IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 193 of 1995 Reserved on: 30.5.2008 Date of decision: 26.06.2008 Baldev Singh & Ors. ... Appellants Versus Bishamber Dass … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellants: Mr. Ajay Sharma, Advocate. For the respondent: Mr. Rajnish K. Lal vice Mr. K.D. Sood, Advocate. V.K. Ahuja, J. : This is a Regular Second Appeal filed by the appellants under Section 100 CPC against the judgment and decree of the Court of learned District judge, Kangra at Dharamshala, dated 5.7.1994, vide which he quashed and set aside the judgment and decree dated 31.3.1992, passed by the learned Sub Judge, Dehra, vide which he had decreed the suit of the appellants/plaintiffs for declaration and declared them to be owners in possession of the suit land and the Will executed in favour of the defendants was held to be fabricated one. However, the learned first Appellate Court reversed the findings and dismissed the suit of the plaintiffs. 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Briefly stated the facts of the case are that the appellants as plaintiffs filed a suit for declaration that they are owners in possession of the land belonging to Mahloo Ram as detailed in the plaint. They also alleged that a mutation has been attested on 1.3.1985 on the basis of false and fabricated Will in favour of the defendant. It was alleged that deceased Mahloo Ram was brother of Kaur Chand and plaintiffs No. 1 to 6 are sons of Kaur Chand meaning thereby that they are real nephews of deceased. Mahloo Ram died issue less on 22.7.1985 and was living with Kaur Chand who had been looking after him till his death. The said Mahloo Ram never lived with defendant nor executed any Will but the defendant got mutation attested in his favour on 10.8.1985 on the basis of a Will which was false, fabricated and forged one. The plaintiffs being the only heirs of deceased Mahloo Ram, alleged that they have succeeded him and they also pleaded in regard to custom vide which he could not alienate by way of Will. The defendant pleaded that he is nephew of Mahloo Ram who was an old man and they have been looking after him for the last 12 years prior to the death. On 15.3.1985, the deceased executed a valid Will in favour of defendant and the mutation was accordingly sanctioned in favour of the defendant and as such, the suit is liable to be dismissed. The learned trial Court framed various issues including the one in regard to the execution of the Will or that it was forged and fabricated document. A plea in regard to nature of the property being ancestral was also taken. The learned trial Court decided most of the issues in favour of the plaintiffs and held that the Will is in question was forged one and accordingly, the suit for declaration and permanent injunction was decreed in favour of the plaintiffs. On appeal, those 3 findings were reversed by the learned first Appellate Court leading to the filing of the present appeal by the plaintiffs. I have heard the learned counsel for the parties and have gone through the record. During the course of arguments, the learned counsel for the appellant had submitted that he does not press the plea in regard to the ancestral nature of the property and the custom pleaded that it could not be alienated by way of Will in view of the judgment of this Court in Kartari Devi Vs. Tota Ram, 1992(1) S.L.C. 402 and, therefore, the findings in regard to the custom or ancestral nature of the property are not open as these were not pressed for by the learned counsel for the appellant. The question to be considered by this Court in second appeal is only in regard to the findings recorded by the learned trial Court that the Will was forged one and the suspicious circumstances has not been removed. The appeal was admitted but no substantial questions of law were framed by this Court at the time of admission of the appeal, though according to the verdict of the Hon’ble Apex Court, substantial questions of law are required to be framed at the time of admission of the appeal. Therefore, the appeal shall be deemed to have been admitted on the substantial questions of law formulated at Page-10 of the Paper Book as under:- “1. Whether the suspicious circumstances shrouding the execution of a will are sufficient enough to vitiate the same? 2. Whether the undivided ancestral property can be alienated against the custom to the contrary. 4 3. Whether the evidence has to be read as a whole? 4. Whether the evidence has been properly appreciated in the present case? I have already mentioned above that the plea of ancestral property and custom has not been pressed for by the learned counsel for the appellant, therefore, the substantial question of law at Sr. No. 2 mentioned above does not arise. Therefore, the evidence has to be read as a whole under the substantial questions of law No.1,3 and 4 and it has to be considered as to whether the correct findings were recorded or not by the Courts below on the basis of evidence led before it. The learned counsel for the appellants had submitted that the learned trial Court had given various reasons to hold that the Will in question was not valid one and it was shrouded by suspicious circumstances but the learned first Appellate Court wrongly reversed the findings of learned trial Court which findings were not given on the basis of sound reasonings. While the learned trial Court had given sound reasonings. Thus, the findings of the learned first Appellate Court are liable to be reversed. The contradictions pointed out during the course of arguments shall be referred below at the time of referring to evidence. On the other and, the learned counsel for the respondent submitted that the Will in question was duly proved to have been executed in the presence of two attesting witnesses and the evidence was properly appreciated by the learned first Appellate Court and as such, there is no merit in the appeal, which deserves to be dismissed accordingly. A perusal of the findings recorded by the learned trial Court shows that though it has come up that Bishamber Dass, defendant, who 5 was examined as DW-1 was present at that time when the Will was written, though he has tried to state that when he went to the Document Writer for the first time, the Will was being written and when he went there for the second time Mahloo Ram etc. had come out of the office of Sub Registrar meaning thereby that the defendant tried to show that he did not take active part at the time of execution of the Will, though his presence was established from his own statement. However, his statement shows that he does not know who has thumb marked and executed the Will meaning thereby his statement is not material in regard to the Will in question. DW-2 Beni Prasad, scribe of the Will, has stated that he had written the Will on the instructions of Mahloo Ram who was identified by Shri B.R. Ambia, Advocate, who had appeared in the witness box as DW-3. The statement of the scribe is clear that he was not knowing the executant personally but the executant was identified by Shri B.R. Ambia. However, it is clear that at the time of execution of the Will, Mahloo Ram, Bishamber Dass, defendant No. 1. and other witnesses had come to him. He further stated that Mahloo Ram was identified by Bakshi Ram at that time. DW-3 B.R. Ambia, who is a witness to the Will, has stated that it was thumb marked by Mahloo Ram. He stated that Mahloo Ram was introduced to him 3-4 months earlier by one Major who was present there but he stated that he is not aware to which place Major belonged. He stated that Bishamber Dass used to keep Mahloo Ram in in his quarter and had also earlier met him 3-4 times. He admitted that neither Mahloo Ram nor Om Prakash were his clients but Bishamber Dass, defendant was his client. He denied the suggestion that Mahloo Ram was introduced to him on the same day by Bishamber Dass. His 6 statement does not show that as to in which connection he was knowing the Major and how he met the executant and in what connection or how he was known to the executant. DW-3 B.R. Ambia, Advocate, has stated that Mahloo Ram was introduced to him by his friend who was a Major in the army but as stated above, he was unable to mention the place to which he belonged or in what connection he was introduced by the Major and he met him in the quarter of DW-1 who stated as DW-1 that no quarter was allotted to him at Dharamshala. The other attesting witness DW-4 Om Prakash is a resident of village Badhoon, who is also related to the parties and he had gone to Dharamshala where he met Mahloo Ram who asked him to attest the Will. He has further stated that he did not go to the Document Writer but he alongwith Mahloo Ram put their signatures and thumb marks on the Will before the Sub Registrar, Dharamshala. This clearly shows that he has no where stated that the Will was read over to the executant in his presence and then he signed in presence of the executant or the executant thumb marked in his presence, though, in his examination-in- chief, he had tried to prove the Will that it was thumb marked by the deceased in presence of the witnesses. However, his cross-examination as discussed above shows that he had gone before the Sub Registrar only. Apart from the above, the defendant had also pleaded that he had been serving the deceased who executed the Will in his favour in view of the services. But DW-4 Om Prakash has stated that Mahloo Ram lived in his own house till his death, though he used to take food in the house of the defendant and he also used to take food in the house of all the villagers. The learned trial Court had referred to the testimony of 7 plaintiffs’ witnesses that Mahloo Ram was never looked after by the defendant and his family and they had been cultivating the land of the Mahloo Ram but he used to take food in the house of some villagers including the plaintiffs and defendant. The learned first Appellate Court had reversed these findings on the ground that mere absence of the attesting witnesses at the time when the Will was scribed is of no consequence and cannot be termed as suspicious circumstance. The statement of DW-4 is to be read in full which suggests that he was not present when the Will was thumb marked by the executant. The learned Appellate Court had also observed that the observation made in regard to not knowing the name of the army officer or that no family quarter was allotted to him is not sufficient to disbelieve the statement of DW-3 B.R. Ambia, though his statement if read as a whole, shows that he was not able to explain as to how he was knowing the army officer or how the deceased happened to be in the quarter of army officer and since the defendant was his client he had identified the deceased before the scribe at the time of the execution of the Will. The executant was neither his client , relative or friend or known to him earlier. In regard to the allotment of the quarter, defendant had stated that no family quarter was allotted by the army authority, but he has no where stated that he was living in a private quarter taken by him at Dharamshala. The presence of the beneficiary at the time when the witness and executant were taken to the scribe and his again appearing when the parties came back after registration of the Will and his introduction of his Advocate as an attesting witness who was not known to the executant is clear proof of the fact that it was not only presence of legator at the time of execution of the Will but suggests of active participation by him at the 8 time when the Will was executed in his presence. The reason given by the learned first Appellate Court in reversing the findings of learned trial Court cannot be said to be sound reasoning so as to hold that the Will was not shrouded by suspicious circumstances. The association of an advocate of the defendant at that time as an attesting witness in itself a suspicious circumstance which has not been satisfactorily explained by the defendant in his own statement as DW-1. In case the findings of the learned trial Court were to be reversed by the learned first Appellate Court, sound reasoning was required to be given and it should have been concluded that the reasoning given by the learned trial Court was not correct, but by making some observations, the learned first Appellate Court has reversed the findings of the learned trial Court and to my mind, the reasonings of the learned trial Court were correct and called for no interference by the learned first Appellate Court. In view of the above discussion, I accordingly hold that the findings recorded by the learned first Appellate Court are liable to be set aside and the findings recorded by the learned trial Court decreeing the suit of the plaintiffs/appellants for declaration and permanent injunction are liable to be restored and are restored accordingly while allowing the appeal. However, the parties are left to bear their own costs. Decree sheet be prepared accordingly. ( V.K. Ahuja ), June 26, 2008 Judge (BSS) 9