1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 78 of 1995. Reserved on : 22-7-2008. Date of Decision: August 12 ,2008 ____________________________________________________________ Basant Lal Appellant. Versus Rama Nand and others. Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. G.C. Gupta, Sr. Advocate with Mr. Deepak Gupta, Advocate. For the respondents : Mr. Vinay Thakur, Advocate, for respondent No.1. _________________________________________________________ Surinder Singh, J The appellant/defendant has directed this regular second appeal against the judgment and decree dated 31.10.1994 passed by learned Additional District Judge (I) Shimla, whereby the judgment dated 31-8-1990 passed by learned trial Court has been affirmed and the will propounded by Anant Ram in favour of the appellant was disbelieved and the suit seeking the relief of permanent perpetual injunction and damages filed by the respondent-plaintiff was decreed. The appeal was admitted on the following substantial questions of law :- 1. Whether the deceased Shri Anant Ram executed a valid and genuine will in favour of the appellant? 2. Whether the appellant has been able to remove the suspicious circumstances surrounding the execution of the will? Whether reporters of the Local papers are allowed to see the judgment? 2 3. What is the effect of misreading and mis-appreciation of the oral as well as documentary evidence? The above substantial questions are inter-linked, therefore, taken up together for its right decision In brief, the facts of the case giving rise to the present appeal are that respondent Rama Nand, hereinafter called the “plaintiff”, had filed a suit based upon his title, for perpetual injunction restraining the appellant and proforma respondents, hereinafter called the “defendants”, from causing any interference in to the suit land and also claimed damages to the tune of rupees 500/- for removing the grass from the suit land. According to the plaintiff, he being the owner in possession of the suit land, had planted apple plants in the year 1977-78 and developed it as an orchard. The first sample crop came up in the year 1988. Besides harvesting the fruit crop, he also used to cut grass from the orchard. The defendants had no right to cause any interference into the suit land. It is alleged that on 15-10-1988, at about 11.00 a.m, the defendants formed an un-lawful assembly and committed trespass and removed the grass worth Rs.500/-, when the plaintiff intervened, they threatened him with dire consequences. Thus, he sought injunction and also prayed for damages as aforesaid. The suit was resisted and contested by the defendants. In their written statement, the ownership and possession of the plaintiff has been denied. The defendant No.1 asserted the will dated 18.5.1990 in his favour. There is no mention in his reply as to who had bequeathed the property in his favour. However, he alleged that the mutation of inheritance in favour of Kaul Dassi is under challenge. According to the defendants, the revenue entries 3 in favour of the plaintiff are wrong. The apple plants were planted by defendant No.1 along with Shri Anant Ram. The defendants also took preliminary objections that the suit was not maintainable and was bad for misjoinder of parties and prayed the dismissal of the suit. The plaintiff chose to file the replication and denied the preliminary objections. On merits, reaffirmed even the paras of the plaint and denied that mutation of inheritance in favour of Kaul Dassi was under challenge and that she had no right to transfer the land. It was alleged by him that the will asserted by the defendant is a forged document and defendant Basant Lal had specifically averred before the Collector Rampur Bushehar that his will was lost from the record of Assistant Collector 2nd Grade Kumarsain and requested to direct the said officer to trace out the same, but it was not pleaded from where he got and produced the alleged will. He also pleaded that the apple plants were planted by deceased Aanant Ram and his wife Kaul Dassi with his help. He specifically denied the possession of defendant No.1 over the suit land. On the pleadings of the parties, the trial Court framed the following issues:- 1. Whether plaintiff is in possession of the suit land? OPP. 2. Whether plaintiff is entitled to the relief of injunction? OPP. 3. Whether deceased Anant Ram executed a valid will on 18.5.80, if so, its effect? OPD. 4. Relief. To prove its case, the parties led its evidence. After hearing the parties, the learned trial Court decided Issue No.3 against the defendant No.1 and other issues in favour of the Plaintiff, accordingly decreed the suit. The defendants’ appeal was also 4 dismissed by the first appellate Court. Now in this Regular Second appeal, the defendant has assailed the judgment and decrees passed by the learned courts below. Shri G.C. Gupta, ld. Senior Advocate has taken pains to show that the will in question is a legal and valid document and the suspicious circumstances above, area of no consequence. According to him, execution of will stood proved, the testator at that time was proved to be of a sound and disposing state of mind, the another witness of the will named Kania, was not deaf at the time of execution of the will. The testator did not rely upon his wife Kaul Dassi as admitted by him in his will and belief came true that after his death, with the execution of gift deed in favour of the plaintiff, she left the matrimonial house. He placed his reliance on AIR 1947 PC, 15, AIR 1972 Pat 146, AIR 1972 SC 2492, AIR 1987 SC 767, 1995 Supp. (3) SCC 401, (1996) 11 SCC 626 and AIR 1997 HP 43. Shri Bhupinder Gupta, ld. Senior Advocate for the plaintiff while supporting the judgment and decree passed by the courts below, argued that there are concurrent findings of fact against the defendant/appellant which have been rightly and correctly appreciated by the courts below and cannot be re-opened. Further that no law point is involved much less the substantial point of law. The legal proposition as propounded in the case law cited is not disputed but in the facts and circumstances it is not attracted. I have given my thoughtful consideration to the rival contentions of the parties and have examined the record. FINDINGS ON ABOVE SUBSTANTIAL QUESTIONS OF LAW. Shri Anant Ram husband of Kaul Dassi (PW4) was the owner of the suit land. He had no issue. Plaintiff was the nephew of 5 Anant Ram. It came in the evidence that in the year 1976, Anant Ram had executed the Gift deed qua half of his share in favour of defendant No.1 and also executed the will qua the remaining half, which was duly registered. Later some dispute arose between them. He disputed the gift deed and cancelled the will. However, after some time, there was a compromise and the gift qua half of his estate remained intact in favour of defendant No.1. Anant Ram died on 19.5.1980, his estate devolved on his wife Kaul Dassi. She inherited the remaining half share of Anant Ram her husband. She executed a gift deed Ex.P2 (placed on record in appeal u/o 41 Rule 27 CPC) on 8.7.1980 in favour of the plaintiff, its mutation Ex.R1 was also sanctioned in his favour. The name of the plaintiff was duly incorporated in the missal haquiat Ex.R3 with respect to the disputed land. The plaintiff has been shown as owner in possession through out. The defendant No.1 asserted the will Ex.DW2/A alleged to have been executed by Anant Ram on 18.5.1990, in his favour. It is an admitted fact that Anant Ram remained ill for couple of days, prior to the alleged execution of the will aforesaid and expired, the very next day in the evening i.e. on 19.5.1980. He was aged about 75 years. The highlights of the will (Ex.DW2/A) are that the cancellation of the earlier will is admitted. The wife Kaul Dassi is disinherited on the ground that she was already given jewelery by the deceased and testator believed that after his death she might sell off the property to some other person. Amin Chand (DW2) is the scribe, Sangat Ram (DW3) and Kania (not examined) are the marginal witnesses. The will Ex.DW2/A is scribed on the judicial paper. Defendant Basant Lal was present at the time of alleged execution of the will. 6 Precisely, the witnesses of the will stated that Anant Ram was ill and was bed-ridden, but he was in his senses. He provided the judicial paper to Amin Chand scribe and he scribed the will at the instance of the testator, it was read over to him and he appended his signatures and the witnesses also signed the said document in his presence. Sangat Ram could not detail the property which was bequeathed. DW1 Basant Lal also stated that Kania, the another witness of the will was deaf. PW4 Kaul Dassi deposed, she remained with her husband till his death. Her husband did not evacuate any will as propounded, by defendant No.1. However, she stated that Anant Ram considered her ‘Pardeshi’ (foreigner) and he used to keep everything secret and under lock and key from her. PW5 Ram Saran Patwari has stated that defendant No.1 came with a will to him after about 7/8 days of entering the mutation in the name of Kaul Dassi, which was on an ordinary paper and not on judicial paper, but he did not enter the mutation on its basis as mutation of inheritance qua the estate of Anant Ram was already entered. He specifically denied having shown the will Ex.DW2/A scribed on the judicial paper. In cross-examination Amin Chand (DW2) stated that he had gone to the house of the deceased to enquire about the health of Anant Ram since he was ill for the last so many days. He had admitted in the cross-examination that Basant Lal was the son of his Bua (father’s sister). He did not know about the earlier compromise effected between the deceased and the defendant. He further stated that he scribed the will around 12.00 noon and Anant Ram was complaining pain all over his body and at that time, his age was around 70 to 75 years. He stated that his wife remained with him till his death. 7 Learned trial Court on the basis of the aforesaid evidence decreed the suit and while rejecting the will Exhibit PW2/A, held that it was shrouded by the following suspicious circumstances:- a) Anant Ram was ill for the last so many days and was bed- ridden. His wife Kaul Dassi remained with him till his death and she deposed that no such will was ever executed by the deceased. b) The alleged will was executed on 18-5-1980 and Anant Ram died the very next day because of the prolonged illness; c) Though deceased Anant Ram had gifted half of the property to Basant Ram and had executed registered will in favour of the defendant earlier but a dispute arose in between him and defendant No.1, thus he cancelled the will due to the strained relations. Thus there was no reason to execute another will in his favour again especially when the previous will was revoked; d) Kaul Dassi wife of Anant Ram was dis-inherited. Though this fact ip-so-facto is not sufficient to throw out the will but if it is taken into account along with other factors, it does make the alleged will a suspicious circumstance; e) If Kania was deaf, then he ceased to be attesting witness as he could not hear what deposition was made by Anant Ram in his presence, thus the requirement of two attested witnesses is not complied. f) Amin Chand scribe is a relative of Basant Lal, he did not say what type of depositions were made by Anant Ram. g) PW5 Hari Dutt deposed that he alongwith Sangat Ram (DW2 attesting witness) were present at Hattu on 18.5.1980 with a deputation to meet the Ministers there with respect to opening of dispensary from morning till evening, therefore, the presence of Sangat Ram on that day in the house of Anant Ram was not possible and no evidence was brought to controvert him. h) The defendant No.1 admitted to have presented the will Ex.DW2/A after the lapse of one year, which is alleged to have been found with his brother, but in grounds of 8 appeal Ex.PE, before the Sub Divisional Collector he had mentioned that the will was presented to AC II Grade, who had misplaced the same and he should be directed to trace it out, but defendant did not disclose how it was later on found with his brother. i) According to Ram Saran Patwari, the defendant had presented a will for attesting the mutation which was on a ordinary paper and specifically denied that the will Exhibit DW2/A on judicial paper was presented to him. J) The onus to prove the will laid heavily on Basant Ram the propounder of the will which he failed to discharge, thus he could not establish that the will in question was a validly executed document. I have examined the judicial precedents cited above and have carefully scanned the circumstances surrounding the will, in my opinion the defendant had failed to repel the above circumstances. When Anant Ram had already cancelled the registered will executed earlier, there was no plausible ground to bequeath the properly again in the name of defendant. This fact remained unexplained in the evidence of the defendant that what compelled Anant Ram to execute the will in favour of the defendant a day earlier to his death. The statement of Ram Saran Patwari also creates the suspicion about its authenticity. Learned first appellate Court examined all these circumstances detailed above and rightly up-held the findings arrived at by the learned trial Court. Thus, in the circumstances which have been brought on record, in my opinion, there is no misreading or mis-appreciation of oral as well as documentary evidence by both the courts below. The circumstances which have been put-forth makes the will in question a dubious document and the appellant was not able to remove the suspicious circumstances surrounding the will. 9 Therefore, the cumulative effect of the aforesaid circumstances raises a doubt on the valid execution of the will. Therefore, the concurrent findings of the courts below cannot be interfered with. Hence the appeal is dismissed with costs. (Surinder Singh) Judge. August 12, 2008. (bm)