HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 424 of 2000 & CO No.123 of 2001 Reserved on: 11.4.2011. Decided on: 24.5.2011. Parkash Chand ……Appellant. Versus Raksha Devi ………Respondents Coram The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the appellant: Mr.G.D. Verma, Senior Advocate, with Mr.B.C. Verma, Advocate. For the respondent: Mr.Karan Singh Kanwar, Advocate. V.K. Ahuja, J.: This is a regular second appeal filed by the appellant/plaintiff under Section 100 of the CPC against the judgment and decree, dated 13.6.2000, passed by the learned District Judge, Hamirpur, vide which he affirmed the judgment and decree passed by the learned Sub Judge, Hamirpur, H.P., dated 26.12.1991, dismissing the suit of the plaintiff. 2. Briefly stated, the facts of the case are that the appellant (hereinafter also referred as the plaintiff) filed a suit for possession as against the original defendant Kaushalya Devi, now represented by the present respondent, (hereinafter also referred to as defendant). It was alleged by the plaintiff that the land in suit, measuring 12 kanal 13 marla, as detailed in the plaint, was owned by Smt.Ram Dei as co-owner in - 2 - possession of the suit land. It was alleged that Smt.Ram Dei was maternal grand mother of the plaintiff and she had brought up the plaintiff during his childhood and he had been rendering services to her on attaining majority. It was also alleged that Smt.Ram Dei had executed a registered Will, dated 12.4.1979, in his favour. The said Ram Dei died on 19.5.1983. The defendant, joint owner in the Khata, had forcibly occupied the suit land claiming that Smt.Ram Dei had executed a Will in her favour. It was alleged that the Will executed in favour of the plaintiff was the last Will executed by her while the Will propounded by the defendant is forged and fabricated one. The plaintiff also claimed that he is entitled to possession being the sole legal heir of Smt.Ram Dei to the extent of her share, hence the suit for possession filed by the plaintiff. 3. The defendant took preliminary objection in regard to the maintainability, jurisdiction etc. On merits, it was denied that the plaintiff was brought up by Smt.Ram Dei or that she was looked after by the plaintiff during her life time. The defendant claimed herself to be the daughter-in-law of Smt.Ram Dei and pleaded that out of her love and affection and in view of the services rendered by her, said Ram Dei had executed a Will in her favour on 19.5.1974 and mutation - 3 - had also been sanctioned in her favour. The defendant had also claimed to have performed all the last rituals after the death of Ram Dei. The defendant further claimed that she is recorded as tenant over the suit land since long and after the death of Smt.Ram Dei, she has become the owner of the same by operation of law. 4. On the pleadings of the parties, as many as 5 issues were framed by the learned trial Court, out of which, Issues No.1, 4 and 4-A are relevant and are reproduced below: “1.Whether Smt.Ram Dei executed a valid will dated 11/12.4.79 in favour of the plaintiff? OPP 4. Whether Smt.Ram Dei had executed a valid will dated 19.5.79 in favour of the defendant, as alleged, if so, its effect? OPD. 4-A. Whether defendant was tenant over the suit land and has become owner thereof, if so, its effect? OPD” 5. Parties led their evidence and the learned trial Court vide its impugned judgment, decided Issues No.1 and 4 against the plaintiff and issue No.4-A in favour of the defendant and consequently dismissed the suit of the plaintiff in full. On appeal, the findings recorded under Issue No.4-A by the learned trial Court were reversed by the learned District Judge and the - 4 - other findings of the learned trial Court were affirmed by the learned District Judge. 6. The appeal was admitted on the following substantial question of law: “Whether the evidence recorded with regard to execution, existence or loss of a document for the purpose of grant of permission under Section 65 of the Evidence Act, be read in evidence for the purpose of deciding the merits of the case?” 7. It was pointed out by the learned counsel for the appellant that on an application filed by the appellant and allowed by this Court on 21.3.2011, the following additional substantial questions of law were framed: “(i) Whether there has been no statutory compliance of the provisions of Section-63 of the Indian Evidence Act and Section-68 of the Indian Succession Act from providing the alleged Will Exhibit AW-3/A, in favour of Smt.Kaushalya Devi? (ii) Whether for want of production of the alleged original Will dated 19.5.1979 an adverse inference was required to be drawn because there was no material on record to show that the same had been mis-placed? (iii) Whether for want of production of the record from the office of Sub Registrar who had - 5 - registered the same after the death of Smt.Ramdei on 6.90.1985, an adverse inference was required to be drawn?” Thus, it was submitted that these substantial questions of law are to be answered by the court. 8. I have heard the learned counsel for the parties and have gone through the record of the case. 9. The submissions made by the learned counsel for the appellant were that the appellant had proved on record the due execution and registration of the Will Ext.P-1 in his favour. It was further submitted that both the courts below have not been able to find any suspicious circumstances, on the basis of which reliance could not be placed on Ext.P-1. Thus, it was submitted that the validity of the Will in favour of the plaintiff was not under challenge. In regard to the Will Ext.AW-3/A in favour of the defendant, it was submitted that it was an unregistered Will, was got registered after the life time of the deceased and the evidence relied upon, which had been produced in support of the application for secondary application, could not have been considered and the defendant had failed to prove the due execution of the Will in her favour. Thus, it was submitted that the findings of - 6 - both the courts below were liable to be reversed after due appraisal of evidence for which a case is made out. 10. On the other hand, the learned counsel for the respondent had submitted that the evidence cannot be looked into beyond the substantial question of law once the appeal was admitted on the substantial question of law, as mentioned above. 11. Cross Objections were also filed by the respondent against the findings recorded by the learned Appellate Court under Issue No.4-A and it has been prayed that those findings are liable to be reversed. The following substantial question of law was framed on the Cross Objections: “Whether Smt.Kaushalya Devi a co-owner with Smt.Ram Dei deceased could be a tenant under Smt.Ram Dei to the extent of share of Smt.Ram Dei.” 12. It follows from the above discussion that the first question to be determined by this Court was as to whether there was any valid Will executed in favour of the appellant and if the said Will was duly proved, whether the second Will in favour of the defendant, being a later Will, could be acted upon and as such the claim set up by the plaintiff was not maintainable. 13. Some facts are necessary to the elaborated here. The Will in favour of the plaintiff is dated - 7 - 12.4.1979, which was a registered Will. The Will in favour of the defendant is dated 19.5.1979 and on the basis of the said Will, the mutation has also been attested in favour of the defendant. The Will in favour of the defendant was registered after the death of the executant Smt.Ram Dei, which took place on 19.5.1983. The evidence of the parties, therefore, has to be appreciated in light of the above facts. 14. The first question to be determined is in regard to the validity of the Will Ext.P-1 in favour of the plaintiff, which was prior in time. Both the courts below have held that the Will is surrounded by suspicious circumstances. The learned District Judge had upheld the findings that the Will in favour of the plaintiff was surrounded by suspicious circumstances on the observation that not a single witness has been examined by the plaintiff to prove that Ram Dei expressed her desire to execute a Will in favour of the plaintiff. No such evidence was necessary in regard to expression of her desire except the question as to whether the marginal witnesses have proved the due execution of the Will and as to whether their testimony can be relied upon or not. A perusal of the Will Ext.P- 1 shows that the marginal witnesses of the Will were one Shankar Singh, Nambardar, resident of Village Solahsingi, District Una and another was Polo Ram, - 8 - Nambardar, resident of Village Rasenda, Tehsil Barsar, District Hamirpur, H.P. It was observed that the plaintiff is the resident of District Una and the witnesses of the Will are also from Una, while the Will was got registered at Barsar and Smt.Ram Dei was residing with Kaushalya Devi at Jharlog in Tehsil Bhoranj, District Hamirpur, H.P. It has been incorrectly mentioned by the learned Appellate Court that the witnesses of the Will are also from Una since the address of the witnesses given above shows that Shankar Singh PW-2 was from Tehsil Una while Polo Ram was from Tehsil Barsar, District Hamirpur. One of the grounds to disbelieve the Will was that the marginal witnesses were from Una, which is incorrect as only one of the witnesses was from Una. An observation was also made that Smt.Ram Dei was residing with Kaushalya at Jharlog in Tehsil Bhoranj and if she wanted to execute the Will, Tehsil Bhoranj is quite near to the house of Ram Dei and Kaushalya, and there was no hitch for the plaintiff to take Ram Dei before the Tehsildar at Bhoranj, but the plaintiff preferred to bring witnesses from Una. It was also observed that Ram Dei was got identified by Shankar and Polo Ram, meaning thereby that the Will was registered by the Sub Registrar in a routine manner. It was further observed that the columns have been filled in by the Clerk and the Sub - 9 - Registrar put his signatures. It was also observed that the Sub Registrar, Barsar who registered the Will was not before the Court. Again, an observation was made that except the witnesses who hail from Una and not from Hamirpur, none has been examined from the locality of Ram Dei, which is incorrect. These were the only reasons given by the learned Appellate Court to hold that the Will in question was surrounded by suspicious circumstances that both the marginal witnesses were from Una, while only one was from Una and no reasons have been mentioned after referring to the testimony of the witnesses as to why they cannot be believed. 15. Coming to the testimony of PW-2 Shankar Singh, it was observed that PW-2 Shankar Singh deposed that he is a Nambardar of Droh area and the plaintiff Parkash Chand is residing in his area, who is the son of daughter of Ram Dei. 16. Coming to the findings recorded by the learned trial Court, it had not believed the testimony of both these witnesses. PW-2 Shankar Singh has stated that Smt.Ram Dei had herself come to call her for execution of the Will and that Shri Polo Ram was brought by him by sending a message. He also admitted that the plaintiff Parkash Chand and he are from District Una. - 10 - 17. Coming to the testimony of PW-4 Polo Ram, another marginal witness, it was observed that Polo Ram had deposed that he does not know as to what was the relationship of Kaushalya Devi with Smt.Ram Dei, though he admits that Smt.Ram Dei was from Village Jharlog. It is no ground to disbelieve the witness of the plaintiff that he does not know the relationship in between the executant and the defendant, who is contesting the Will. He could be expected to know about the plaintiff or his relationship with Ram Dei but not necessarily with the defendant, who challenges the Will. He has clearly stated that the old lady was brought by Shankar Singh, Nambardar and he personally knew her. The only other ground given by the learned trial Court was that both the attesting witnesses have not been able to justify as to how and under what circumstances Smt.Ram Dei was prompted and persuaded to go to Barsar for execution of the Will. Another reason to disbelieve the statement of PW-4 Polo Ram was that he has not stated how and from where he was also called by Ram Dei when he was from a different area and locality. PW-2 Shankar Singh had himself admitted that PW-4 Polo Ram was arranged by him. The learned trial Court has also observed that there is no reason why the executant had not sought the presence of some respectable inhabitants - 11 - of her own locality. Therefore, both the witnesses have not been able to justify their presence at Barsar. 18. The grounds given by the learned trial Court in disbelieving the version of the witnesses cannot be termed as suspicious circumstances, except the question as to the effect of the witnesses not being from the locality where the deceased was putting up. PW-2 Shankar Singh has stated that he was called for by the executant herself, while Polo Ram was called by Shankar Singh and both the witnesses are emphatic in this regard. The learned courts below have drawn conclusion as to why the Will was not executed at the nearby place, namely, at Bhoranj and why the same was got registered at Barsar. These questions could have been clarified and adverse inference could be drawn against the plaintiff in case it was brought on record as to what is the distance in between the place where the deceased was staying with the defendant, namely, Jharlog and Tehsil Bhoranj, and the distance in between Tehsil Bhoranj and Tehsil Barsar, where the Will was got registered. There is nothing on the record from the statements of both the attesting witnesses or even the defendant as to the distance in between the places and it may be that Tehsil Barsar was nearer for the parties to go to the Tehsil for registration. These facts were required to be elicited from the witnesses before any - 12 - conclusion was drawn as to why the Will was not registered at Bhoranj or was got registered at Tehsil Barsar, in District Hamirpur. 19. Coming to the question that the witnesses are from the locality, I once again reiterate that both the witnesses were not from Una as wrongly observed by the learned Appellate Court and the mere fact that one of the witnesses was from Una and another from Hamirpur is not sufficient to hold that they were living at a quite distant places from Jharlog where the deceased was residing. Both these villages or Tehsils may be adjoining each other and it was required of the defendant to have brought on record the distance in between Jharlog where the deceased was staying and the residence of PW-4 Polo Ram, who was from Tehsil Barsar, District Hamirpur, H.P. Unless and until the distances are brought on record, no conclusion can be drawn by the court that since one witness is from Hamirpur, he may not be relied upon. It is the distance which matters and question should have been put up to PW-4 Polo Ram as to how he was present at Tehsil Barsar and it was for him to explain his presence there. 20. Coming to the question that the witnesses are not from the locality, in light of such evidence being missing as to the actual distance in between these three places, the Appellate Court simply concluded that - 13 - both the witnesses are from Tehsil Una and, therefore, they cannot be termed as residents of the locality. The witnesses have not stated that they were not known to the executant. No such decision was cited by the learned counsel for the respondent that the witnesses should be from the locality. However, it is clear that the mere fact that the witnesses are not from the place where the deceased was living is not sufficient to hold that the attesting witnesses cannot be relied upon. It is for the defendant to challenge the statements of the witnesses and bring some facts on record so that a conclusion could be drawn that either the witnesses were not known to the deceased or were having some animus against the defendant and, therefore, they could not be relied upon. No such facts had been brought on record to justify that the mere fact of their being from different area is sufficient to disbelieve their testimony particularly when no such facts were brought on record to draw such conclusion. It is, therefore, clear that both the witnesses have been able to prove that the Will in question was executed in their presence by the deceased who was known to them and that the Will was read over and then they signed and as such the grounds given by both the courts below in disbelieving the witnesses of the plaintiff in regard to the Will cannot be said to - 14 - be sufficient to draw a conclusion that the Will was surrounded by suspicious circumstances. Therefore, the findings of the learned trial Court and the learned Appellate Court on issue No.1 are liable to be reversed and accordingly it is held that the plaintiff has been able to prove the due execution of a valid Will in his favour. However, in case the subsequent Will in favour of the defendant is held to be valid, the plaintiff is not entitled to the relief claimed by him for which a reference has to be made to the later Will. 21. Coming to the Will set up by the defendant, it is clear that the Will in question, which is not a registered Will in favour of the defendant, was not filed alongwith the written statement by the defendant. During the trial of the case, on 16.9.1986, an application under Section 65 of the Evidence Act was filed by the defendant for permission to adduce secondary evidence in support of the Will dated 19.5.1979. It was alleged that after the death of Smt.Ram Dei, the defendant/applicant applied for registration of the Will before the Sub Registrar, Hamirpur, which was duly registered and mutation was sanctioned in favour of the defendant. It was further alleged that after the registration of the Will by the Sub Registrar, the defendant/applicant put that Will on the shelf of her room, but later on when it was sought - 15 - to be produced, the same was not traceable. Therefore, it had become necessary to adduce secondary evidence in support of the Will, dated 19.5.1979, as the same had been lost or could not be traced or find out in spite of best efforts. It is a matter of record to mention herewith that the written statement in the case was filed by the defendant on 15.5.1986 and though there was a reference to the Will but its copy was not enclosed and this fact was clear to the defendant and she did not allege any reason for non-filing of the Will. On the pleadings of the parties on the application, the learned trial Court framed an issue on 21.10.1986, which reads as under: ‘Whether the defendant is entitled to lead secondary evidence in respect of the Will dated 19.5.1979? OPA’ 22. In support of the application, the defendant examined AW-1 Kaushalaya Devi, defendant, who stated that the Will was executed by her mother-in-law in her favour and her mother-in-law is dead for the last five years. She had produced the Will before the Registrar in the Tehsil and the Will was registered in the Tehsil and she had kept the Will in her house and when her counsel demanded the Will, she found that it was not lying there. No dates have been mentioned in regard to the loss. - 16 - 23. The registration Clerk AW-2 Smt.Meena Kumari had been examined, who stated that she had brought the register but no certified copy of the Will from the Registrar’s office was proved from her statement. AW-3 Bakshi Ram had stated that he had only prepared the copy of the Will Ext.AW-3/A from the original and the copy had been prepared by him since he was doing the job of a Deed Writer in courts and that he prepared the Urdu copy since he knew Urdu. He had only got the Urdu translation of the Will and had proved the the same as Ext.AW-3/A from the record, but he had not proved the original Will’s contents. Thereafter, the evidence of the applicant/defendant was closed and Plaintiff/respondent Parkash Chand examined himself as RW-1, who denied the evidence as against him. 24. Before allowing an application under Section 65 of the Evidence Act for secondary evidence, two things are required to be proved – i) the execution of the document in question and; ii) its loss. The existence of the document in question has to be proved firstly and then the loss has to be proved as to when it was lost and as to whether permission should be accorded or not in case both these conditions are satisfied. The contents of the Will which was registered in the office of the Sub Registrar after the death of the executant were not proved by producing any - 17 - copy on record which could be said to be true copy of the Will as entered in the record of the Sub Registrar. What has been proved by the applicant/defendant is that an Urdu copy of the Will which was prepared by a Deed Writer and its contents were proved but not the contents of the original Will executed, which was necessary before permission could have been granted. Therefore, this question has to be considered by this Court in discussing the evidence in regard to the execution of the Will. 25. Apart from the above, the defendant had examined the witnesses to prove the Will. DW-2 Tulsi Ram is the scribe of the Will, who stated that he had read over the Will to Smt.Ram Dei who admitted it as correct and thumb marked it and the witnesses present at the time were Amar Singh, Ram Chand, Rawel Singh, Munsi Ram, Gian Chand etc. He had stated that the Will was signed by Amar Singh, Gian Chand, Rewal Singh and Munsi Ram. He had stated that he was called by Kaushalya Devi defendant and at that time when he reached, the witnesses were already sitting. He admitted that the Will was written three years prior to the death of Smt.Ram Dei. DW-3 Amar Singh admitted his relationship with Smt.Kaushalya Devi i.e. aunt from village. Again stated that Kaushalya Devi was his father’s sister in relation. In relying upon the - 18 - testimony of both these witnesses, the learned trial Court has observed that the disposition of the property in favour of the defendant also appears to be natural and genuine when the deceased had been living with Smt.Kaushalaya Devi throughout her life and rendering service to her and, therefore, there are no reasons why Ram Dei would not have intended to execute the Will in her favour in lieu of services. The question of natural or unnatural disposition