IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No.32 of 2003 Judgment reserved on 31.5.2007 Date of decision 6.8.2007 Bakshi Ram Appellant Versus Smt.Kaushlya Devi and anr. Respondents Coram: The Hon’ble Mr.Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the appellant: Mr.O.P.Thakur, Advocate. For the Respondents: Mr.Lovnesh Kanwar, Advocate, for respondent No.1. Rajiv Sharma,J. A challenge has been laid in this second appeal to the judgment and decree passed by the learned Additional District Judge, Mandi on 30.10.2002 in Civil Appeal No.67 of 1997. The brief facts necessary for the adjudication of this appeal are that respondent-plaintiff hereinafter referred to as the plaintiff for convenience sake, had filed a civil suit in the court of Sub Judge Ist Class, Sarkaghat for declaration with consequential relief for injunction or in the alternative for possession. One Sunka Ram deceased was owner in possession to the extent of half share of the land comprised in Khewat Khatauni No.44/46,Kita 6, measuring 0-67-13 hectares , situate in Village Plassi and owner in possession of land comprised in khewat khatauni No.72/75 kita 1 Whether reporter of local papers are allowed to see the judgment ? No. 2 3, measuring 0-16-92 hectares situate in Village Darkohli. He died on 2.2.1992. The defendant Bakshi Ram is the son of deceased Sunka Ram. The plaintiff Smt.Kaushalya Devi and the defendant Bakshi Ram are the legal heirs of deceased Sunka Ram. The plaintiff had challenged the validity of Will dated 1.11.1991 by way of civil suit. The defendant No.1 had filed a written statement to the plaint filed by the plaintiff. The trial court on the basis of the pleadings of the parties had framed the following issues: 1. Whether the Will executed by deceased Sunka Ram dated 1.11.1991 is null and void, as alleged ?O.P.P. 2. Whether deceased Sunka executed a legal and valid Will in sound state of mind on dated 1.11.1991, as alleged ? P.P.D. 3. Relief. The trail court had recorded the following findings on the above issues: Issue No.1 Yes Issue No.2 No Relief Suit decreed with costs. The learned trial court on the basis of oral and documentary evidence had decreed the suit on 22.5.1997 and had declared the Will Ex.D-2 dated 1.11.1991 null and void and not binding on the rights of the plaintiff. The defendant had carried an appeal against the judgment and decree dated 22.5.1997 passed by the learned Sub Judge Ist Class, Sarkaghat before the learned Additional District Judge, Mandi on 18.6.1997. The learned Additional District Judge had framed the following points for consideration: 1. Whether the impugned judgment and decree is liable to be interfered? 3 2. Final order. The learned Additional District Judge had recorded the following findings on the above points: Point No.1 No Point No.2 Appeal dismissed and the impugned judgment and decree of the trial court is affirmed as per operative portion of the judgment. The appeal was dismissed by the Additional District Judge, Mandi on 30.10.2002. The second appeal was admitted on the following substantial question of law : Whether the Will D2 is a valid document and was properly proved, executed/registered in accordance with the law? I have heard the learned counsel for the parties and have also gone through the record carefully. The Will was executed by Sunka Ram in favour of the defendant appellant on 20.11.1991. There are two scribes of the Will in question. Baldev Singh (DW-2) had scribed the Will but the addresses of the attesting witnesses were written on it by Krishan Chand (DW-4), Inder Singh, DW-3 had registered the Will while he was posted as Tehsildar in the year 1991. DW-2 Baldev Singh document Writer, Baldwara had stated that on 1.11.1991 he had scribed the Will Ex.D-2 at the instance of Sunka Ram. DW-4 Krishan Chand the another document writer had stated that Will Ex.D-2 was scribed by Baldev Singh petition writer on 1.11.1991 and addresses of the witnesses were written by him on the Will. He had stated that Sunka Ram at the time of execution of the Will was in sound mental state. He had stated in cross-examination that he was called by the Sub Registrar and asked to write addresses of the witnesses on the Will but no 4 signatures were appended on the Will by Sunka Ram. DW-5 Sunka Ram attesting witness had stated that the Will Ex.D-2 was executed by deceased Sunka Ram in favour of his son on 20.11.1991 in the court of Sub Registrar and his signatures on the Will were mark ‘X’ and that of Sunka Ram mark ‘C’. DW-3 who had registered the Will had stated that he was posted as Sub Registrar and Naib Tehsildar in the year 1991 and the Will Ex.D-2 was presented before him by Sunka Ram. Admittedly the Will has been scribed by two witnesses i.e. DW-2 Baldev Singh and DW-4 Krishan Chand. DW-6 Sohan Singh had stated that on 20.11.1991 the Will was produced by deceased Sunka before the Sub Registrar, He had stated that the Will was already written and addresses of the witnesses on the Will were written by the petition writer Krishan Chand and he had read out and explained the contents of the Will to Sunka Ram and other witnesses. The Sub Registrar was not required to direct DW-4 to write the addresses of attesting witnesses on the Will. DW-5 Sunka Ram and DW- 6 Sohan Singh had not categorically stated that the Will in question was read over to deceased Sunka Ram. None of the witnesses had testified that Sunka Ram had appended his signatures on the Will in their presence. The manner in which the Will has been scribed by two witnesses and the active participation by the Sub Registrar at the time of the execution of the Will casts suspicion on the very execution of the Will. Even the Sub Registrar while appearing as DW-3 had admitted in his cross-examination that the marginal witnesses did not put their signatures in his presence. The marginal witnesses had contradicted the statement of DW-3 by stating that they had put their signatures in the presence of registering authority. The marginal witnesses had given contradictory 5 statements with regard to the place where Sunka Ram had appended his signatures. In view of the detailed discussion above, no fault could be found with the findings of the courts below and the present appeal filed by defendant-appellant Bakshi Ram is liable to be dismissed, especially when no question of law much less any substantial question of law arises for determination in this appeal. Hence the present appeal is dismissed. August 6,2007(g) ( Rajiv Sharma ),J. .