IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 59 of 1998. Reserved on :24.3.2009 Decided on: March 27, 2009. Meena Kumari …Appellant. Versus Chhadmi & Others. ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes. For the Appellant : Mr. Vinay Thakur, Advocate vice Mr. T.R.Chandel, Advocate. For the respondents : Mr. D.N.Ronta, Advocate. Kuldip Singh , Judge This appeal has been directed against the judgment, decree dated 20.10.1997 passed by the learned District Judge, Shimla in Civil Appeal No. 55-S/13 of 1994, affirming judgment, decree dated 27.4.1994 passed by the learned Sub Judge 1st Class, Theog in Suit No. 118/1 of 1990. 2. The facts, in brief, are that the appellant was plaintiff who filed suit for mandatory injunction against respondents directing them to vacate house and kitchen etc. standing on Khasra No. 61, Chak Dadas and hand over possession to the appellant. The further case of the appellant is that she is daughter of Magni. Smt. Reli widow of Magni was step-mother of appellant. Smt. Reli died leaving behind appellant only heir and appellant 1 Whether reporters of Local Papers may be allowed to see the Judgment ? . Yes.. 2 succeeded entire estate of Reli and a mutation No.290 of Chak Dadas was attested on 8.6.1988 in favour of the appellant. 3. The appellant and Smt. Reli were co-owners in possession of land comprised in Khasra Nos. 79 and 61 measuring 15 biswas , Chak Dadas, Tehsil Theog. On Khasra No. 61 measuring 8 biswas, there is a double storey old house consisting of two rooms in each storey and a kitchen in one storey as well as threshing floor. The appellant is owner of eight shares and Smt. Reli had three shares in the land and structures. After the death of Reli, the appellant is exclusive owner of her estate including Khasra No.61 and structures built thereon. 4. After the death of Smt. Reli, respondent No.1 was allowed to stay in the house as licensee as she had no accommodation of her own. The respondent No.1 filed appeal against mutation No.290 which was dismissed on 17.1.1989. Thereupon, respondent No.1 was asked to vacate the house. 5. In February 1989, respondent No.1 approached the appellant and requested her to permit her to occupy the house for some time so that she could arrange alternative accommodation. The appellant orally permitted respondent No.1 to occupy the house for some time. The appellant terminated the license of respondent No.1 vide notice dated 20.3.1990 and asked her to hand over possession within one month from the date of receipt of notice. The respondent No.1 again sought time to vacate the house and appellant permitted her to stay in the house for two more months. On 31.7.1990, the appellant asked respondent No.1 to vacate the house but she again sought some time. Therefore, the appellant filed the suit. 6. The suit was contested by respondent No.1 by filing written statement and took preliminary objections of maintainability, valuation and necessary parties. On merits, it has been submitted that Smt. Reli had 3 executed a Will dated 26.11.1987 in favour of respondents. It has also been pleaded that respondent No.1 and her husband were inducted as tenants by Magni more than 20 years ago in lieu of payment of land revenue etc. and maintenance of Magni and Smt. Reli. The respondent No.1 and her husband maintained Smt. Reli and performed her last rites. It has been pleaded that appeal was filed against attestation of mutation No.290, the possession of respondent No.1 or her husband in the house as licensee was denied. It was also pleaded that in case respondents fails to prove tenancy and execution of Will, in that event, the respondents have become owners of the suit land by way of adverse possession. 7. In replication, appellant reiterated her stand. The learned trial Court had framed the following issues:- 1. Whether the defendant is a licensee to the suit property as alleged? ..OPP. 2. Whether the license has been terminated as alleged? ..OPP. 3. Whether the plaintiff is entitled for the relief of mandatory injunction as alleged? ...OPP. 4. Whether the suit is not properly valued for the purpose of court fee and jurisdiction as alleged? …OPD. 5. Whether the suit is not maintainable as alleged? …OPD. 6. Whether Smt. Reli has executed a legal and valid Will in favour of the defendant as alleged? If so its effect? ..OPD. 7. Whether the defendant is tenant over the suit property as alleged? ..OPD. 8. Whether the defendant has become owner in possession of the suit property by virtue of adverse possession as alleged? ..OPD. 9. Relief. 4 The issues No. 1, 2, 3, 4, 5, 7 and 8 were answered in negative and issue No.6 was answered in affirmative and the suit was dismissed on 27.4.1994. An appeal was filed by the appellant against the decision dated 27.4.1994 which was dismissed by the learned District Judge on 20.10.1997, hence this appeal which has been admitted on the following substantial questions of law:- 1. Whether the finding about the genuineness and validity of the Will, the subject matter of issue No.6 is vitiated by applying wrong tests by the courts below ignoring the well recognized principles of law mandating the propounder of Will to prove the Will by removing suspicious circumstances surrounding the Will as in the present case? 2. Whether the finding on issue No.6 is sustainable in view of the fact that the Court was obliged to see the effect of the Will, which, in case of valid proof of the Will could have been that the legatees are owners of the property in suit to the extent of share of Smt. Reli, which admittedly was 3/11th share? 3. This being a suit for ejectment/possession whether in the facts and circumstances of the case, the plaintiff was entitled to joint possession of the suit property and whether the judgments/decrees of the Courts are sustainable in law? 8. I have heard Mr. Vinay Thakur, Advocate, learned counsel for the appellant and Mr. D.N.Ronta, Advocate, learned counsel for the respondents and have also gone through the record. The learned counsel for the appellant has submitted that execution of Will Ex.DW-4/A dated 20.6.1987 has not been proved. The Will is shrouded by suspicious circumstances such as (i) natural heir has been disinherited, (ii) the testatrix was old lady and was suffering from paralysis and the Will was not executed in sound disposing mind and (iii) Will was not registered. He has also submitted that in case this Court is inclined to accept that the Will was duly executed then the appellant is entitled to declaration of her title on the 5 suit land to the extent of her share. The learned counsel for the respondents has submitted that two Courts below have appreciated the evidence on record and have recorded a finding of fact in favour of due execution of Will Ex.DW-4/A. In second appeal, the evidence cannot be re- appreciated. The Will was executed by the testatrix in sound disposing mind. The respondents maintained and looked after Smt. Reli. The appellant is not entitled to declaration as contended by the learned counsel for the appellant in the suit for mandatory injunction. Substantial questions of law No.1 & 2: 9. The substantial questions of law No.1 & 2 are inter-connected, therefore, these substantial questions of law are taken up together for disposal. The Will is required to be executed in accordance with Section 63 of the Indian Succession Act. DW-4 Joginder Lal has stated that in the year 1987 he was a panch in Theog Panchayat, he knew Reli. She got executed Will Ex.DW-4/A from him which was scribed by him on the instructions of Reli. The Will was scribed in presence of Dasia Ram, Nambardar and Durga Dutt. Reli was in sound disposing mind. There was no threat or pressure on her. The Will was read over to her and after admitting it to be correct, Reli put her thumb mark on the Will, witnesses also put their thumb marks on the Will. Reli used to live with respondent No.1 at that time. DW-5, Dasia Ram has stated that he knew Reli, who executed Will Ex.DW-4/A in his presence. The Will was written by Joginder, Durga was also there. He identified his signatures on the Will which was read over to Reli and after accepting its correctness, he, Durga Nand, Joginder and Reli signed the Will. The Will was got executed by Reli voluntarily without any fear and pressure. DW-1 Chhadmi has stated that husband of Reli died 30 / 35 years ago. She has also stated that her husband was brought by Magni and Reli. She was got married with Nand Lal by Reli. She used to cultivate the land of Reli. Reli had an attack of 6 paralysis 7 / 8 years ago. The last rites of Reli were performed by her and she looked after Reli during her life time. Meena Kumari never looked after Reli. She even did not came when Reli died. 10. PW-1 Meena Kumari has stated that she does not know whether Reli had put her thumb mark on Ex.DW-4/A. She has also stated that Magni had died 35/36 years ago. Meena Kumari is resident of village Ghund and she has stated that Ghund is at a distance of 30- 35 Kilometers from Dadas. She was married 29 years ago. 11. The learned counsel for the appellant has submitted that natural heir has been ignored in Will Ex.DW-4/A and, therefore, it is a suspicious circumstance. The execution of the Will is primarily to deviate line of succession, otherwise, the property in absence of Will would go to natural heirs. Therefore, simply because natural heir has been ignored in the Will, in preference to some other person that in itself is not a suspicious circumstance and on this ground alone, it cannot be said that Will Ex.DW- 4/A is shrouded by suspicious circumstance. The learned counsel for the appellant has submitted that the testatrix was not in sound disposing mind and was not keeping good health at the time of alleged execution of the Will. DW-4 Joginder lal has specifically stated that Reli was in sound disposing mind at the time of execution of the Will which was executed without any fear or pressure. The Will was read over to her and she accepted its correctness. DW-5 Dasia Ram has also stated that Will was read over to Reli, who accepted its correctness. The cumulative effect of the above evidence is that Reli at the time of execution of Will was capable of understanding what is wrong and what is right. She was not suffering from such disease affecting her mental faculties. 12. PW-1 Meena Kumari in her statement has nowhere stated that Reli was not capable of understanding and the Will was got executed by respondents from Reli by mis-representation or Reli could not 7 understand what she had done when Will Ex.DW-4/A was prepared. The execution of the Will is a finding of fact. The two Courts below have recorded a finding that the Will Ex.DW-4/A was duly executed by Reli. The learned counsel for the appellant has also submitted that Will Ex.DW- 4/A is not a registered document and, therefore, it is also a suspicious circumstance. The Will does not require compulsory registration. The appellant has failed to make out any case that Will Ex.DW-4/A was not validly executed. The substantial questions of law No.1 & 2 are decided against the appellant. Substantial question of law No.3: 13. In support of substantial question of law No.3, the learned counsel for the appellant has submitted that the respondents have not denied that appellant is a co-sharer in the land, therefore, the appellant is entitled to declaration of her title and joint possession on the suit property. In support of this contention the learned counsel for the appellant has relied Firm Srinivas Ram Kumar Vs. Mahabir Prasad and others, A.I.R. 1951, S.C. 177. This judgment is not applicable in the facts and circumstances of the case inasmuch as in that case it has been held that where in a suit for specific performance of a contract, in part performance of which the plaintiff alleges to have paid the defendant some money, the defendant denies the contract and pleads that the money was taken by him as a loan, the Court can pass a decree for recovery of the loan in favour of the plaintiff on his failure to prove the contract even though the plaintiff had failed to plead and claim relief on this alternative case. This is not the situation in the present case. The respondents in the present case have not admitted the case of the appellant. The respondents took the defence of Will Ex.DW-4/A in support of their title on the suit property. The suit for mandatory injunction on the basis of defence cannot be converted into a suit for declaration and joint possession. The appellant has also relied 8 Corporation of the City of Bangalore Vs. M. Papaiah and another, AIR 1989, S.C. 1809, on the point that suit for perpetual injunction cannot be dismissed on the ground that in the relief declaration of title has not been specifically mentioned. This is again not the point before this Court in the present case. The appellant has not been non-suited on the ground that in the relief declaration has not been prayed in the suit. The appellant has not made out a case for mandatory injunction as the respondents have proved their title on the basis of Will Ex.DW-4/A. The appellant in the suit filed by her is not entitled to declaration and joint possession, hence substantial question of law No.3 is decided against the appellant. 14. No other point was urged. 15. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ) Judge. March 27, 2009. (GR)