Chand had deposed that Rangi Ram had bequeathed his property in favour of his grand sons vide will dated 20.4.1992. He has further deposed that the testator signed the document in the presence of witnesses after admitting the contents as correct. The plaintiff has asserted that the will was obtained by fraud and mis-representation. The particulars of these averments have neither been set forth in the pleadings nor have these been particularized in the evidence. It is not necessary 4 that the will ought to be registered. The fact that the will has not been registered will not make its execution suspicious. In the present case the grand-father has bequeathed the property in favour of his grand sons. It was not necessary that the witness should be from the same village. As far as Ram Chander is concerned, he belongs to the village of the testator. The presence of Sh. Nand Lal will not make the execution of the document doubtful. The learned Additional District Judge has primary considered three suspicious circumstances at the time of execution of the will. Firstly, the will is not dated, secondly, the scribe was not a qualified document writer and thirdly, in the will the age of the testator is not given. It is not necessary that the will should be dated as per law. The will has been validly scribed by DW-2. There is no requirement that the will can only be scribed by a document writer. It is also not requirement under law that the age of the testator has to be given in the will. The fact that the mode and style in which the last 4 lines of the document Ex.DA have been written, differ from the preceding 16 lines, will not make the will suspicious. The testator has signed the will. The presence of DW-1 and DW-2 at the time of the execution of the ‘Will’, will not make the same suspicious. The other circumstance which has weighed heavily with the learned Additional District Judge for treating the document suspicious is that the relation of the defendants was not cordial with the testator. It has come in the evidence that the plaintiff was not living at the testator’s village. She was residing at Nahan. The testator was aged about 85 years. If he was living in a village, he was bound to be looked after by his grand sons in the absence of his daughter. The fact that at one time, the plaintiff has got the testator treated from Government Hospital, Nahan will not render the will in question suspicious. The fact that the courtyards and the mess may be 5 separate is not suggestive of the fact that the relations between the testator and legatees were not cordial. It was necessary for the plaintiff to plead and prove specifically that the will dated 20.4.1992 was outcome of coercion, fraud and mis-representation etc. The only circumstance according to the plaintiff that the will was obtained by fraud was that it was unregistered document. In the present case the age of the testator was 85 years and it may not be possible for him to visit the office of the Registrar. The will has been executed in favour of grand sons and the fact that the daughter has been left out being the beneficiary is no ground to assume that the will in question is not a genuine document. The defendants have produced the scribe of the will DW-2 who has categorically stated that he read over the contents of the will to the testator, which he understood and thereafter put his signatures. He may not be a qualified document writer. There is no requirement, as noticed above, that the will can only be scribed by a document writer. What has to be seen whether the document is legible and conveys the wishes of the testator. One of the marginal witnesses, Gian Chand DW-3 has supported the version of scribe DW-2. He has also deposed that the contents of the documents were read over to the testator and he has understood the same and thereafter put his signatures on the same. The fact that Gian Chand DW-3 belongs to a different village will not make his statement untrustworthy. The findings recorded by the learned Additional District Judge that the will was not genuine are liable to be interfered with and the findings recorded by the learned trial court that the will in question was genuine are bound to be upheld. 6 In view of the aforesaid reasoning, the regular second appeal is allowed. The judgment and decree dated 2.3.1998 passed by the learned Additional District Judge are set aside. The judgment and decree dated 26.12.1995 passed by the learned Senior Sub Judge are restored. There shall be no order as to costs. (Rajiv Sharma), Judge 5.9.2008 *Awasthi*