IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 134 of 2002 & Cross-Objections No. 235 of 2002. Judgment reserved on: 01.08.2011. Decided on: 26.08.2011. Anokhi Ram. ..…Appellant. Versus Harnam Singh. …..Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting? Yes For the Appellant : Mr. Romesh Verma, Advocate. For the Respondent : Mr. K.D.Sood, Advocate. Kuldip Singh, Judge. This judgment shall dispose of RSA No. 134 of 2002 and Cross-Objections No. 235 of 2002, both having arisen from judgment, decree dated 21.12.2001 passed by learned Additional District Judge, Sirmour District at Nahan in Civil Appeal No. 35-N/13 of 2000 partly setting aside the judgment, decree dated 31.5.2000 passed by learned Sub Judge, Rajgarh in Civil Suit No. 167/1 of 1998. The defendant has filed the second appeal in which plaintiff has filed the cross-objections. 2. The facts, in brief, are that respondent had filed a suit for declaration and injunction alleging that Kaku Ram alias Tulsi Ram was owner in possession of land measuring 31 bighas 2 ______________________ Whether reporters of Local Papers may be allowed to see the Judgment? Yes 2 biswas to the extent of 100 shares out of 622 shares in land described in the plaint. Kaku during his last days of life used to live with one Santiya, but he was looked after by respondent. Kaku having satisfied with the services rendered by respondent, executed Will in favour of respondent in sound disposing mind. 3. The appellant also produced a forged and fictitious Will alleged to be executed by Kaku in his favour and mutation No. 143 dated 15.05.1997 was attested in favour of appellant behind the back of the respondent. Kaku had no reason to execute any Will in favour of appellant. The Will in favour of appellant is forged, fabricated and fictitious. The mutation No. 143 dated 15.05.1997 is also wrong and illegal. 4. The suit was contested by appellant by filing written statement. He took preliminary objections of maintainability, estoppel, locus-standi and cause of action. On merits, appellant denied that Kaku resided with Santiya, the respondent at no point of time looked after Kaku. It has been denied that Kaku had executed any Will in favour of respondent. The Will produced by respondent is forged and fictitious. Kaku used to sign, but the Will produced by respondent does not contain signatures of Kaku. The respondent is in the habit of manufacturing such documents. It has been denied that Will in favour of appellant is forged, rather the said Will was executed by the testator in sound disposing mind. 5. The Will relied by respondent is not genuine inasmuch as during the intervening night of 7th and 8th August, 1993, Kaku was suffering from ailment and was on death bed, he died on the same night. He was not in a position to understand anything. The 3 respondent in collusion with Bidhi Chand, Naib Tehsildar, procured false and fictitious Will from Kaku. The appellant looked after Kaku. The respondent, firstly, produced Kansho as wife of Kaku and got mutation sanctioned in her fovour which was rejected in appeal. It has been denied that mutation No. 143 dated 15.05.1997 is not valid or not binding on respondent. The suit land is in possession of appellant and respondent is out of possession. 6. On the pleadings of the parties, the following issues were framed:- 1. Whether deceased Kaku executed a last and valid Will in favour of the plaintiff? OPP. 2. Whether the deceased Kaku executed a last and valid Will in favour of the defendant on 14.1.1993? OPD 3. Whether the Will executed in favour of the plaintiff is a forged and fictitious? OPD. 4. Whether the Will executed in favour of the defendant is a forged and fictitious document? OPP. 5. Whether suit is not maintainable in the present form? OPD. 6. Whether the plaintiff is estopped by his acts, conduct , acquiescences from filing the present suit? OPD. 7. Whether plaintiff has no locus-standi to file the present suit? OPD. 8. Relief. The issues No.1 and 4 were answered in affirmative and issues No. 2, 3 and 5 to 7 in negative and the suit was partly decreed by learned Sub Judge on 31.05.2000. A decree of declaration was passed in favour of respondent that he is owner of the suit land on the basis of Will dated 07.08.1993 executed by Kaku alias Tulsi Ram in favour of respondent, the Will dated 14.01.1993 alleged to 4 be executed by Kaku Ram in favour of appellant is held to be forged, fictitious and not a genuine document. The mutation No. 143 dated 15.05.1997 sanctioned on the basis of the Will dated 14.01.1993 is illegal, null and void and not binding on respondent. The trial Court refused to grant injunction. 7. The learned Additional District Judge on 21.12.2001 partly allowed the appeal. The judgment, decree dated 31.05.2000 was set-aside to the extent that declaration of ownership of the suit land was given in favour of respondent on the basis of Will dated 07.08.1993 Ex. PW2/A. It was held that Will dated 07.08.1993 Ex. PW2/A is illegal, forged and fictitious. The Will dated 14.01.1993 was also declared illegal, forged and fictitious. The mutation No. 143 dated 15.05.1997 sanctioned on the basis of the Will dated 14.01.1993 Ex. DW2/A was also declared illegal, null and void. The dismissal of the suit qua the relief of injunction was upheld. The defendant has come in second appeal which has been admitted on following substantial questions of law:- (1) Whether the impugned judgment and decree of the learned Additional District Judge, Sirmour at Nahan, is dehors the evidence on record? (2) Whether the respondent could not have challenged the Will in favour of the plaintiff in view of the fact that this Will was held to be invalid by the trial Court? (3) Whether the impugned judgment and decree suffers from mis-reading and mis-appreciation of pleadings and evidence on record? 8. The respondent has filed cross-objections which are heard on following substantial questions of law:- 5 (1) That the learned District Judge has misconstrued and misread the basic document of title Ext. PW2/A the will dated 7.8.1993 executed by Shri Kaku alias Tulsi Ram in favour of the plaintiff. (2) That the due execution of the will Ext. PW2/A stood proved and suspicious circumstances for due execution of the will did not exist and in any case stood explained and as such the findings of the court below so far the will Ext. PW2/A are based on misreading of evidence besides being perverse, are liable to be set-aside. 9. I have heard the learned counsel for the parties and I have also gone through the record. The learned counsel for the appellant has submitted that deceased Kaku Ram had executed Will dated 14.01.1993 which has been proved on record. On the contrary, the respondent has failed to prove execution of Will dated 07.08.1993 by Kaku Ram in his favour. The suit is not maintainable as no relief of possession has been prayed, the respondent is not in possession of the suit land. The learned counsel for the respondent/objector has submitted that learned Additional District Judge has mis-construed and mis-read the material on record in holding that execution of Will Ex. PW2/A dated 07.08.1993 by Kaku Ram alias Tulsi Ram has not been proved. He has submitted that trial Court has rightly held due execution of the Will dated 07.08.1993. 10. The substantial question of law No. (2) is taken up first. The plaintiff is respondent in the second appeal. The respondent has projected the case that Kaku Ram had executed Will Ex. PW2/A dated 07.08.1993 in his favour. The respondent has challenged Will dated 14.01.1993 Ex. DW2/A claimed by 6 appellant to be executed by Kaku Ram in his favour. The trial Court has held that Kaku Ram had executed valid Will dated 07.08.1993 in favour of respondent. It appears due to typing mistake substantial question of law No.2 has not been properly framed. In fact, in view of dispute between the parties, the substantial question of law No.2 as framed does not emerge and, in these circumstances, no finding is required on substantial question of law No.2 and the same is disposed of accordingly. 11. The substantial questions of law No. (1) and (3) in the appeal and substantial questions of law No. (1) and (2) in the cross-objections are inter-connected and, therefore, all of them are taken up collectively for determination. Ex. PW2/A is the Will dated 07.08.1993, it is registered. Ex. DW2/A is the Will dated 14.01.1993 and is not registered. In Ex. DW2/A, it has been stated that the testator has no issue, but it has not been stated in this Will that testator has living wife or not. It has also not been stated how the testator is connected with Anokhi Ram. The Will Ex. DW2/A is allegedly signed by Kaku Ram in Hindi. It is typed in English. There is no certificate on this Will that the contents of the Will were read over and explained to the testator and after accepting the contents of the Will to be true, the testator signed the Will. 12. In Will Ex. PW2/A, it has not been stated whether testator Kaku Ram alias Tulsi Ram has any issue or living wife. This Will is allegedly thumb marked by Kaku. There is no certificate on this Will that the contents of the Will were read over and explained to the testator in vernacular and after accepting its contents to be true, he thumb marked the Will. In the plaint, there 7 is no averment whether deceased Kaku Ram alias Tulsi Ram has left behind any issue or wife. In the written statement also, nothing has been stated regarding any issue or wife of the deceased Kaku Ram. 13. PW-1 Harnam Singh has stated that Kaku died next day after the execution of the Will. He has stated that he knew Sui, wife of Kaku, who was living with Kaku. Sui and other relations of Kaku were not informed about his death. Sui is also known by the name of Kansho Devi. He admitted that suit land was mutated in the name of Sui, but in appeal the mutation was set-aside. Kaku was unable to move, he was ill for the last 6-7 months. He compromised the matter with Sui. Kaku did not know English. 14. PW-2 Santiya has stated that Kaku alias Tulsi Ram was his brother-in-law. Kaku Ram had sent him and Harnam Singh for preparing Will at Rajgarh. Kaku Ram did not accompany them. They got the Will prepared from petition writer. Kaku had two marriages, his first wife was Gauri, who died and second wife Kansho, who now lives with her parents. Kansho has no land. He has stated that Tehsildar read over Will Ex. PW2/A. Kaku put his thumb mark on the Will in presence of Man Singh, Jai Singh. Thereafter, the Will was signed by Man Singh and he also put his thumb mark in circle ‘D’. This witness has not clearly stated that he put his thumb impression on the Will in presence of Kaku Ram on the Will nor he has stated that Kaku Ram put his thumb impression on the Will in his presence. The Tehsildar has not been examined to prove that Will Ex. PW2/A which is in English was read over to Kaku Ram and after accepting its contents true, Kaku Ram put his thumb impression on the Will. 8 15. There is endorsement on Will Ex. PW2/A indicating that it has been drafted by petition writer, but that petition writer has not been examined. The endorsement on the Will further indicates that the Will has been drafted on the instructions of Harnam Singh. Thus, it can be safely concluded that respondent actively participated in the preparation of the Will Ex. PW2/A. The testator died following day after the execution of the Will. It has been proved on record that testator has left behind Kansho widow, but nothing has been stated in the Will about the widow by the testator nor any provision has been made for her in the Will. The execution of the Will has not been proved, in addition the Will is shrouded by suspicious circumstances. It has not been established by respondent that material evidence has been ignored by learned Additional District Judge in rejecting the Will Ex. PW2/A. The evidence in second appeal cannot be reappreciated. 16. The Will Ex. DW2/A is drafted by Sudhir Thakur, Advocate. The attesting witnesses of the Will are Prem Singh and Bararu Ram. The appellant has examined DW2 Prem Singh. He has stated that he, Kaku Ram, Bararu and Anokhi Ram went to Solan and met Sudhir Thakur, Advocate. He has stated that Will Ex. DW2/A was read over to Kaku Ram and after accepting its contents to be true, he put his signatures on Will Ex. DW2/A. He has put his signatures in circle ‘A’. He has not specifically stated that Kaku Ram signed on Will Ex. DW2/A in his presence as well as in presence of Bararu Ram nor he has clearly stated that he and Bararu Ram signed Will Ex. DW2/A in presence of Kaku Ram. He has also not made clear who read over the Will to Kaku Ram. Sudhir Thakur, Advocate, who allegedly drafted the Will has not 9 been examined. The statement of DW-2 indicates that Kaku Ram could not read the Will Ex. DW2/A, that is why DW-2 has said that Will was read over to Kaku Ram, but it has not been proved , who read over the Will to Kaku Ram. 17. DW-1 Anokhi Ram has stated that he had civil litigation with deceased Kaku Ram in the Court of Senior Sub Judge, Solan. Sudhir Thakur was his Advocate in that case. Kaku Ram had another Advocate. He could not tell whether that case was before the preparation of Will Ex. DW2/A. Kaku was owner of land, but it was in his possession. In the Will Ex. DW2/A, there is no reference of Kansho wife of Kaku Ram nor any provision has been made in the Will for Kansho. The appellant in his statement has admitted that he had litigation with deceased Kaku Ram. It is intriguing that even though Kaku Ram had litigation with appellant still he executed the Will in favour of appellant. In normal circumstance, a person having litigation with another person, would not execute the Will in favour of that person with whom he has the litigation. It has not been explained whether after the litigation the relations between Kaku Ram and appellant normalized. It is also surprising that Kaku Ram would rely on the Advocate of appellant, who represented appellant in the litigation against Kaku Ram. The appellant has not explained these unusual circumstances. The Will Ex. DW2/A is shrouded by suspicious circumstances. The execution of the Will Ex. DW2/A has not been proved in accordance with the requirement of Section 63 of the Indian Succession Act. The learned Additional District Judge has rightly recorded a finding that Will Ex. DW2/A has not been proved. 10 18. Additionally, it has come on record that Kaku Ram after his death left behind Kansho his widow. The appellant and respondent have claimed Wills Ex. DW2/A and Ex. PW2/A of Kaku Ram respectively in their favour which they have not proved. The respondent in the suit has not impleaded Kansho as party nor appellant filed an application in the suit for impleading Kansho as party in the suit. Both appellant and respondent want decision from the Court that Wills Ex. DW2/A and PW2/A were executed by Kaku Ram in absence of Kansho, natural successor of Kaku Ram, such attempt on the part of the appellant and respondent is not permissible inasmuch as in absence of Kansho widow of Kaku Ram, no such declaration can be given either in favour of appellant or respondent. 19. The Courts below have held that respondent is not in possession of the suit land. The learned counsel for the appellant has relied Ram Saran versus Smt. Ganga Devi AIR 1972 SC 2685 on the point that when plaintiff in the suit does not seek possession of the properties, but merely claims a declaration that he is owner of the suit property, the suit is not maintainable under Section 42 of the Specific Relief Act. There is substance in the submission of learned counsel for the appellant, the respondent has not been found in possession of the suit land by the Courts below and he has not prayed relief of possession in the suit. Therefore, the suit of the respondent is not maintainable. The appellant as well as respondent have failed to establish that learned Additional District Judge has mis-construed, mis- interpreted the pleadings, evidence. The learned lower Appellate Court has rightly appreciated the material on record and no fault 11 can be found that appellant and respondent have failed to prove execution of Wills Ex. DW2/A and Ex. PW2/A. The substantial questions of law No.(1) and (3) in the appeal are decided against the appellant. The substantial questions of law No.(1) and (2) in the cross-objections are decided against the respondent/objector. There is no merit in the appeal and cross-objections which are liable to be dismissed. 20. In view of above discussion, the appeal as well as cross-objections are dismissed with no order as to costs. ( Kuldip Singh ), August 26, 2011. Judge. (Krt)