IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 329/1999 Reserved on: 6.3.2009 Decided on:18.3.2009 Labh Chand and others. …Appellants. Versus Kekti Devi. …Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?No1. For the Appellants : Mr. Rajnish K. Lal, Advocate vice Mr. K.D. Sood, Advocate. For the Respondent : Mr. Janesh Gupta, Advocate vice Mr. Neeraj Gupta, Advocate. Rajiv Sharma, J. This Regular Second Appeal has been directed against the judgment and decree dated 9.8.1999 passed by the District Judge, Kullu in Civil Appeal No. 19/1999. Brief facts necessary for the adjudication of this Regular Second Appeal are that the respondent-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake) filed a suit for declaration to the effect that she was the owner in possession of the suit property along with house detailed in the head note of the plaint. The property belonged to her father 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 who died on 29.3.1995 leaving behind the plaintiff and proforma defendant Smt. Hima as his legal heirs. She has alleged that her father who was aged and ill was unable to look after his welfare. He had fallen ill during June, 1990. In order to meet the expenditure, he had offered his 1-13-0 bighas of land for sale to defendant No.3 Sh. Meghu. He was brought to Kullu on 14.5.1990 for the execution of the sale deed. However, instead of executing the sale deed, a will regarding entire property of the deceased was executed at the instance of the appellants-defendants (hereinafter referred to as ‘the defendants’ for convenience sake). A sum of Rs. 5,000/- was paid and the remaining sum of Rs. 15,000/- was never paid. According to her, the defendants never served the deceased throughout his life and there was no occasion for him to execute the will in favour of the defendants. The suit was contested by the defendants. According to the witnesses the will was executed and attested in accordance with law and on that basis the mutation was also attested in their favour. The trial court decreed the suit on 17.12.1998. The defendants preferred the appeal before the learned District Judge, Kullu. The learned District Judge dismissed the appeal on 9.8.1999. This Regular Second Appeal was admitted on the following substantial questions of law: 1. Whether the court below has misconstrued and mis- read the basic document of title will Ex.DW-2/A and has found the room for suspicion where there existed none and when due execution thereof was proved also by the Registration of the same which raised a presumption under section 60 of the Registration Act? 2. Whether the suit of the plaintiff for declaration without seeking relief of possession was maintainable? Mr. Rajnish K. Lal, Advocate has strenuously argued that the will Ex. DW-2/A is valid in law. He then contended that both the courts below 3 have misread the evidence particularly, the will Ex.DW-2/A and copy of Pariwar Register Ex.DA. Mr. Janesh Gupta, Advocate has supported the judgments and decrees passed by both the courts below. I have heard the learned counsel for the parties and perused the record carefully. Since both the substantial questions of law are interconnected and interlinked, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. The plaintiff has appeared as PW-1. She has supported the entire contents of the plaint. She has denied that defendants No.1 and 2, namely, Sh. Labh Chand and Sh. Om Chand were residing with her father and were serving him. PW-2 Hukam Ram has deposed that deceased Khampu met him about 7 years ago who told him that he had gone to Kullu for executing registry in favour of Meghu. PW-3 has only produced the site plans Ex.PW-3 to P-7. Defendant No.2 Om Chand has appeared as DW-1. According to him, the deceased was treating him like a son and he executed a will in their favour on 14.5.1990 excluding the plaintiff. The deceased was having good health. In his cross-examination, he has admitted that deceased Khampu was illiterate and was residing in village Archhandi. On 14.5.1990, the witnesses were brought by his father to Kullu, but denied that Smt. Kekati was also with him. He has denied that Meghu and marginal witlessness have executed the will by playing fraud with Khampu. DW-2 is Chuhru Ram, Petition Writer. He has scribed the will Ex. DW-2/A at the instance of Khampu. He has deposed that he read over the contents of the will in presence of witnesses Budh Ram and Moti Ram 4 and the executant after admitting the contents appended his signature. According to him the details of the properties were given by Khampu to him orally. He has admitted that Khampu was not knowing Hindi or Urdu language. However, DW-3 Budh Ram has deposed that Khampu brought the copy of the jamabandi on the basis of which the details of the properties were mentioned in the will Ex.DW-2/A. He has admitted that one case of forgery was registered against him for the identification of a wrong person. He has admitted that defendant No.3 Sh. Meghu was his maternal uncle. There are material contradictions in the statements of DW-2 and DW-3. Sh. Moti Ram, other attesting witness has not been produced by the defendants. He was also closely related to the parties. There is no explanation why the share had gone to defendant No.3 Meghu, who has never served the deceased Khampu. Sh. Khampu was an illiterate person. He could not remember the details of the property as mentioned in Ex.DW-2/A. There are material contradictions the manner in which the details of the properties were supplied by deceased Khampu to the Document Writer. It is not borne out from the record that the defendants have ever served the deceased Khampu. The heavy burden lies on the propounder to dispel the suspicious circumstances surrounding the execution of the will. It is evident that defendants No.1 to 3 have played fraud on Khampu. Khampu had gone to Kullu for the sale of the land. However, defendants No.1 to 3 taking advantage of his advance age had got the will executed from Khampu. There is no explanation why the daughter has been left out from the property. The marginal witnesses were related to defendant No.2. The statement of DW-3 being professional witness has rightly been discarded by both the courts below. DW-1 has admitted that Khampu 5 used to remain ill even prior to 14.5.1990. The courts below have rightly appreciated Ex.DA copy of Pariwar Register. The plaintiff has filed a suit for declaration that she was owner in possession of the suit land and hence there was no occasion for seeking any possession. Cumulatively, it is held that the defendants have failed to prove valid attestation and execution of the will dated 14.5.1990 Ex.DW-2. Accordingly, there is no merit in the Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs. 18.3.2009 (Rajiv Sharma ), J. *awasthi*