IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 326/1997 Reserved on: 19.7.2011 Decided on: 28.7. 2011 ___________________________________________________ Dayal and another. …Appellants. Versus Deewan and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the appellants : Mr. Bhupender Gupta, Sr. Advocate with Mr. Janender Mittal, Advocate. For the Respondents : Mr. G.D. Verma, Sr. Advocate with Mr. B.C. Verma, Advocate for respondents No.1 (a), 1 (b) and 1 (d). None for other respondents. _____________________________________________________ Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 30.8.1997 rendered by the learned Additional District Judge, Solan in Civil Appeal No.54-NS/13 of 1994. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that deceased respondent- plaintiff Smt. Gango (hereinafter referred to as ‘plaintiff’ 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 for convenience sake) instituted a suit for declaration and possession against the appellants-defendants (hereinafter referred to as “defendant” for convenience sake) as well as against proforma respondent, namely, Basanti. She was proceeded ex parte vide order dated 1.4.1998. Case of the plaintiff, in a nutshell, is that Jawala son of Sh. Mangal, resident of Barotiwala, Pargana Doon, Tehsil Kasauli, District Solan died on 26.1.1988, who was widower at the time of his death and also issueless and the plaintiff and proforma respondent Basanti were his real sisters and were entitled to succeed to all the movable and immovable properties left behind by the deceased. Jawala left behind 6 bighas 18 biswas of land in village Barotiwala comprising Khewat No. 53, Khatauni No. 90, Khasra No. 87 measuring 1 bigha 11 biswas and khewat No. 22 min, Khatauni No. 45 min and Khasra Nos. 58/2, 60/1, 85/1 and 05/3 measuring 5-7 bighas. Jawala was old and sick man. His mental faculties were affected about six months before his death. Defendants, namely, Polo and Dayal taking advantage of his feeble mind, got the “will” executed in their favour on 16.1.1988 instead of power of attorney. Thereafter, they got the mutation No. 636 dated 15.2.1988 sanctioned in their favour in collusion with the revenue authorities. According to the plaintiff, the execution of the will was illegal, unlawful being the result of fraud, 3 misrepresentation, undue influence and coercion. According to the plaintiff, the defendants had no right to succeed the property. 3. Suit was contested by the defendants. According to them, the “will” was executed by Jawala for the services rendered by them and the plaintiff was not entitled to the same at all and she had no concern with the same. According to them, mental faculties of Jawala were intact and the “will” was voluntarily executed by him. No replication was filed by the plaintiff. Issues were framed by the trial court on 26.5.1989. Trial court decreed the suit on 16.12.1993. Thereafter, defendants preferred an appeal before the learned Additional District Judge, Solan. He dismissed the same on 30.8.1997. Hence the present Regular Second Appeal. It was admitted on the following substantial questions of law: 1. When the plaintiff does not deny the execution of a document and merely challenges the will on the ground of having been obtained by fraud and mis- representation, unless onus is discharged by the plaintiff in proving such facts, can the will be held to be not a valid document? 2. When the objections raised by the plaintiff/respondent before the authorities attesting the mutation on the basis of the will were rejected and the appeals also dismissed, whether the courts below on their own hypothetical grounds, can hold the will to be an invalid document without there 4 being any evidence available on the record to the contrary? 3. Whether the certificate of the Sub-Registrar on the registered will carries the presumption of truth to the fact narrated therein? Can such certificate be ignored to hold that the deceased was not in a proper senses when the will was executed? 4. Whether the courts below were within their jurisdiction to pass a decree for possession of half share without defining the same? Can such decree be held to be executable? 5. Whether the judgment and decree passed by both the courts below are vitiated on account of misreading of pleadings, oral and documentary evidence and wrong appreciation of correct law? 4. Mr. Bhupender Gupta, learned Senior Advocate has vehemently argued that the “will” Ex.DW- 1/A dated 16.1.1988 has been executed in accordance with law. According to him, the mutation has rightly been sanctioned on 15.2.1988. He then argued that the “will” was duly registered. He lastly contended that it was not open to the trial court to decree the suit for possession of half share without defining the same. 5. Mr. G.D. Verma, learned Senior Advocate has supported the judgments and decrees passed by both the courts below. 6. I have heard the learned counsel for the parties and have perused the records carefully. 7. Since all the substantial questions of law are interconnected and interlinked, therefore, the same are 5 taken up together for determination to avoid repetition of discussion of evidence. 8. PW-1 Swaran Kumar was holding General Power of Attorney on behalf of the plaintiff. According to him, Jawala died living behind his two sisters. The plaintiff is his mother and proforma defendant Basanti was mother of defendants No.1 and 2. Jawala died 20 years ago. He was looked after by his mother and defendant No.3. Jawala was not in good mental and disposing condition due to his old age. Jawala never executed any “will” in favour of the defendants. The last rites of Jawala were performed by the plaintiff and defendants jointly. 9. PW-2 Nitya Nand and PW-3 Inder have supported the version of PW-1. 10. DW-1 is Tehal Dass. He was working as Registration Clerk. He had brought the relevant record of “will” No. 16 dated 16.1.1988. The copy of original will was pasted on the record and the certified copy of the same is Ex.DW-1/A. It was attested by Sh. S.K. Bhardwaj. 11. DW-2 is defendant Polo Ram. According to him, Jawala has executed a will in his and Dayal’s favour in the presence of Hari Chand, Pradhan and Daulat Ram. He has proved on record copy of will Ex.DW-1/A. 6 According to him, Jawala was in perfect health till his death. He knew Surender Kumar, Advocate, who was practicing at Solan. He has proved on record copy of mutation Ex. DW-2/A. 12. DW-3 Hari Chand has deposed that Jawala has executed “will” in favour of Polo and Dayal at Nalagarh in the Sub Divisional Magistrate Office, which was scribed by Petition Writer and Jawala had put his thumb impression in Daulat Ram’s presence and thereafter they put their signatures before the Tehsildar. 13. The defendants had moved application under order 41 rule 27 of the Code of Civil Procedure for production of original “will”, which was part of the record of R.S.A. No. 291 of 1986, titled Jawala Ram versus State of Himachal Pradesh. A prayer was also made for producing Surender Kumar, Advocate as a witness. The application was dismissed by the learned Additional District Judge by passing a detailed and self-contained order on 25.7.1997. Certified copy of the “will” has already been produced by the defendants, i.e. Ex. DW- 1/A. According to the defendants, “will” was executed on 16.1.1988 and the mutation was attested on 15.2.1988. Jawala died on 26.1.1988. He has died within 10 days after the execution of the will. According to DW-2 Polo Ram, Jawala only accompanied him at the time of 7 execution of power of attorney. It has come on record that Jawala was not keeping good health. According to DW-3, marginal witness, “will” was scribed by the Petition Writer; however, it is evident from the bare perusal of Ex.DW-1/A that it has been scribed by Sh. Surender Kumar, Advocate. DW-2 has admitted that Surender Kumar, Advocate was practicing at Solan and not at Nalagarh. He has not been produced as a witness. Dayal Ram, another marginal witness, has also not been produced by the defendant. DW-2 Polo Ram has deposed that he has only visited Nalagarh, that too, at the time when the power of attorney was made in his favour. He has not visited Nalagarh thereafter. However, DW-3 Hari Chand has deposed that he met Polo Ram and Jawala at Nalagarh and no one else was accompanying him. It was for the propounder of the “will” to remove the suspicious circumstances, which he has failed to do so. It is suspicious whether the “will” was written at Nalagarh or at Solan by Surender Kumar, Advocate or he visited the Nalagarh to scribe the “will”. Only one marginal witness has been produced, i.e. DW-3. His statement also is at variance with statement of DW-2 the manner in which the “will” was scribed and executed. The stand of the defendants was that the will was scribed by Surender Kumar, Advocate. He could easily be produced by the 8 defendants to prove that he has scribed the will. The application has been preferred only to fill in the lacuna. However, so far as the production of “will” is concerned, the certified copy of the same was already on record. 14. Their Lordships of the Hon’ble Supreme Court in K. Laxmanan versus Thekkayil Padmini and others, (2009) 1 SCC 354 have reiterated that onus to prove the will lies on the propounder. Their Lordships have further held that even where plea of suspicious circumstances is not raised but circumstances give rise to doubt, the propounder must satisfy the conscience of the court by removing such doubt. Their Lordships have held as under: “18. It is only as against the judgment and findings that the items of property covered by Ext. B2 and B3 are available for division that the second appeal was preferred by the fifth defendant in the High Court of Kerala. Therefore, the properties covered by Ext. B1 and B4 namely items 1 to 3, 13 and 14 are no longer in dispute and the conclusions arrived at by the first appellate court that the said items are not available for division are final and binding on the parties. 19.What is in dispute and is open to further litigation are only the properties covered by Ext. B2 and B3 which were held by both the appellate courts to be available for division. Since we are concerned with the legality of execution of Deed of Will and Deed of Gift, Section 68 of the Act would have some relevance, which reads as follows:- "68. Proof of execution of document required by law to be attested. - If a document is required by law to 9 be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied." Strong reliance was placed on this provision also by the learned counsel appearing for the parties. A bare reading of the aforesaid provision will make it crystal clear that so far as a Deed of Will is concerned, the position in law is no longer in doubt for the onus of proving the Will is on the propounder. The propounder has to prove the legality of the execution and genuineness of the said Will by proving absence of suspicious circumstances surrounding the said Will and also by proving the testamentary capacity and the signature of the testator. Once the same is proved, it could be said that the propounder has discharged the onus. 19. When there are suspicious circumstances regarding the execution of the Will, the onus is also on the propounder to explain them to the satisfaction of the Court and only when such responsibility is discharged, the Court would accept the Will as genuine. Even where there are no such pleas, but circumstances give rise to doubt, it is on the propounder to satisfy the conscience of the Court. Suspicious circumstances arise due to several reasons such as with regard to genuineness of the signature of the testator, the conditions of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that the testator's mind was not free. In such a case, the 10 Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the testator. The aforesaid view is taken by us in consonance with the decision of this Court in Shashi Kumar Banerjee v. Subodh Kumar Banerjee (AIR 1964 SC 529) and Pushpavathi v. Chandraraja Kadamba ((1973) 3 SCC 291). 20. So far as Section 68 of the Act is concerned, it categorically provides that a Will is required to be attested and therefore, it cannot be used as evidence until at least one of the attesting witnesses is called for the purpose of proving its execution provided such attesting witness is alive, and subject to the process of the court and capable of giving evidence.” 15. Their Lordships of the Hon’ble Supreme Court in S.R. Srinivasa and others versus S. Padmavathamma, (2010) 5 SCC 274 have held that where relying on will, beneficiary thereof sought to deny right of deceased’s heirs to inherit under section 15 (2) (a), onus to prove execution and genuineness of the will lay on him. Their Lordships have held as under: “36. As noticed earlier by virtue of Section 15(2) (a) of the Act, the appellants would inherit the property in dispute. This right is sought to be defeated by defendant No.1 on the basis of the Will dated 18.6.1974, allegedly executed by Puttathayamma. Defendant No.1 being the sole beneficiary under the Will claims that the plaintiffs can not claim to `inherit' the property on the basis of intestate succession. Undoubtedly, therefore, it was for defendant No.1 to prove that the Will was duly executed, and proved to be genuine.” 11 16. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs. CMP No. 473/2011: 17. In view of detailed observations made hereinabove, there is no merit in the present application and the same is dismissed. (Justice Rajiv Sharma), Judge. 28.7. 2011 *awasthi*