IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.: 62 of 1999. Decided on: 11.01.2008. Bal Krishan & Another. … … Appellants. Versus Shangri Devi & Others. … … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Appellants: Mr. Ajay Sharma, Advocate. For Respondent No.1: Mr. Bimal Gupta, Advocate. Rajiv Sharma, Judge (Oral): A challenge has been laid by way of this regular second appeal to the judgment passed by the learned District Judge, Sirmaur in Civil Appeal No.104-CA/13 of 1997 dated 10.12.1998. The brief facts necessary for the adjudication of this second appeal as gathered from the judgments of the courts below are that the respondent Shangri Devi (hereinafter referred to as the plaintiff for convenience sake) has filed a civil suit in the Court of Sub Judge, Rajgarh in the year 1991 seeking declaration to the effect that the will No.17 dated 12.2.1985 registered in the office of the Sub-Registrar, Rajgarh executed by Shri Matha Ram in favour of the appellant Bal Krishan (hereinafter referred to as the defendant for convenience sake) Whether reporters of local papers may be allowed to see the judgment? Yes. - 2 - was the result of fraud and mis-representation and the plaintiff is owner in possession of the land comprised in Khata/Khatauni No.23/69 measuring 46-13 bighas situated in village Ranaghat, Tehsil Rajgarh, District Sirmaur, H.P. and the land comprised in Khata/Khatauni No.6/10 measuring 32.16 bighas situated in village Shargaon, Tehsil Rajgarh, District Sirmaur and the sale deeds executed in favour of defendants No.2 to 4 are null and void for want of competence. The defendant Bal Krishan filed the separate written statement to the suit filed by the plaintiff. Defendants Amrit Lal and Hem Dutt also filed separate written statements. Defendant No.4, Sat Pal also field separate written statement. The learned Sub Judge framed the following issues:- 1(a) Whether the will in question was validly executed by the testator? ….OPD. 1. Whether the plaintiff is owner in possession of the land in suit as alleged? …OPP. 2. Whether the will No.17 dt. 12.2.85 registered with the Sub Registrar, Rajgarh, by Sh. Matha in favour of the defendant No.1 is a result of fraud and misrepresentation as alleged? …OPP. 3. Whether the impugned sale deeds No.205 of 17.10.88 in favour of defdt No.3 & sale deed No.67 dt. 20.5.91 in favour of defdt No.2 & 3 and sale deed No.154 dt. 5.8.91 in favour of defendant No.4 respectively by the defendant No.1, are illegal, void and not binding on the rights of the plaintiff as alleged? …OPP. 4. Whether the suit is not maintainable in the present form? …OPD-1. 5. Whether the plaintiff has no cause of action? ..OPD-1. 6. Whether the plaintiff is estopped from filing the present suit by her act and conduct? ….OPD 1 & 4. 7. Whether the suit is bad for multifarious cause of action? …..OPD-1. 8. Whether the suit is bad for mis-joinder & non joinder of parties? ….OPD. 9. Whether the suit is collusive? ….OPD. - 3 - 10. Whether the suit is not properly valued as alleged? …OPD. 11. Whether the suit is barred by time? …OPD-4. 12. Whether the defendants No.2 to 4 are bonafide purchasers for value and consideration as alleged? …OPD 2 to 4. 13. Whether the defendant No.4 has made improvement over the land purchased by him after the sale to the tune of Rs.10,000/-. If so, to what effect? ….OPD-4. 14. Relief. The findings recorded by the learned Sub Judge are as under:- Issue No.1(a) No. Issue No.1 Partly yes. Issue No.2 No. Issue No.3 No. Issue No.4 No. Issue No.5 No. Issue No.6 No. Issue No.7 No. Issue No.8 No. Issue No.9 No. Issue No.10. No. Issue No.11 No. Issue No.12 No. Issue No.13 No. Issue No.14 The suit of the plaintiff is decreed as per Relief. Operative part of the judgment. The learned Sub Judge vide judgment dated 30th September, 1997 decreed the suit. Defendants Bal Krishan and Amrit Lal preferred an appeal before the learned District Judge on 29.10.1997 assailing the judgment - 4 - passed by learned Sub Judge, dated 30.9.1997. The learned District Judge formulated the following points for determination:- 1. Whether Matha had executed a valid Will in favour of defendant, Bal Krishan? 2. Whether the disputed land was in possession of plaintiff and the plaintiff was entitled to the relief of declaration and injunction? 3. Whether the sale in favour of defendant Amrit Lal in respect of a part of the disputed land was binding on the rights of the plaintiff? 4. Final order. The findings recorded by the learned District Judge on the points formulated are as under:- Point No.1: No. Point No.2: Yes. Point No.3: No. Final Order: Appeal is dismissed, per operative part of the judgment. The learned District Judge dismissed the appeal on 10.12.1998. The defendants Bal Krishan and Amrit Lal have preferred this appeal against the judgment and decree passed by the learned District Judge. The regular second appeal was admitted on the following substantial question of law vide order dated 21.5.1999:- 1. Whether the Courts below have misread and mis- appreciated the evidence on record to come to the conclusion that the Will Ex.D.W-2/A is not a genuine document? The appeal was dismissed having become abated by this Court on 12.7.2004. The application under Order 22 Rules 9 and 4 and under Order 1 Rule 10 CPC read with Section 5 of the Limitation Act for bringing on record the legal representatives of appellant Amrit Lal deceased after setting aside the abatement and condoning the delay was filed and the same was dismissed by this Court on 9.11.2005. - 5 - The S.L.P. was preferred against the judgment dated 9.11.2005. The Hon’ble Supreme Court vide judgment dated 2nd November, 2007 allowed the application on the condition that the appellant shall deposit or pay Rs.10,000/- as costs in favour of the respondent within a period of one month. Consequently, the impugned order passed by this Court was also set aside and this Court was directed to decide the appeal on merits within a period of three months. The legal representatives of deceased Amrit Lal, namely, (1) Suresh Kumar, (2) Ramesh Chand, (3) Chaman Lal, (4) Om Parkash, sons and (5) Sunita Devi, daughter, residents of village Dera Dhawai, Tehsil Junga, District Shimla, H.P. are ordered to be added as parties. Mr. Ajay Sharma had strenuously argued that the judgments passed by both the Courts below are not sustainable in the eyes of law and the findings recorded by the Courts below are not in accordance with law. Mr. Bimal Gupta had supported the judgments rendered by the Courts below. I have heard the learned counsel for the parties and perused the record carefully. The learned counsel appearing on behalf of the plaintiff before the trial Court had submitted that there were as many as 5 suspicious circumstances to doubt the genuineness of the will: (i) the active participation by the legatee, (ii) the denial of benefit to the plaintiff who was otherwise entitled to succeed to him, (iii) the witness Amar Singh being related (brother in law of the legatee), (iv) inherently improbable dis-position made in the will, and (v) non-production of the will at the earliest time. The trial Court after taking into consideration the entire documentary and ocular evidence has come to the conclusion that the Will in question, i.e. Ex.DW-2/A, dated 12.2.1985 was shrouded with - 6 - suspicious circumstances which have not been explained by the propounder. The trial Court had returned a definite finding that Matha Ram aged about 80 years could not divest his wife from the entire property by making a will in favour of the appellant, Bal Krishan. The other suspicious circumstance found by the Trial Court was the active role played by the legatee Shri Bal Krishan at the time of execution of the Will. Another circumstance which according to the learned trial Court arose suspicion was the manner in which the Will was scribed and registered. The trial Court has also held that the Will in question was not produced at the earliest time. The learned District Judge has dealt with all these issues in detail while affirming the judgment of the trial Court. The Will Ex.DW-2/A is the registered deed. The reading of Ex.DW-2/A shows that no reason has been assigned in the Will for divesting the plaintiff Shangri Devi from the entire property. There is no provision in the Will for maintaining Smt. Shangri Devi who is an old lady. The distance between the plaintiff’s village and of the appellants is more than 12 Kms. The alleged relationship of the appellant Bal Krishan with Shangri Devi and Matha Ram has not been conclusively established. There is no evidence on record even to remotely suggest that Bal Krishan was residing at village Ranaghat or Shargaon to look after Smt. Shangri Devi. It is most unlikely that a person having a wife would make a Will which would practically disinherit his wife. Their Lordships of the Hon’ble Supreme Court have held in Johri Bazar, Jaipur versus Smt. Chhoti and Others, (1990) 1 SCC 266 that it would be open to the Court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. Their Lordships have further held that it would also be open to the Court to - 7 - look into the surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party. Their Lordships have held that a Will constituting the plaintiff as a sole legatee with no right whatever to the testator’s wife seems to be unnatural. Their Lordships have held as under:- “It has been said almost too frequently to require repetition that a will is one of the most solemn documents known to law. The executant of the will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity of the will. It must be stated that the factum of execution and validity of the will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth from falsehood the court is not confined only to their testimony and demeanour. It would be open to the court to consider circumstances brought out in the evidence or which appear from the nature and contents of thee documents itself. It would be also open to the court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party. The will in the present case, constituting the plaintiff as a sole legatee with no right whatever to the testator’s wife seems to be unnatural. It casts a serious doubt on genuineness of the will. The will has not been produced for very many years before the court or public authorities even though there were occasions to produce it for asserting plaintiff’s title to the property. The plaintiff was required to remove these suspicious circumstances by placing satisfactory material on record. He has failed to discharge - 8 - his duty. We therefore, concur with the conclusion of the High Court and reject the will as not genuine.” The other suspicious circumstance is the manner in which the will in question was written and executed. It has come in the evidence that the will was written by one Shri Sanjeev. Shri Sanjeev has not been examined as a witness on the ground that he had died. The appellant, Bal Krishan has not produced on record even the death certificate of Sanjeev to prove his death. The presence of Shri Krishan Dutt Sharma at the time of the execution of the will is also doubtful in view of the contradictions in the statements made by Bal Krishan (DW-1) and Shri Amar Singh (DW-2). Moreover, Amar Singh (DW-2) is closely related to Bal Krishan and his statement with regard to the execution of the will cannot be believed being interested witness. There are material contradictions in the manner in which the parties have left for Rajgarh for the execution of the will from their respective villages. There is no explanation why Matha would go to the house of Amar Singh to witness the execution of the will. According to Bal Krishan (DW-1), Matha had gone to visit Amar Singh for taking him on 11.2.1985 and on that day they all had reached and stayed at village Shargaon in the evening of 11.2.1985. Next day they left for Rajgarh at about 8.00 a.m. from Shargaon. However, Amar Singh (DW-2) had stated that Matha had come to him 2 or 3 days before for informing his intention to execute a will. Amar Singh had not stated that he had come with Matha and Bal Krishan to village Shargaon in the evening of 11.2.1985 and all of them had gone on 12.2.1985 to Rajgarh. He had stated that he had met Matha Ram and Bal Krishan in the Tehsil office at Rajgarh on 12.2.1985. It also casts doubt about the very presence of Shri Amar Singh at the time of execution of the will. Shri Krishan Dutt Sharma has not been examined as a witness. He was the - 9 - material witness to explain the manner in which the will was executed. It also appears from the bare perusal of Ex.DW-2/A that the document has not been registered by completing all the codal formalities. The manner in which the signatures of the witnesses and testator have been obtained have been dealt with extensively by the trial Court and those findings are affirmed. Mr. Ajay Sharma has strenuously argued that there are only minor contradictions in the statements of the witnesses cited by the appellants. This plea cannot be accepted in view of the major contradictions in the statements made by Shri Bal Krishan (DW-1) and Amar Singh (DW-2) with regard to the manner in which the plaintiff has been divested of the entire property by Matha Ram as well as the manner of writing and execution of the will it-self. There are contradictions with regard to the manner in which Matha, Amar Singh and Bal Krishan have met and proceeded to Rajgarh for the execution of the will. The presence of Shri Amar Singh (DW-2) as well as Krishan Dutt Sharma is also doubtful at the time of the execution of the Will. Shri Amar Singh has tried to establish that he was related to Smt. Shangri Devi, but no evidence has been produced in what manner he was related to Smt. Shangri Devi. Mr. Ajay Sharma then argued that the will in question is a registered document and the same is to be treated as validly executed. True it is that the will Ex.DW-2/A is a registered document, but in the present case suspicious circumstances, the manner in which the will has been written and executed have not been explained satisfactorily by DW-1. Their Lordships of the Hon’ble Supreme Court have held in Rani Purnima Debi and another v. Kumar Khagendra Narayan Deb and another, AIR 1962, SC 567 that there is no doubt if a will has - 10 - been registered, that is a circumstance which may, having regard to the circumstances, proved its genuineness. But the mere fact that a will is registered will not by itself be sufficient to dispel all suspicions. Their Lordships have held as under:- “There is no doubt that if a will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration will dispel the doubt as to the genuineness of the will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the will did not read it over to the testator or did not bring to him that he was admitting the execution of a will or did not satisfy himself in some other way (as, for example, by seeing the testator reading the will) that the testator knew that it was a will the execution of which he was admitting, the fact that the will was registered would not be of much value. It is not unknown that registration may take place without the executant really knowing what he was registering. Law reports are full of cases in which registered wills have not been acted upon : (see, for example, Vellaswamy Servai v. Siraraman Servai, ILR 8 Rang 179 : (AIR 1930 PC 24), Surendra Nath v. Jnanendra Nath, AIR 1932 Cal 574 and Girja Datt Singh v. Gangotri Datt Singh, (S) AIR 1055 SC 346. Therefore, the mere fact of registration may not by itself be enough to dispel all suspicion that may attach to the execution and attestation of a will; though the fact that there has been registration would be an important circumstance in favour of the will - 11 - being genuine if the evidence as to registration establishes that the testator admitted the execution of the will after knowing that it was a will the execution of which he was admitting. The question therefore is whether in the circumstances of the present case the evidence as to registration discloses that the testator knew that he was admitting the execution of a will when he is said to have put down his signature at the bottom of the will in the presence of Arabali. We have scrutinized that evidence carefully and we must say that the evidence falls short of satisfying us in the circumstances of this case that the testator knew that the document the execution of which he was admitting before Arabali and at the bottom of which he signed was his will. Therefore we are left with the bald fact of registration which in our opinion is insufficient in the circumstances of this case to dispel the suspicious circumstances which we have enumerated above. We are therefore not satisfied about the due execution and attestation of this will by the testator and hold that the propounder has been unable to dispel the suspicious circumstances which surround the execution and attestation of this will. In the circumstances, no letters of administration in favour of the respondent can be granted on the basis of it.” Their Lordships of the Hon’ble Supreme Court in Ram Piari v. Bhagwant and others, AIR 1990 SC 1742 have held as under:- “…..Although freedom to bequeath one’s own property amongst Hindus is absolute both in extent and person, including rank stranger, yet to have testamentary capacity or a disposable mind what is required of propounder to establish is that the testator at time of disposition knew and understood the property he was disposing and persons who were to be beneficiaries of his disposition. Prudence, however, requires reason for denying benefit to those who too were entitled to bounty or - 12 - testator as they had similar claims on him. Absence of it may not invalidate a Will but is shrouds the disposition with suspicion as it does not give any inkling to the mind of testator to enable the Court to judge if the disposition was voluntary act. Taking active interest by propounder in execution of Will raises another strong suspicion. In H. Venkatachala v. B.N. Thimmajamma, AIR 1959 SC 443, it was held to render the Will infirm unless the propounder cleared the suspicion with clear and satisfactory evidence. Mere execution of Will, thus, by producing scribe or attesting witness or proving genuineness of testator’s thumb impressions by themselves was not sufficient to establish validity of Will unless suspicious circumstances, usual or special, are ruled out and the Courts conscience is satisfied not only on execution but about its authenticity. Se Kalyan Singh v. Smt. Chhoti, (1989) 4 JT 439 : (AIR 1990 SC 396).” Their Lordship of the Hon’ble Supreme Court have further held in Gurdial Kaur and aothers v. Kartar Kaur and others, AIR 1998, SC 2861 that the conscience of the Court must be satisfied that the will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925, but it should also be found that the said will was product of the free volition of the executant who had voluntarily executed the same after knowing and understanding the contents of the will. Their Lordships have also held that if there is a suspicious circumstance about the execution of the will, it is the duty of the person seeking declaration about the validity of the will to dispel such suspicious circumstances. Their Lordships have held as under:- “The law is well-settled that if there is suspicious circumstance about the execution of the will, it is the duty of the person seeking declaration about the validity of the will to dispel such suspicious circumstances. In this connection, reference may be made to the decision of this Court in Rani Purnima Debi v. Kumar Khagendra Narayan - 13 - Deb, AIR 1962 SC 567. It has been held in the said decision that if a will being registered and having regard to the other circumstances, is accepted to be a genuine, the mere fact that the will is a registered will it will not by itself be sufficient to dispel all suspicions regarding the validity of the will where suspicions exist. It has been held that the broad statement by witness that he had witnesses the testator admitting execution of the will was not sufficient to dispel suspicions regarding due execution and attestation of the will. It has been specifically held that registration of the will by itself was not sufficient to remove the suspicion. Relying on an earlier decision of this Court reported in AIR 1959 SC 443, it has been held in the said decision that where the propounder was unable to dispel the suspicious circumstances which surrounded the question of valid execution and attestation of the will, no letters of administration in favour of the propounder could be granted. The law is well stated that the conscience of the Court must be satisfied that the will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said will was the product of the free volition of the executant who had voluntarily executed the same after knowing and understanding the contents of the will. Therefore, whenever there is any suspicious circumstance, the obligation is cast on the propounder of the will to dispel suspicious circumstance. As in the facts and circumstances of the case, the Court of Appeal below did not accept the valid execution of the will by indicating reasons and coming to a specific finding that suspicion had not been dispelled to the satisfaction of the Court and such finding of the Court of Appeal below has also been upheld by the High Court by the impugned judgment, we do not find any reason to interfere with such decision. This appeal, therefore, fails and is dismissed without any order as