IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA. No.: 98 of 2011. Decided on: 25.03.2011. ______________________________________________ Ashok Kumar and others. … Appellants. Versus Bhag Singh and others. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Appellants : Mr. Neel Kamal Sharma, Advocate. For the Respondents : None. Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree passed by the learned Additional District Judge, Ghumarwin, District Bilaspur in Civil Appeal No.10/13 of 2010, dated 15.12.2010. 2. Material facts necessary for adjudication of this regular second appeal are that the appellants/plaintiffs (hereinafter referred to as “the plaintiffs” for convenience sake) have instituted a suit for declaration to the effect that they alongwith proforma 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - respondent/defendant (hereinafter referred to as “the proforma defendant” for convenience sake) are owners in possession of the suit land being legal heirs of Tulsi Ram of the land to the extent of 21.16 bighas which is half share of the total land measuring 43.12 bighas comprised in Khasra Nos. 23, 25, 27, 28, 31, 34, 53, 54, 75, 76, 157/80, Kittas 11, Khata/Khatauni No.7/8, situate in village Bhagot, Pargana Tiun, Tehsil Ghumarwin, District Bilaspur and further declaration that the Will dated 20.6.2000 alleged to have been executed by Tulsi Ram is wrong, null and void and does not affect the rights of the plaintiffs in the suit land. According to the averments contained in the plaint, Tulsi Ram expired on 18.9.2002. According to them, deceased Tulsi Ram was unable to execute the Will as he was mentally ill due to shock of death of his only daughter, Smt. Rattani Devi. The suit was contested. On merits, it was stated that deceased Tulsi Ram was having one daughter, Rattani Devi and he died leaving behind two widows, namely, Jashodhan Devi and Savitri Devi. Deceased, Tulsi Ram had great love and affection towards Raman and Munish, respondents/defendants No.2 and 3 (hereinafter referred to as “defendants No.2 and 3” for convenience sake). He was looked after by Bhag Singh, father of Raman and Munish. According to the Will, 4 bighas of land situate at Kholiyan in village Bhagot has been given to the sons of Bhag Singh, i.e. defendants No.2 and 3. The trial Court framed the issues. The suit was dismissed by the learned Civil Judge (Junior Division), Court No.1, Ghumarwin, District Bilaspur on 23.12.2009. The plaintiffs preferred an appeal before the learned - 3 - Additional District Judge, Ghumarwin, District Bilaspur. He dismissed the same on 15.12.2010. Hence, this regular second appeal. 3. Mr. Neel Kamal Sharma, learned counsel for the appellants has strenuously argued that the Will dated 20.6.2000 was surrounded with suspicious circumstances. According to him, the Will has not been duly proved in accordance with law. 4. I have heard Mr. Neel Kamal Sharma, learned counsel for the appellants at length. 5. The Will, dated 20.6.2000 is Ex.DW-2/B whereby 4 bighas of land situate at Kholiyan in village Bhagot was bequeathed in favour of Raman and Munish and the remaining land was given by Tulsi Ram to his two widows, Jashodhan Devi and Savitri Devi. 6. Plaintiff, Ashok Kumar has led his evidence by filing affidavit Ex.PW-1/A. He has deposed that he alongwith his brother, Rakesh Kumar are the only issues of late Smt. Rattani Devi, who was daughter of deceased Tulsi Ram, thus, only Class-I heirs of Tulsi Ram alongwith his widows Jashodhan Devi and Savitri Devi. According to him, no Will was executed. The relations of plaintiffs with Bhag Singh were inimical. He has placed on record the copy of jamabandi for the year 1996-97, Ex.P-1. Ex.P-2 is the death certificate of late Tulsi Ram, who expired on 18.9.2002. PW-2, is the father of Shri Ashok Kumar. He was husband of Rattani Devi. He has led his evidence by filing affidavit Ex.PW-2/A. He has supported the version of PW-1. PW-3, Jashodhan Devi has led her evidence by filing affidavit Ex.PW- 3/A. According to her, Ashok Kumar and Rakesh Kumar are her - 4 - grand sons and Tulsi Ram was her husband. Rattani Devi was the only issue of Tulsi Ram. According to her, defendants never served Tulsi Ram. She has also reiterated that Bhag Singh has inimical relations with the plaintiffs. 7. Bhag Singh (DW-1) has led his evidence by filing affidavit Ex.DW-1/A. He has deposed that Raman and Munish are his sons. Tulsi Ram was his uncle. He was being looked after by him (Bhag Singh). He has executed the Will dated 20.6.2000 in a perfect state of mind in favour of Raman and Munish alongwith his widows Jashodhan and Savitri vide which 4.0 bighas of land at Kholiyan in village Bhagot was given to his sons. Tulsi Ram died on 18.9.2002. DW-2, Shri I.D. Sharma, Advocate has scribed the Will Ex.DW-2/B. He has led his evidence by way of affidavit Ex.DW-2/A. He deposed that on 20.6.2000, he had executed the Will at the instance of Tulsi Ram. Will was read over and explained to Tulsi Ram in presence of witnesses. Thereafter he put his signatures in presence of witnesses. According to him, Tulsi Ram was in a fit state of mind. DW-3 is the marginal witness of Will Ex.DW-2/B. He has identified his signature as well as of Tulsi Ram in the Will Ex.DW-2/B. He testified that the Will was executed in his presence by the scribe Shri I.D. Sharma at the instance of Tulsi Ram. Tulsi Ram requested him on 19.6.2000 to witness the Will. Ashok Kumar, DW-4 is the other marginal witness of the Will. He has led his evidence by filing affidavit Ex.DW-4/A. He has also deposed that Tulsi Ram was known to him as he belonged to - 5 - his Panchayat. He has put his signature on Ex.DW-2/B. He identified the signature of Tulsi Ram. 8. Defendant, Bhag Singh has duly proved the execution of Will Ex.DW-2/B. The Will was scribed by DW-2, Shri I.D. Sharma, Advocate. He has read over the contents of the same to Tulsi Ram, who after admitting the contents to be correct, put his signature on the Will in presence of the marginal witnesses DW-3 and DW-4. Will was registered on 20.6.2000. DWs-3 and 4, namely, Bhagwan Dass and Ashok Kumar have supported the version of DW-1 and DW-2. According to them, the Will was written by the scribe Shri I.D. Sharma, Advocate at the instance of Tulsi Ram in their presence and they have put their signatures in presence of the testator (Tulsi Ram). It is also borne from the appraisal of the statements of PWs-1 to 3 that Tulsi Ram was in a prefect state of mind and the last rites of Tulsi Ram were performed by Shri Bhag Singh. In fact, Bhag Singh is his real brother’s son (nephew of Tulsi Ram). PW-3, Jashodhan Devi has also admitted that Tulsi Ram was having love and affection towards the children of Bhag Singh, namely, Raman and Munish. 9. Mr. Neel Kamal Sharma, learned counsel for the appellants has strenuously argued that Class-I heirs of deceased Tulsi Ram have been left out in the Will and Tulsi Ram has not bequeathed the land in favour of Raman and Munish. The fact that Tulsi Ram has bequeathed the property in favour of Raman and Munish, will not make the Will suspect. He has only bequeathed 4 bighas of land out of love and affection in favour of Raman and Munish. The remaining - 6 - land has gone to his two widows Jashodhan Devi and Savitri Devi. The land was easily identifiable as per the contents of Will according to which testator had given 4.0 bighas of land situate at Kholiyan in village Bhagot, Pargana Tiun, Tehsil Ghumarwin, District Bilaspur to defendants No.2 and 3. The plea that Tulsi Ram was in shock after the death of his daughter Rattani Devi, cannot be accepted for the simple reason that Rattani Devi had expired 20 years before the execution of the Will. He was in a perfect state of mind at the time of execution of the Will. The learned Courts below have correctly appreciated the oral as well as documentary evidence. 10. Accordingly, in view of the above observations and discussion, there is no substantial question of law involved in this regular second appeal and the same is dismissed being devoid of any merit, so also the pending application(s), if any. No costs. (Rajiv Sharma), Judge. March 25, 2011. (sck).