IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Regular Second Appeal No. 283 of 1995. Judgment reserved on 13th March, 2008. Date of Decision: 24th March, 2008. Chuni Lal …..Appellant Versus Mohinder Singh and others …..Respondents. Coram The Hon’ble Mr. Justice Dev Darshan Sud,Judge. Whether approved for reporting?1 For the Petitioner: Mr. Ajay Sharma, Advocate. For the Respondents: Mr. Bhupinder Gupta, Sr. Advocate, with Ms. Charu Gupta, Advocate. Mr. Anuj Nag, Advocate, for respondent Nos. 4 and 5. Dev Darshan Sud, Judge. This appeal has been preferred by the plaintiff against the judgment of the learned District Judge, Kangra at Dharamshala, reversing the judgment and decree passed by the learned Senior Sub Judge in favour of the appellant-plaintiff granting a decree for declaration to the effect that he along with proforma defendants is owners in possession of the land owned and possessed by late Shri Chuhru Ram to the extent as described in the plaint having inherited 1 Whether Reporters of Local Papers may be allowed to see the judgment? - 2 - the same by virtue of a registered Will dated 16.8.1982 Ext. PW- 2/A. The appeal preferred to the learned District Judge, by the contesting respondent Smt. Asso Devi succeeded and the judgment of the learned trial court was set aside. The plaintiff is now in appeal. The appeal was admitted on 18.5.1996 on the following substantial question of law:- “Whether the District Judge while reversing the well considered decree and judgment of trial court has misread and mis- appreciated the oral and documentary evidence on record to hold that the Will Ext. DW-2/A in favour of appellants-plaintiffs was not valid will being shrouded in suspicious circumstances.” The plaintiff instituted a suit praying for a decree of declaration to the effect that he along with Harpal Singh and Barfi Ram are the owners in possession of the land. It was pleaded that late Shri Chuhru Ram was not married to respondent-contesting defendant Smt. Asso Devi and that she was living with him as his concubine. Before his death, he executed a Will Ext. PW-2/A in favour of plaintiff on 16.8.1982 which was duly registered. A further allegation against the plaintiff is that an unregistered Will dated 14.12.1983 was alleged to have executed by the deceased in favour of the contesting defendant Smt. Asso Devi. Proceeding for its registration were instituted before the Sub-Registrar who - 3 - dismissed the case for default on 25.3.1987, but granted registration on 29.7.1988. This Will Ext. DW-2.A, according to the plaintiff is forged and was never executed by late Chuhru Ram. As a consequence it was pleaded that the estate of Chuhru Ram cannot abide by the directions as issued in this Will. An alternative averment has been made that the Will has been made by fraud, collusion and misrepresentation as it was got prepared by the defendants-respondents in collusion with scribe and the marginal witnesses. They are related to each other and the disposition of the appellant to this Will is invalid. The suit of the plaintiff has been resisted by the defendants on a number of grounds. It is pleaded that Ext. DW-2/A which is Will is last testament and that the averments to the contrary made by the plaintiff are not correct. The learned trial court decreed the suit of the plaintiff holding that the execution of the Will Ext. DW-2/A was not validly executed. Learned trial court conjectured that the document was forged and is outcome of fraud and collusion. How this collusion was reached is not clear from the judgment. In any event, the discussion preceding this finding shows that learned trial court held that late registration of the Will, the scribe of the will being related to the grantee did not at all establish that the execution of the Will was surrounded by suspicious circumstances. I have heard learned counsel for the parties and have gone through the record. Learned counsel for the appellant has urged that the learned trial court was in error in reversing the well - 4 - conversant judgment of the trial court. He submits that circumstances as noticed and evaluated by the learned trial court have been light brushed aside. The appeal, therefore, deserves to be accepted. Adverting to the first question of law which requires to be noticed and considered is that the learned trial court has rightly held that no particulars as required under Order 6 Rule 4 of the Code of Civil Procedure which constitutes fraud, misrepresentation etc. have not been pleaded. The law on this point has been settled in Bishundeo Narain & another vs. Seogeni Rai & others AIR 1951 SC 280. It was held:- “24. We turn next to the questions of undue influence & coercion. Now it is to be observed that these have not been separately pleaded. It is true they may overlap in part in some cases but they are separate & separable categories in law & must be separately pleaded. 25. It is also to be observed that no proper particulars have been furnished. Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence & coercion, the parties pleading it must set forth full particulars & the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any Ct. ought to take notice, however strong the language in which they are couched may be, & the same applies to undue influence & coercion. See O. 6, R. 4, Civil P.C.” - 5 - This was principle of law as reiterated in Varanasaya Sanskrit Vishwavidyalaya and another vs. Dr. Rajkishore Tripathi and another AIR 1977 SC 615 ( paragraph-9). In Afsar Sheikh and another vs. Soleman Bibi and others (1976) 2 SCC 142, the Hon’ble Supreme Court held that it is not possible to spell out a plea of undue influence merely from the factum of relationship of the parties and the pleadings should indicate facts with certainty. Precedent on the point need not be multiplied. Needless to say that Order 6 Rule 2 of the Code of Civil Procedure requires that the pleadings should be precise with all material facts. In Ram Sarup Gupta v. Bishun Narain Inter College (1987) 2 SCC 555 , the Hon’ble Supreme Court has held that all necessary and material facts should be pleaded by the party in support of the case set up by it. In the absence of such pleading, evidence produced by the parties cannot be considered. In D.M. Deshpande and others vs. Janardhan Kashinath Kadam and others (1998) 8 SCC 315, the Hon’ble Supreme Court has reiterated its earlier decisions holding that the material facts need to be pleaded in support of the plea set up by a party. In the present case merely because of the nearness of relationship between the scribe and the beneficiary of the Will, there can be no presumption that undue influence fraud or coercion was exercised. The material facts necessary for establishing such a plea had not only to be pleaded but proved. The nearness of the - 6 - relationship between scribe and the beneficiary of the Will is undisputed. The fact that the beneficiary of the Will is none other than legally wedded wife of the testator cannot be lost sight of. In these circumstances, it becomes difficult to accept the contention of the appellant that the testamentary disposition is out come of the fraud, coercion and collusion etc., as alleged. Paras 8 and 9 of the amended plaint may also be noticed:- “8. That the defendant No. 1 (after the death of late Chuhru Ram) produced an unregistered Will dated 14.12.1983 allegedly executed by late Chuhru Ram and applied for registration of the same before the Sub- Registrar, Kangra and the same was illegally ordered to be registered on 29.7.1988, despite the fact the case was dismissed for default on 25.3.1987. The unregistered Will dated 14.12.1983 is a forged and was never executed by late Chuhru Ram and is, therefore, null and void document. Hence, the order dated 29.7.1988 of Sub-Registrar, Kangra is also illegal, null and void. 9. That in case the said alleged Will dated 14.12.1983 is not proved to be forged one, then the alleged Will dated 14.12.1983 is an outcome of fraud, collusion and misrepresentation and late Chuhru Ram never executed the same in his sound disposing state of mind and never understood the contents of the said alleged Will. The alleged Will was got prepared by the defendant No. 1 in collusion with scribe and marginal witnesses. The defendant No. 1 scribe and marginal witnesses are related to one another and by colluding with one another played a fraud with late Chuhru Ram by - 7 - misrepresenting the true facts. Late Chuhru Ram never intended to execute another Will and that is why the alleged Will was never got registered by him as the same was not within his knowledge and possession. Had Chuhru Ram any intention of executing another alleged Will in the presence of earlier valid Will dated 16.8.1982 then late Chuhru Ram would have also got the alleged Will dated 14.12.1983 scribed and registered at Dharamshala as late Chuhru Ram did in the case of earlier valid Will dated 16.8.1982. Hence, the alleged Will dated 14.12.1983 is illegal, null and void document can never be acted upon. The alleged Will dated 14.12.1983 was ordered to be registered in connivance with the Sub-Registrar, Kangra and the order is null and void.” On the other points urged by the learned counsel for the appellant, the learned District Judge has given a detailed consideration to each and every point urged. One of the points for trial before the learned trial court was whether defendant No. 1, namely, Smt. Asso Devi is the legally wedded wife of the deceased testator. Learned trial court held the contention of the appellant- plaintiff to the contrary that she was a concubine was not established on the record. The marriage between the testator and the defendant was held to be legal and valid. This issue is being considered as both Wills have to be evaluated in this background. Will set up by the plaintiff Ext. PW-2/A is a registered Will and recites that the property is being given to the plaintiff as he has no offspring from his two wives namely Kaufu and Asso, the present - 8 - defendant. It says that the property is being given to Chuni and he is staying with him and also looking after him. This Will is registered on 16.8.1998 vide Ext. PW-3/A. The Will set up by the defendant was admittedly registered after the death of the contesting defendant-respondents. It is a simple document and there is no complication in disposition made by the testator. It recites that the Will was executed by him prior to the execution of the present Will and the present Will Ext. DW-2/A has been executed for the reason that the plaintiff is not looking after him. In both these Wills defendant-respondent Smt. Asso Devi has been acknowledged by the testator to be his wife. There is nothing on the record to suggest that the contesting defendant had pressurized the testator to execute this Will, he was not in a sound disposing mind or that the disposition made by him is unnatural. It is undisputed that the registration of this Will was contested by the plaintiff. Vide Ext. D- 1 the Sub-Registrar, Kangra has granted registration after due opportunities having been given to both the parties to prove their respective contentions. Needless to say that the question of fraud was also raised before the Registrar who on a consideration of the material before him rejected this contention. Learned counsel for the appellant submits that the case was dismissed in default vide order Ext. P-7 and therefore, this is a clear indicator that the Will set up by the contesting defendant is shrouded by suspicious circumstances. This contention cannot be accepted. Merely - 9 - because the case has been dismissed in default would not mean that the document is not genuine. Learned counsel for the appellant places reliance on Kulwant Kaur and others vs. Gurdial Singh Mann and others (2001) 4 SCC 262 to urge that a perverse finding is itself a substantial question of law. He submits that law is well settled. Substantial question of law depends upon the facts and circumstances of each case. He places reliance on a decision of the Supreme Court in Pankaj Bhargava and another vs. Mohinder Nath and another (1991) 1 SCC 556 holding that a substantial question of law would depend upon the facts and circumstances of every case. He submits that proper test for determining this point would be as to whether such question directly and substantially effects the rights of the parties, not necessarily a question of public importance. He also relies upon a decision of the Hon’ble Supreme Court in Santosh Hazari vs. Purushottam Tiwari AIR 2001 SC 965 in support of his proposition. There is no dispute about this proposition of law as laid down by the Hon’ble Supreme Court. However, when applied to the facts of the present case, I do not find that learned appellate court has committed an error in appreciation of the evidence or the facts on record. Each and every circumstance urged by the appellant before the learned trial court, has been considered in its entirety on the basis of the entire case law cited before the court. Merely because the scribe was related to the beneficiary of the Will would not make any suspicious circumstance - 10 - more especially when she is legally wedded wife of the testator who has acknowledged and accepted this fact in both the Wills which were set up. The later Will set up by the respondent is also registered and the appellant had the advantage of contesting its validity before the Registering Officer having subsequently objected to its execution. The Will which has been written is in simple language acknowledging the respondent to be the legally wedded wife of the testator and recognizing that the Will is being executed because the plaintiff was not looking after the testator. The Will has been duly proved to have been executed under Section 63 of the Indian Succession Act as required under Section 68 of the Indian Evidence Act. I have been unable to find any circumstance on the record which would point out to the suspicious nature of the execution of the Will or the disposition of the property. Even accepting that no question of importance of the general public is required, I do not find any merit in this appeal which is accordingly dismissed. There shall be no order as to costs. 24th March 2008 (Dev Darshan Sud), (cm) Judge.