IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.107/2009 alongwith RSA No.109/2009 Reserved on: 7.7.2011 Decided on:13.7.2011 _____________________________________________ RSAs No. 107 and 109 of 2009 Ashok Bansal. …Appellant. Versus Anju Goel. …Respondent. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1. yes (in both the appeals) For the appellant : Mr. Bhupender Gupta, Sr. Advocate with Ms. Charu Gupta, Advocate. For the Respondent: Mr. G.D. Verma, Sr. Advocate with Mr. B.C. Verma, Advocate. _____________________________________________________ Justice Rajiv Sharma, Judge. Since both these Regular Second Appeals arise from a common judgment dated 6.11.2008 in Civil Appeals No.20-NL/13 of 2008, 21-NL/13 of 2008 and Cross Objections No. 25-NL/13 of 2008 and common questions of law and facts are involved, the same were 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 taken up together for hearing and are being disposed of by a common judgment. 2. Material facts necessary for the adjudication of these Regular Second Appeals are that one Harsawaroop Dass was owner in possession of the house, shop and land in dispute. He has one daughter, namely, Anju Goel. His wife had already died. According to the appellant-plaintiff (hereinafter referred to as ‘plaintiff’ for convenience sake) since Harsawaroop Dass had married his daughter in a good family and she was living good life, deceased Harsawaroop was alone and was putting up in the house of the plaintiff where the plaintiff, his father, mother and father were putting up. He was looked after by him. Harsawaroop was crippled and was not in a position to walk. He, out of love and affection, executed a “will” in his favour on 27.6.2001 (Ex.P-2). It was also got attested from a Notary Public. Harsawaroop died on 4.6.2003. Respondent-defendant, namely, Anju Goel (hereinafter referred to as ‘defendant’ for convenience sake) got the mutation attested in her favour on 20.6.2003 at Sr. No. 347 and 361. According to him, on the basis of “will”, he became owner in possession of the suit property and the defendant has got no right, title or interest over the suit property. It is in these 3 circumstances the suit was filed by claiming that plaintiff had become owner of the suit property in view of the execution of “will” and injunction restraining the defendant from interfering over the suit land or dispossessing the plaintiff by force had been sought. 3. Suit was contested by the defendant. According to the defendant, she was daughter of Harsawaroop. According to her, no “will” was executed by her father. He was living separately. His last rites were performed by her. The “will” claimed by the plaintiff was forged document prepared by Dharminder Singh Rana. The attestation of “will” by Notary Public was also forged to grab the suit property. The plaintiff broke open the house and the shop and forcibly took the possession of the suit property. She lodged complaint with the Station House Officer, Police Station, Nalagarh. The defendant also preferred counter-claim. 4. Plaintiff filed replication to the written statement filed by the defendant. Written statement was also filed to the counter-claim stating therein that the claim of the defendant was not maintainable since he had become owner in possession. Defendant also filed replication to the written statement filed to the counter- claim. 4 5. Learned Senior Sub Judge framed issues on 12.4.2004. He dismissed the suit vide judgment dated 17.4.2008 and partly decreed the counter-claim. Defendant/counter-claimant was held entitled for possession of the suit property. The claim for mesne profit @ ` 7,000/- per month was dismissed. Plaintiff preferred Civil Appeal No. 20-NL/13 of 2008 against the judgment and decree dated 17.4.2008. He filed Civil Appeal No. 21-NL/13 of 2008 against the judgment and decree dated 17.4.2008 passed by the Civil Judge (Senior Division), Nallagarh in Counter Claim No. 93/2008 whereby he decreed the counter-claim for the relief of possession. Defendant also filed Cross-Objections in appeal against the judgment dated 17.4.2008 passed by the Civil Judge (Senior Division), Nallagarh whereby he partly decreed the cross-objection and partly dismissed against the Cross-Objector. Learned Additional District Judge, Solan, Camp at Nalagarh dismissed Appeal Nos. 20-NL/13 of 2008 and 21-NL/13 of 2008. However, cross-objections No. 25-NL/13 of 2008 were partly decreed by allowing a sum of ` 2,000/- per month instead of ` 7,000/- per month towards mesne profit from the date of possession of the plaintiff, i.e. 1.7.2003 till realization of the total amount. It is in these 5 circumstances that the plaintiff has challenged the judgments and decrees rendered by the learned Additional District Judge in the Civil Appeals and Cross- objections, as noticed above. Both these appeals were admitted on 21.6.2010 on the following substantial question of law: 1. Whether the courts below have mis-appreciated and misinterpreted the evidence with respect to the will Ex.P-2, which has caused miscarriage of justice? 6. Plaintiff has filed application, under order 41 rule 27 of the Code of Civil Procedure, whereby documents, i.e. A-1 to A-5 have been sought to be brought on record wherein deceased has appended his signatures. 7. Mr. Bhupender Gupta, learned Senior Advocate has strenuously argued that both the courts below have mis-appreciated and misinterpreted the evidence led by the parties with respect to “will” Ex.P-2 dated 27.6.2001. According to him, plaintiff has duly proved the execution of “will” dated 27.6.2001. He then contended that the findings recorded by both the courts below are contrary to record. 6 8. Mr. G.D. Verma, learned Senior Advocate has supported the judgment and decree passed by the first Appellate Court. 9. I have heard the learned counsel for the parties and have perused the records carefully. 10. The alleged “will” was executed on 27.6.2001 vide Ex.P-2. Plaintiff appeared as PW-1 and led his evidence by way of affidavit. He has given his date of birth as 5.10.1985. Harsawroop was his uncle. He used to live with his father. According to him, he, his father and mother rendered services to late Sh. Harsawroop. The expenses of marriage of Anju Goel were borne by his father late Sh. Kuldeep Shah. He lost his father on 15.10.2000. According to him, Kuldeep Shah purchased a shop from Jagdish Mehta in the name of Harsawroop. The testator executed will on 27.6.2001 in his favour due to love and affection. He further stated that last rites of Harsawroop were performed by him. According to him, the mutation Nos. 347 and 361 were got attested by the defendant behind his back. He was minor at the time when the suit was filed. The suit was filed through his mother. His father was J.B.T. Teacher. Deceased Harsawroop was running a utensils shop in Nalagarh. He used to live in a house in Ward No.5. His ration card 7 was separate. Marriage of defendant was solemnized in the year 1999. He has admitted that Kuldeep Shah, Suresh Bansal and Harsawroop were real brothers. He has also admitted that the sale deed was in the name of Harsawroop, though he has added that sale consideration was paid by his father. He could not disclose the name of the Typist, who has typed Ex.P-2. He has also admitted that neither late Harsawroop nor his mother ever disclosed about the “will” till the death of Harsawroop. 11. Plaintiff has produced PW-2 Inderjit, marginal witness. He has also led evidence by way of affidavit. According to him, he was known to Harsawroop. He was running a utensils shop in Nalagarh. He was unable to walk. His wife died in the year 1970-71. At that time, Anju was very small. Harswaroop executed a “will” on 27.6.2001 in favour of the plaintiff in the Court Complex, Nalagarh. The “will” was dictated by Dharminder Singh Rana to the Typist in his presence and in presence of Neelam Mittal. The contents of the “will” were read over and explained to him and his sister Neelam Mittal. Thereafter, he put his signatures and asked him and Neelam Mittal to sign the same. The “will” was presented to Sh. J.P. Rhanot. He entered the “will” in the register 8 and he read over and explained the same to Harswaroop. Sh. J.P. Rhanot obtained the signatures of Harswaroop on the “will” and also obtained signatures of both the marginal witnesses. In his cross-examination, he has deposed that the “will” was written by him in the Court Complex, Nalagarh. He could not disclose the name of Typist. He did not know what was dictated by Mr. Goldy Rana. He could not disclose the contents of the dictation. According to him, after dictating the “will” Dharminder Singh Rana went to the Court and his signatures were obtained in the Court Room by him and Neelam Mittal. According to him, Harswaroop was not in a position to climb the stairs. He has admitted that Harswaroop was maintaining separate ration card. He has admitted that he had cordial relations with the father of the plaintiff. 12. The plaintiff at the time of execution of the will was minor. His father was a teacher. It has not been established in what manner he was rendering services being minor to his uncle Harswaroop. He lost his father on 15.10.2000. He has not produced his mother to prove that she alongwith him and her husband was rendering services to late Sh. Harswaroop. Rather, it has come on record that Harswaroop was living 9 separately and was maintaining separate ration card. According to sales tax G.S.T/C.S.T. No.468 dated 26.11.1972, the number was issued in the name of three partners, namely, Suresh Kumar, Om Prakash and Harswaroop Dass. The name of the father of the plaintiff was not mentioned as partner. DW-6 Narender Kumar has brought original record pertaining to ration cards. He has exhibited copy of register as Ex.PX. The number of ration card of the plaintiff’s father was 1373 and the number of ration card of late Harswaroop was 374. According to Ex.D-1, defendant was the nominee of Harswaroop Dass. None of the witnesses have explained the mental health of the testator. It is also one of the circumstances, which the Court has to go into whether the “will” has been voluntarily executed or not. In the instant case, the scribe of the “will” Dharminder Singh Rana has not been produced by the plaintiff. One of the marginal witnesses, Neelam Mittal, in whose presence, according to PW-2, “will” has been executed, has also not been produced. These were the material witnesses, but have been withheld by the plaintiff. According to PW-2, the “will” was typed on dictation of Dharminder Singh Rana. However, his name has not been typed on the “will” Ex.P-2. His name has been incorporated with ink. 10 PW-2, as noticed above, has not disclosed what dictation Dharminder Singh Rana gave to the Typist. According to him, this fact was only in the knowledge of Dharminder Singh Rana and Harswaroop. He has also categorically admitted that the contents of Ex.P-2 were never read over after typing the “will”. According to him, signatures of Dharminder Singh Rana have been obtained in the Court Room by him and Neelam Mittal. At the time of taking signatures of Dharminder Singh Rana, Harswaroop Dass was not present. It has not been explained by the plaintiff that why the “will” was not placed before the Registrar for registration. It has also not been explained why the “will” was produced before the Notary Public. The Notary Public has not been examined though he was alive on 7.12.2005. He has died subsequently on 28.7.2006. Since Harswaroop had sent the marginal witness for signatures in the Court Room, he could easily move an application to Sub Registrar to register the will Ex.P-2. The marginal witness could not disclose the name of the Typist. Non-examination of Dharminder Singh Rana, Typist and Neelam Mittal cast serious doubt on the execution of the “will” dated 27.6.2001. 13. In order to prove that the will did not contain the signatures of Harswaroop, DW-8 Shamsher Singh 11 Malik, Handwriting Expert, was examined. According to his report, the disputed signatures marked Q-1 to Q-3 on the “will” Ex.P-2 have not been written by the same person, i.e. Harswaroop, who has written his signatures marked A-1 to A-4. The Court had also occasion to see the signatures on Ex.P-2. There is variance in the signatures on the “will” towards the end and on the margin. The Court can compare the signatures as per section 73 of the Indian Evidence Act. It is true that the evidence of the Handwriting Expert is not conclusive since identification of Handwriting Expert is not based on scientific basis, but in the present case, the variance in signatures on the will is visible to naked eye. In view of this, the application filed under order 41 rule 27 of the Code of Civil Procedure to establish that the signatures of Harswaroop were genuine is liable to be dismissed. The signatures of Harswaroop were found different in comparison with the standard signatures marked A-1 to A-4. 14. Now, the Court will advert why the defendant has been excluded from the “will”. In normal circumstances, defendant had to inherit the property of her father. She is the only child of her father. There are no cogent and convincing reasons even in the “will” why 12 she has been disinherited. In the insurance policy she has been made nominee. She has been married by her father. Though PW-1 has stated that his father had spent the money on her marriage, but there is no evidence to this effect. It is true that by way of “will”, natural heirs could be excluded, but some reason has to be given in the “will” for the exclusion of the natural heirs. Since this Court has already found that there are several circumstances surrounding the execution of the “will”, thus, it can safely be presumed that the defendant could not be excluded from the property. It has also come in the evidence that Harswaroop had also gone to the Court Complex, as such, he could get the will registered in case he was present in the Court Complex and there was no need for him to approach the Notary Public. It has also come in the evidence that he could walk, though he was suffering from disability. It is not borne out from the record whether the “will” was dictated by an Advocate or by testator or it was typed by the Typist at his own. Neither the Typist has been examined nor the Advocate has been examined. The plaintiff has failed to prove that the will Ex.P-2 was validly executed. No arguments were advanced by the learned Advocate assailing the decree passed in Cross- Objections 13 No. 25-N/2008 whereby the mesne profit was ordered @ ` 2,000/- per month from the date of possession of the plaintiff till its realization. 15. Their Lordships of the Hon’ble Supreme Court in Niranjan Umeshchandra Joshi versus Mrudula Jyoti Rao and others, (2006) 13 SCC 433 have held that it is for the propounder to remove suspicious circumstances by leading cogent evidence. Their Lordships have further held that it has also to be proved that testator had signed out of his free will having a sound disposition of mind and not a feeble and debilitated mind, understanding well the nature and effect thereof. Their Lordships have held as under: “32. Section 63 of the Indian Evidence Act lays down the mode and manner in which the execution of an unprivileged Will is to be proved. Section 68 postulates the mode and manner in which proof of execution of document is required by law to be attested. It in unequivocal terms states that execution of Will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the court and capable of giving evidence. A Will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Indian Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning 14 thereby, he must intend to attest and extrinsic evidence on this point is receivable. 33. The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. [See Madhukar D. Shende v. Tarabai Shedage (2002) 2 SCC 85 and Sridevi & Ors. v. Jayaraja Shetty & Ors. (2005) 8 SCC 784]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document.” 16. Their Lordships of the Hon’ble Supreme Court in B. Venkatamuni versus C.J. Ayodhya Ram Singh and others, (2006) 13 SCC 449 have held that while arriving at a finding as to whether the will was duly executed, the Court must satisfy its conscience having regard to the totality of the circumstances of the particular case. Their Lordships have held as under: “9. Akkayamma was not a highly educated lady. She received only primary education. She could only put her signature. She was otherwise worldly. She was of miserly nature. She was originally a resident of Arconam. She 15 knew the importance of registration of document as only a couple of days before her death, i.e., 29th September, 1968 she executed two deeds of settlement in favour of Respondents. We need not go into the question as to whether Plaintiffs-Respondents have sufficiently proved love and affection of Akkayamma for them, but, when a question comes up for consideration before a court in regard to grant of probate or Letters of Administration with a copy of the Will annexed thereto, it is trite that all circumstances should be taken into consideration. It may be true, as has been opined by the Division Bench of the High Court, that proof of execution of the Will in terms of Section 63 of the Indian Succession Act and Sections 67 and 68 of the Indian Evidence Act would be a pre-requisite, but, to take the same in evidence it is also trite that while arriving at a finding as to whether the Will has duly been executed or not, the court must satisfy its conscience having regard to the totality of the circumstances. The Will in question was executed on 23.3.1968. It was an unregistered one. She was ordinarily not a resident of District of Chittoor. She used to visit the said place occasionally. She did not know intimately the scribe of the Will, namely, P.W.1-Shri V. Thyagarajan. He was a teacher. There was no reason for Akkayamma to walk to his residence and ask him to scribe the Will. If P.W.1 was not a professional scribe, there may not be any particular reason as to why Akkayamma had chosen him for the said job. In the event of suspicion in regard to the genuineness or otherwise, the Will must be proved to have been executed in accordance with law establishing that the same has been done in presence of at least two witnesses. Although, the court should not approach the question with a suspicion that the Will is not a genuine one, the general guidelines laid down by this Court and the High Court in this behalf should be followed. The issue necessarily involves due appreciation of evidence. We may notice that in the Will Akkayamma described herself as the father's wife of Shri C.D. Jaya Singh. What 16 is meant by that is not known. While describing herself as the father's wife of C.D. Jaya Singh, it was stipulated that she had been having that status for the last 40 years. Our attention has been drawn to the findings of the learned District Judge by the learned counsel for Respondents that Akkayamma developed love and affection not only for Jai Singh, but also for his children through his first wife and particularly, the 3rd plaintiff who was his daughter. If that be the position, then why she had not bequeathed any property in her favour is difficult to understand. The learned District Judge enumerated nine circumstances which, according to him, were relevant for considering the proof of due execution and attestation of the Will in question, which are as under : 1. Akkayamma lived with Jai Singh, the father of the plaintiffs 1 to 3 and husband of plaintiff No.4 at Arkonam in Tamilnadu while the plaintiffs lived at Chittoor in Andhra Pradesh till Jai Singh and she died. 2. There are indications to show that the plaintiffs were against Akkayamma to some extent when the second plaintiff filed a suit for partition on the ground that Jai Singh squandered the property after he developed contact with Akkayamma. 3. There was no special reason for love and affection between them except that Akkayamma had no children. There was no reason for Akkayamma in particular to choose first plaintiff to bequeath the schedule properties ignoring all other similarly placed persons like plaintiffs 2 and 3. 4. Piecemeal disposal of her properties at different stages and different types of documents Exs. A.1, B.24 and B.25, namely, settlement deed looks unnatural. 5. Akkayamma leaving registered documents Exs. B.24 and B.25 just three day prior to her death as 17 against unregistered will six months prior to her death looks suspicious. 6. The will and settlement deeds almost read similar with same intentions consequently leading to a serious doubt. 7. The signature of Akkayamma on Ex.A.1 as Akkayamma Chevralu for the first time as against her usual signature on many documents including the settlement deeds Ex. B.24 and B.25 coming out just three days prior to her death with signature as Akkayamma speaks of something unnatural in the conduct of her. 8. The omission to mention the execution of Ex.A.1 will or the execution of such property in Exs. B.24 and B.25 is a strong circumstance leaving a serious suspicion on the conduct of Akkayamma. 9. The contents of Ex.A.1, which are conditional and contingent, appear to be unnatural." 14. Section 63 of the Indian Succession Act provides: "63. Execution of unprivileged wills._ * * * (a) the testator shall sign or shall affix his mark to will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. (c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign 18 the will in the presence of