IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.: 247 of 1997. Reserved on: 25.06.2008. Decided on: 21.07.2008. Shri Jodh Singh and Others. … … Appellants. Versus Smt. Darshana Devi and Other. … … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the Appellants: Mr. Ramakant Sharma, Advocate. For Respondents No.1, 3 to 6: Mr. Ajay Sharma, Advocate. Rajiv Sharma, Judge: A challenge has been laid by way of this regular second appeal to the judgment and decree passed by the learned Additional District Judge (I), Kangra at Dharamshala in Civil Appeal No.25-N/96 on 12.9.1997. The brief facts necessary for the adjudication of this regular second appeal are that the respondents (hereinafter referred to as the plaintiffs for convenience sake) had filed a suit for declaration with consequential relief of permanent injunction. The suit was resisted and contested by the present appellants (hereinafter referred to as the Whether reporters of local papers may be allowed to see the judgment? No. - 2 - defendants for convenience sake). The learned trial Court decreed the suit on 30.1.1996. The defendants preferred an appeal against the judgment and decree of learned trial Court dated 30.1.1996 before the learned Additional District Judge (I), Kangra at Dharamshala. The learned Additional District Judge (I), Kangra dismissed the appeal on 12.9.1997. The present regular second appeal has been filed against the judgment and decree dated 12.9.1997. The regular second appeal was admitted on the following substantial questions of law:- 1. Whether both the learned courts below have rightly come to the conclusion that the will Ext.PW1/A dated 16.1.1976 has been proved in accordance with law? 2. Whether the courts below are right in coming to the conclusion that the will Ext.DW1/A dated 18.2.1983 has not been proved in accordance with law? 3. Whether the impugned judgment and decree is the result of complete misreading, misinterpretation as well as mis- appreciation of Ext.P2, the judgment dated 30th January, 1984 in civil suit No.153/1981? 4. Whether the judgment and decree is the result of complete misreading of section 13 of the Indian Evidence Act? Mr. Ramakant Sharma has strenuously argued that the judgments and decrees passed by both the courts below are not sustainable in the eyes of law. Mr. Ajay Sharma has supported the judgments rendered by both the courts below. I have heard the learned counsel for the parties and perused the record carefully. - 3 - Since all the substantial questions of law are interconnected, the same are being taken up together for discussion to avoid referring to the evidence repeatedly. The case projected by the plaintiff was that he was son of Amir Chand and the defendants S/Shri Kartar Chand and Onkar Chand (now deceased) were his brothers and they were to succeed in equal share to the estate of Shri Amir Chand as per Will dated 16.1.1976 Ex.PW-1/A. The case of the defendants before the trial court and first appellate Court was that the plaintiff was not the son of Sri Amir Chand. In order to prove his case the plaintiff had appeared as PW-2. He has deposed that he was son of Shri Amir Chand. Onkar Singh Defendant appeared as DW-2 and one Shri Prem Chand, the brother of Shri Amir Chand appeared as DW-3. They had deposed that the plaintiff was not the son of Shri Amir Chand. The plaintiff had produced on record a copy of judgment in Civil Suit No.153 of 1981 decided on 30.1.1984. The learned Sub Judge in his finding has discussed that Onkar Singh had filed an application before the Settlement Officer against the order of the learned Naib Tehsildar (Settlement). The Tehsildar (Settlement) had proceeded to record the plaintiff as son of Amir Chand. The order passed by the Settlement Officer, Kangra at Dharamshala was produced in the suit by Shri Malkiat Singh, plaintiff. The learned Sub Judge had also concluded in the judgment Ex.P-2 that Amir Chand has admitted that Malkiat Singh was his son. The findings recorded in Ex.P-2 to the effect that Malkiat Singh was son of Shri Amir Chand are binding upon the defendants. The plaintiff has also produced the copy of pedigree table Ex.P-3 which also reflects that plaintiff Malkiat Singh has been recorded as son of Amir Chand. The defendants had examined DW-2 to prove that - 4 - plaintiff was not son of Shri Amir Chand. He has shown his ignorance in cross-examination that Malkiat Singh had been recorded as son of Amir Chand during the settlement operation and the order of the Settlement Officer had become final. The defendants had also examined Prem Chand as DW-3. The statement of DW-3 carries no weight in view of the judgment of the learned Sub Judge, Ex.P-2. The plaintiff had conclusively proved that he was son of Shri Amir Chand on the basis of oral and documentary evidence. The pedigree table Ex.D-4 for the year 1978-79 could not be considered in view of the judgment of the learned Sub Judge, Ex.P-2. The second issue which requires the consideration is whether the will Ex.PW-1/A dated 16.1.1976 is valid or not. In order to prove Ex.PW- 1/A, the plaintiff was required to prove the original will executed by Amir Chand. The plaintiff had produced the secondary evidence after filing application under Section 65 of the Indian Evidence Act. Plaintiff had examined Shri Kilari Lal, Registration Clerk, D.C. Office, Dharamshala. He had deposed that Ex.PW-1/A is correct as per the original entry made in the register. PW-3 Shri Ram Saran had deposed that Amir Chand was the father of Malkiat Singh, Onkar Singh and Kartar Singh. He was the Lamberdar of Thakurdwara. He had deposed that the will Ext.PW-1/A was executed by Amir Chand. The will was scribed by Chander Parkash, Petition Writer at the instance of Amir Chand. He had deposed that he and Bishamber Singh signed the will as attesting witnesses and only thereafter the will was produced before the Tehsildar. He has further deposed that when the will was executed, Amir Chand was in sound and disposing state of mind. The only suspicious circumstance projected before this Court was that the plaintiff was not the son of Shri Amir - 5 - Chand. This plea cannot be accepted in view of the facts and evidence discussed hereinabove. It has been conclusively proved that the plaintiff was the son of Shri Amir Chand. Accordingly, it is held that the will Ex.PW-1/A has been duly proved by way of secondary evidence. Mr. Ramakant Sharma further argued that in view of the subsequent will Ex.DW-1/A, dated 18.2.1983 the earlier will Ex.PW-1/A stood revoked. In order to prove the execution of will Ex.DW-1/A, dated 18.2.1983, the defendants had examined DW-1 Shri R.R. Sharma, Advocate. He has deposed that the will was dictated by Amir Chand and the same was written by him. He has further deposed that Munshi Ram, Lamberdar and Ram Chand were the attesting witnesses of the will Ex.DW-1/A who appended their respective signatures in the presence of Amir Chand. He had further stated that Amir Chand was in sound and disposing state of mind. DW-2, Onkar Singh has stated that the will Ex.DW-1/A was handed over to them by Shri Amir Chand. He has shown his ignorance about the will dated 16.1.1976. It has come in the evidence of the defendants that Amir Chand was of weak mind and remained ill from the year 1976. If Amir Chand remained ill from the year 1976, his health was bound to deteriorate in the year 1983 when the will Ex.DW-1/A was executed. In Ex.DW-1/A plaintiff was disinherited from the suit property. Shri Amir Chand did not live with plaintiff after 1980. He never took any steps after 1980 to cancel the will Ex.PW-1/A, but the power of attorney given to Kartar Singh was cancelled by him. Therefore, the will Ex.PW-1/A, dated 16.1.1976, which has been executed in favour of plaintiff Malkiat Singh, Kartar Singh and Onkar Singh in equal share of the suit property, is a valid will and the will Ex.DW-1/A is not a valid will. The defendants have failed to remove the suspicious circumstances existing - 6 - at the time of execution of will Ex.DW-1/A on 18.2.1983. The findings recorded by the courts below are based on correct appreciation of evidence. There is no substantial question of law involved in this appeal. Accordingly, the appeal is dismissed. No costs. July 21, 2008. (Rajiv Sharma) (sck). Judge