IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 483 of 2001. Judgment reserved on 15.11.2011. Date of decision: 28 .11.2011 _________________________________________________ Parkasho Devi and others ….Appellants. Versus Bhajni Devi (deceased) through her LRs. ….Respondents. Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 Yes For the appellants : Mr. H.K. Bhardwaj, Advocate. For respondents : Mr. N.K. Thakur, Advocate. Surinder Singh, J. The learned District Judge affirmed the dismissal of the judgment and decree passed by the learned trial Court in Civil Suit No. 66 of 89 RBT No. 2/1995/89 vide his judgment dated 15.6.2001 as such, the appellants hereinafter referred to as ‘the plaintiffs’ filed the present regular Second Appeal which was admitted on the following substantial questions of law: 1 Whether the reporters of Local Papers may be allowed to see the judgment ? - 2 - (i) Whether the real daughters could have been ignored by Smt. Bhagti from the ancestral property by executing a Will Ext.D-1?. (ii) Whether the courts below were legally right in ignoring the Will Ext. PW2/A, whereby the three daughters were given equal shares and rights of the property in a free and disposing mind? (iii) Whether the second Will is a suspicious and not genuine one due to the circumstances that the same was executed a day earlier of the executant’s death? 2. Facts giving rise to the present appeal can be stated thus. Smt. Bhagti widow of Karma had three daughters Prakasho, Bhajni and mother of plaintiffs Diwan Chand and Harbans Singh co-plaintiffs. She was owner in possession of the suit property and died on 15.2.1989. The case of the plaintiffs is that Smt. Bhagti had executed the Will Ext. PW2/A on 13.7.1987 in favour of her above plaintiff daughter, including the defendant and 1/3 share to co- plaintiffs Diwan Chand and Harbans. After the death of Bhagti, on the basis of Will aforesaid, the parties to the suit claimed their joint possession. It is alleged that respondent hereinafter referred to as ‘the defendant’ Bhajani Devi started causing forcible - 3 - possession of the entire suit land hence the plaintiffs filed the present suit. 3. The suit was resisted and contested by the defendant. Defendant alleged the Will Ext. D-1 dated 14.2.1989 having been executed by her mother Smt. Bhagti in her favour on the basis of which she claimed the exclusive possession of the suit land. It was also the case of the defendant that on the basis of the said Will, the mutation was also accepted and attested on 18.5.1989 and prayed for the dismissal of the suit. 4. In replication, the Will in favour of defendants has been disputed. The learned trial court on the basis of the pleadings of the parties framed the following issues:- (i) Whether Smt. Bhagti executed a valid and last Will dated 13.7.1987 in favour of the parties, as alleged? OPP (ii) Whether Smt. Bhagti executed a last and valild will dated 14.2.1989 in favour of the defendant, as alleged OPD. (iii) Relief. 5. After the complete trial, the learned trial Court came to the conclusion that the earlier Will Ext. - 4 - PW2/A in favour of the parties stands cancelled by the subsequent Will Ext. D1 by the testator and it was the last Will of Smt. Bhagti in favour of the defendants. Thus, the suit filed by the plaintiffs was dismissed. 6. Plaintiffs were unsuccessful in appeal before the learned District Judge as such filed the present appeal. 7. Mr. H. K. Bhardwaj, learned counsel for the plaintiffs vehemently argued that the Will propounded by the defendant is shrouded by the suspicious circumstances firstly on the ground that it was alleged to have been executed a day earlier to the death of the testator Bhagti and further that near heirs of the deceased were ignored without any rhyme and reasons and also that the suit property was an ancestral one and the plaintiff daughter was ignored. 8. On the other hand, Shri N.K. Thakur, learned counsel for the defendant supported the issue-wise findings of the learned trial court and its affirmation by the learned first appellate Court. He also ventilated that the suit land was not an ancestral - 5 - property qua the plaintiffs nor this plea was ever raised by the plaintiffs before the Courts below hence cannot be taken cognizance of. 9. I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the record. 10. Section 63 of the Indian Succession Act governs the execution of the Will. The analysis of Section 63 shows that the testator must sign or affix his mark on the Will or the same shall be signed by some other person as per his direction and in his presence. The signature or mark of the testator or the signature of the person signing for him shall be placed in a manner which may convey the intention of the testator to give effect to the writing as a Will, which is also required to be attested by two or more persons, each of whom must have seen the testator sign or affix his mark on the Will or some other person sign the Will in the presence or as per the direction of the testator. If the witness has received a personal acknowledgement from the testator of his signature or mark or the signature of other person signing on his behalf, then it is not necessary that both the - 6 - witnesses shall simultaneously remain present. The section also lays down that no particular form of attestation is necessary. 11. The careful scrutiny of the pleadings of the parties and the evidence adduced by them shows and proves that DW2 Chint Ram is scribe of the Will dated 14.2.1989 which was written by him in Urdu on the dictation of Bhagti. He testified that at that time Bhagti was in perfect senses and was aware of her good and bad. He further stated that after writing the Will, it was read over and explained to her. After admitting its correctness, she appended her thumb impression thereon in the presence of marginal witnesses Ram Chand, Jagdish Ram and Jagat Ram who also signed in her presence. He admitted the suggestion that whatever Bhagti dictated, he jotted it down on the paper. He also clarified in the middle of the cross-examination in the last page that he had not prepared the draft of the will but it was only Ext. D1 which was dictated and prepared on the spot. He also stated that though Bhagti was ill but she could walk and talk properly. No suggestion was - 7 - thrown to him that she was not in a free disposing state of mind. 12. DW3 Jagat Ram is an attesting witness. DW2 Chint Ram had scribed the Will at the instance of Bhagti who was in her perfect mental state and senses and could understand her good and bad. He further stated that whatever Bhagti dictated, it was penned-down by Chint Ram on Ext. D1. After its completion, it was read over to her. She admitted its correctness, thereafter appended her thumb impression in his presence and also in the presence of other witnesses Ram Chand and Jagdish Chand. Thereafter he and Jagdish Chand appended their signatures as the attesting witnesses and Ram Chand put his thumb impression. In cross examination, he stated that Bhagti did not talk to him with respect to the earlier Will. 13. DW4 Jagdish Singh is the member of the viradari of the plaintiffs. He also corroborated the version given by DW3 aforesaid and categorically stated that he had signed in Hindi the said Will in the presence of the testator. This witness was a lumberdar and Pradhan of the village at that time. - 8 - He was also subjected to the cross examination but nothing material could be extracted from him which could favour the plaintiffs. Thus Will Ext. D1 dated 14.2.1989 makes the reference of the earlier Will in favour of the parties but by the latest Will, she intended to bequeath the entire property in favour of defendant as the other beneficiaries of the will did not care for her and maintained her. There is also an averment that she had become weak because of the overage and suffering from illness and her hand also got fractured. Her vision and hearing had also gone weak. She categorically stated in the Will that she was pleased with the services rendered by the defendant and she had constructed a house. Thus, in order to get herself relieved from all the obligations and burden, she executed the Will in her perfect senses with respect to her moveable and immoveable properties. Thus the initial burden on its propounder stands discharged. The Will Ext. D1 is proved to be the last Will. Therefore, the last wish of the testator has to be given effect. - 9 - 14. The circumstances which are pointed out by the learned counsel for the plaintiffs to doubt the Will is that the testator died next day of the will. But there is nothing on record to show that she was not in a perfect senses and disposing state of mind when she had executed the Will Ext. D1; but however, there is only a fleeting reference that she was ailing, hard of hearing and weak vision, but no suggestion was thrown to any of the witnesses that she was unable to understand and that she was not in a free disposing state of mind. The perusal of the contents of the aforesaid Will Ext. D1 was rational. It makes the reference that the other beneficiary under the previous Will did not care for her, it was only the defendant who had been attending upon her is the reason by her to disinherit. 15. Learned counsel for the plaintiffs referred to the cross examination of DW3 Jagat Ram that she did not talk to him about the previous Will at any time before the second Will. The contention is not correct. The perusal of his statement shows that he stated that Bhagti did not state about the Will at any point of time earlier, meaning thereby that this fact came - 10 - only to the notice on the day of the execution of the Will Ext. D1 and it was so referred therein. Even if this submission is to be accepted then DW3 aforesaid may not be able to recapitulate the exact contents of the Will as this witness himself was 80 years of age and was examined in the learned trial Court after about 8 year. Due to lapse of such a long time, owing to his age, recapitulating minute details becomes difficult, more specifically when the witness being grilled in the cross examination having no experience of the Court and he was not confronted with the alleged contradictions in the Will . The other contradictions, as pointed out above, with respect to scribe and the witnesses are of no importance which do not go to the root of the case. 16. In my considered opinion, the Will Ext. D1 can also not be said to be shrouded by suspicious circumstances because of exclusion of the real daughters as there was rationality in executing the Will in favour of the defendant. 17. Since the Will Ext. PW2/A stands cancelled by the subsequent Will Ext. D1 which is held to be genuine, it was rightly acted upon. The point qua - 11 - ancestral concept of the property was neither pleaded nor proved, therefore, cannot be taken up for the first time in Regular Second Appeal. 18. The substantial questions of law stands accordingly answered. Therefore, the appeal sans merit and is accordingly dismissed. 19. Parties to bear their own costs. November 28, 2011 (Surinder Singh), (cm) Judge.