IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 236 of 2000. Judgement reserved on: 29.4.2010. Date of decision: 14.6.2010. Gita Ram & anr. ….. Appellants. Vs. Smt. Churi & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellants : Mr. Dinesh Bhanot, Advocate. For the Respondents : Mr. Romesh Verma, Advocate, for respondent No.1. Kuldip Singh, Judge. The defendants No. 1 and 2 have filed the present appeal against the judgement, decree dated 15.12.1999 passed by learned Additional District Judge, Solan in Civil Appeal No. 35-NL/13 of 1997 affirming but slightly modifying the judgement, decree dated 12.9.1997 passed by learned Sub Judge Ist Class, Nalagarh in Civil Suit No. 227/1 of 1991. 2. The facts in brief are that respondent No.1 Smt. Chuhri had filed a suit for declaration with consequential relief of permanent injunction with respect to 1/3rd share in land measuring 27 bighas 4 biswas, situate in village Akkanwali, Tehsil Nalagarh as recorded in jamabandi for the year 1988-89, which was owned and possessed by Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… Smt. Garibi mother of respondent No.1. Smt. Garibi had inherited the land from her previous husband Baggu. Smt. Garibi had died on 1.5.1991 and dispute is with respect to inheritance of her estate. 3. The case of respondent No.1 is that she is the only heir and successor of her deceased mother Smt. Garibi and she is entitled to inherit her estate. Smt. Garibi had died at the age of 80 years. She was sick and was having unsound state of mind, she was looked after by respondent No.1. Smt. Garibi remained ill for about 15 years prior to her death. She was not capable of executing any instrument/ document or will. After the death of Smt. Garibi, mutation No. 452 of her inheritance was entered and sanctioned in favour of respondent No.1 on 15.5.1991. It is the case of respondent No.1 that appellants in collusion with Budh Ram and attesting witnesses have set up a forged and fabricated will of Smt. Garibi in their favour. According to respondent No.1, Smt. Garibi had not executed any will and the will dated 13.2.1991 set up by the appellants is forged and fabricated. The respondent No. 1 came to know of the alleged will of Smt. Garibi when respondent No. 1 received summons from Collector, Nalagarh. 4. The suit was contested by appellants and Budh Ram. They have pleaded that Smt. Garibi had executed a legal and valid will on 13.2.1991 in favour of appellants, who are owners in possession of the suit land on the basis of will dated 13.2.1991 of Smt. Garibi. The mutation of inheritance of Smt. Garibi was got entered and attested by respondent No. 1 in their absence by suppression and misrepresentation of facts. The mutation was challenged in appeal before Sub Divisional Collector. The suit land …3… came into the hands of Smt. Garibi from her previous husband Baggu, who was paternal uncle of appellants and real brother of Budh Ram. The respondent No. 1 is the daughter of Budh Ram. After the death of Baggu, Smt. Garibi performed Karewa marriage with Budh Ram. The suit land was handed over by Baggu to appellants, who served Smt. Garibi and Budh Ram. It was denied that Smt. Garibi was ill or she was not in a position to execute the will. 5. The respondent No. 1 filed replication and reiterated her stand. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is owner in possession of the suit land as alleged? OPP. 2. Whether deceased Garibi executed a legal and valid will dated 13.2.1991 in a sound state of mind in favour of the defendant No. 1 and 2? OPD. 3. Whether the aforesaid will is invalid & fraudulent document, as alleged? OPD. 4. Whether plaintiffs suit is not maintainable, as alleged, in preliminary objection No.1? OPD. 5. Relief. 6. The issues No. 1 and 3 were answered in affirmative and issues No. 2 and 4 in negative and suit was decreed by the learned Sub Judge on 12.9.1997. In appeal, the learned Addl. District Judge has slightly modified the judgement, decree dated 12.9.1997 while affirming the same. Thus the appellants have come in second …4… appeal, which has been admitted on the following substantial questions of law:- 1. Whether the learned courts below are right in taking into consideration the report of expert Ext. DW 5/A (sic Ex.PW 5/A) especially when the execution, attestation of the will Ext. DW 3/A stood proved beyond reasonable doubt by legatees? 2. Whether the impugned judgement and decree is result of complete misreading, misinterpretation and mis-appreciation of Sec. 15 of the Hindu Succession Act? 7. I have heard. Mr. Dinesh Bhanot, learned counsel for the appellants and Mr. Romesh Verma, learned counsel for respondent No.1 and have also gone through the record. On behalf of the appellants, it has been submitted that two courts below have erred in relying expert report Ex. PW 5/A when execution/ attestation of will Ex.DW 3/A stood proved beyond reasonable doubt. It has been submitted that the learned lower appellate court has not properly appreciated Section 15 of the Hindu Succession Act, 1956 (for short, the Act). The learned counsel for the appellants has prayed for acceptance of the appeal and dismissal of the suit. On the contrary, the learned counsel for respondent No. 1 has submitted that two courts below have recorded a finding of fact that execution of the will Ex. DW 3/A has not been proved. The finding regarding the execution of will is based upon appreciation of evidence and the evidence in second appeal cannot be re-appreciated. It has been submitted that the courts below have rightly relied expert report …5… Ex. PW 5/A in disbelieving the execution of will Ex. DW 3/A, which has otherwise not been proved. Smt. Garibi was the owner of the suit land and respondent No. 1 after the death of Smt. Garibi being the only heir of Smt. Garibi is entitled to inherit her estate under Section 15 of the Act. 8. The substantial question of law No. 2 is being taken first for disposal. Section 15 of the Act is as follows:- “15. General rules of succession in the case of female Hindus.- (i) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,- (a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband; (b) secondly, upon the heirs of the husband; (c) thirdly, upon the mother and father; (d) fourthly, upon the heirs of the father; and (e) lastly, upon the heirs of the mother. (2) Notwithstanding anything contained in sub-section (1),- (a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and (b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre- deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order …6… specified therein, but upon the heirs of the husband.” 9. It is not in dispute that land in dispute came in the hands of Smt. Garibi from her previous husband after the death of her previous husband Baggu. The clause (b) of sub-section (2) of Section 15 of the Act provides that any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of deceased not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband. In Smt. Dhanistha Kalita vs. Ramakanta Kalita and others AIR 2003 Gauhati 92, the following observations of the Supreme Court in Bhagat Ram vs. Teja Singh AIR 2002 SC 1, have been noticed:- “The source from which she inherits the property is always important and that would govern the situation. Otherwise persons who are not even remotely related to the person who originally held the property would acquire rights to inherit that property. That would defeat the intent and purpose of sub-section (2) of Section 15, which gives a special pattern of succession.” Thereafter it has been held:- “……..Notwithstanding, therefore, the fact that a female Hindu becomes a full-fledged owner of the property inherited by her from her husband, the property, on her death, will pass over to, and devolve upon, only those sons and daughters, whom she had begotten from her husband, whose property she had inherited and if there is no such issue or if such issue is not alive, then, the property, instead of devolving upon the sons or daughters whom she might have begotten from another person …7… as husband, will devolve upon the heirs of her deceased husband, whose property she had inherited……..” The respondent No. 1 is admittedly a daughter of Smt. Garibi and, therefore, in her presence the estate of Smt. Garibi will not devolve upon the heirs of husband of Smt. Garibi under Section 15 of the Act. In absence of will of Smt. Garibi, the property of Smt. Garibi will devolve on respondent No.1. The substantial question of law No. 2 is decided accordingly. 10. The substantial question of law No. 1 pertains to expert report Ex. PW 5/A. The precise submission of learned counsel for the appellants is that appellants have independently proved the execution of will Ex. DW 3/A by leading oral and documentary evidence. In presence of positive evidence regarding the execution of will Ex. DW 3/A, the expert report Ex. PW 5/A pales into insignificance. The appellants have examined DW 2 Satish Kumar, Document-writer, who has stated that he has seen the original will and Ex. DW 2/A is the copy of original will, which was scribed by him. The will was got executed by Smt. Garibi, the attesting witnesses were Hukam Chand Lambardar and Pohu. Hukam Chand has died. In cross-examination, he has stated that Smt. Garibi was not personally known to him. 11. DW 3 Pohu Ram has stated that will Ex. DW 3/A was got executed by Smt. Garibi in favour of Gita Ram and Lajja Ram. Smt. Garibi had put her thumb mark on the will. Hukam Chand, he were the attesting witnesses of the will. They appeared before the Tehsildar and on asking of Tehsildar Smt. Garibi accepted the …8… execution of the will. Smt. Garibi was about 70 years of age. He has also stated that after the will was scribed, their signatures and thumb marks were obtained. Thereafter, he and Budh Ram returned to village with Smt. Garibi. It took about half an hour for scribing the will. They did not go anywhere. They reached Nalagarh at about 11.00 a.m. He has admitted that from the land in dispute, he has purchased 3 biswas land from the appellants. A copy of sale deed is Ex. PA. 12. DW 4 Budh Ram has stated that Smt. Garibi had executed a will in favour of Gita Ram and Lajja Ram. The will was scribed at Nalagarh. He and Pohu Ram witness came alongwith Smt. Garibi. The will was scribed by the deed-writer and it was presented before Tehsildar. DW 5 Daulat Ram has stated that plaintiff is the daughter of Smt. Garibi and they had cordial relations. PW 5 Dr. B.R. Sharma, Retired Director, State Forensic Science Laboratory has proved report Ex. PW 5/A in which he has concluded that prints Q -1 to Q -4 and prints A-1 to A-3 are from different source. Hence, the will is forged as it does not carry genuine thumb prints of Smt. Garibi. This witness was cross-examined at length. 13. The execution of Hindu will must meet the requirement of Section 63 of Indian Succession Act. The evidence led by the appellants for proving execution of will Ex. DW 3/A is to be tested in the light of requirement of aforesaid Section 63. DW 2 Satish Kumar has stated that Smt. Garibi was not personally known to him. The identity of Smt. Garibi at the time of execution and registration of the will is very much relevant in view of the plea of respondent No. 1 that …9… some other person was presented in place of Smt. Garibi at the time of execution and registration of the will. 14. DW 3 Pohu Ram has stated that he and Hukan Chand had signed the will as attesting witnesses. He has not stated who identified Smt. Garibi before the Tehsildar. DW 2 has stated that Hukam Chand has died. The learned Sub Judge in para-16 of the judgement has recorded a finding that Hukam Chand was neither resident of the village of testator nor known to her. He was resident of village Gharot, which is situated at a distance of 25-30 kilometers from village Billanwali. 15. DW 4 Budh Ram claims that he was present at the time of execution and registration of the will. He has nowhere stated that at the time of execution of will Ex. DW 3/A Hukam Chand was also present. He has, however, stated about the presence of Pohu Ram. This witness has also not stated who identified Smt. Garibi before Tehsildar. The presence of Hukam Chand at the time of execution of the will becomes suspicious in view of statement of DW 4 and, therefore, it cannot be said that will Ex. DW 3/A has been validly executed as per Section 63 of the Indian Succession Act. DW 3 Pohu Ram is an interested witness. He has admitted that he had purchased 3 biswas land out of suit land from the appellants. No doubt, the will Ex. DW 3/A is a registered document, but registration of the will is of no help to appellants when there is no evidence of due execution of the will. There is no evidence who identified Smt. Garibi before Sub-Registrar at the time of registration of the will. Smt. Garibi was 70-80 years of age and was not keeping good health. The …10… appellants are the beneficiaries of the will Ex. DW 3/A, and, therefore, it was for them to prove due execution of the will. The execution of the will has been further shrouded with suspicion in view of expert report Ex PW 5/A, according to which, will is forged as it does not carry genuine thumb prints of Smt. Garibi. 16. The contention of the learned counsel for the appellants that the courts below have erred in relying expert report Ex. PW 5/A in presence of positive evidence of execution of will Ex. DW 3/A, but on facts which have come on record, this contention has no force. The execution of the will has not been proved rather it is shrouded by suspicious circumstances. In these circumstances, the two courts below have committed no mistake in relying report Ex.PW 5/A for rejecting the will of Smt. Garibi. PW 5 has been cross-examined at length but he stated nothing in the cross-examination for the benefit of appellants. It cannot be said that report Ex. PW 5/A is wrong and cannot be relied. The view taken by the two courts below regarding the will emerges from the evidence on record. There is no perversity in the impugned judgement, decree. The substantial question of law No. 1 is accordingly decided against the appellants. 17. No other point was urged. 18. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to cost. June 14, 2010. ( Kuldip Singh ), (Hem) Judge.